Millett v Leichhardt Council - [2007] NSWLEC 10

Land and Environment Court

of New South Wales

CITATION: Millett v Leichhardt Council [2007] NSWLEC 10

PARTIES:
APPLICANT
Brendan Millett
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 10330 of 2006 and ; 10827 of 2006

CORAM: Hussey C

KEY ISSUES: Development Application :- Section 96 modification for late night trading premises, noise, traffic, parking

LEGISLATION CITED: Environmental Planning and Assessment Act
Leichhardt Local Environmental Plan

CASES CITED: Vinson v Randwick Council [2005] NSWLEC 142;
Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277;
Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778

DATES OF HEARING: 02/03-11/2006

DATE OF JUDGMENT:
15 January 2007

LEGAL REPRESENTATIVES:
APPLICANT
Dr S Berveling, barrister
SOLICITORS
S Walker & Associates
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 January 2007
10330 and 10827 of 2006 Brendan Millett v

Leichhardt Council

JUDGMENT Background

1 These proceedings comprise two appeals arising out of council’s refusal to grant s 96 Modifications for the development and use of a commercial/residential property situated at 732 - 735 Darling Street, Rozelle. The property is known as “The Barn”.

2 The subject property is situated on the corner of Darling Street and Cambridge Street and the original consents referred to:

D/2001/236, which approved alterations and additions to a commercial building to facilitate its use as a grocer, cafe, espresso bar, cooking classes and to amend or delete numerous conditions relating to the ongoing operations of the premises including some trading until 10.00 p.m.

D/2002/597, which approved the construction of a 2-storey addition containing 5 new dwellings, above part of the commercial area.

3 The proposed modifications are mainly for the extension of the use and operating hours for the alfresco dining area, which is situated at the rear of the commercial area. Also, the amendment and deletion of other conditions relating to the ongoing operations of the premises.

4 A number of issues were identified, which for convenience can be summarised as follows:

Traffic and parking impacts, in terms of unacceptable increased levels of traffic movements/congestion and availability of adequate on-street parking spaces;

Noise and anti-social behaviour impacts on the amenity of adjoining properties,

Public interest considerations.

5 In order to assess these issues, the parties agree to the appointment of Mr C McLaren as the Court appointed expert for traffic. Also, the appointment of Ms A McCabe as the Court appointed expert for planning.

The site

6 The subject land is located on the north-western corner of Darling Street and Cambridge Street, Rozelle. It comprises 5 allotments, two with a north-west/south-east orientation fronting Darling Street (Lots 41 and 42 DP 977850) and three lots with north-east/south-west orientation fronting Cambridge Street (Lot A DP 70494, Lots 43 and 47 DP 977850).

7 The property has a 20.73 m frontage to Darling Street and a 57.35 m frontage to Cambridge Street, comprising a total area of approximately 1322 sq m.

8 The subject site presently accommodates a single…

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: [2007] NSWLEC 10
Decision Date: 15 January 2007

CaseChat Overview and Summary

The case of Millett v Leichhardt Council involved a dispute concerning the grant of Section 96 Modifications for the development and use of a commercial/residential property known as "The Barn" in Rozelle. The applicant, Brendan Millett, sought modifications to the existing consents for the property, including extending the hours of operation for the alfresco dining area until 10 p.m. and modifying various conditions related to the ongoing operations of the premises. The Leichhardt Council had refused to grant these modifications, citing concerns about traffic, noise, and parking impacts on the surrounding neighbourhood. The Land and Environment Court of New South Wales was tasked with deciding whether the proposed modifications should be approved. The Court found that the proposal to extend the hours of operation for the alfresco dining area until 10 p.m. was not unreasonable, given that the site was located within a late-night trading precinct. The Court also considered the evidence presented by the Court-appointed experts and the objections raised by the neighbours. The Court concluded that the proposed modifications could be allowed for a trial period until 1 July 2008, subject to additional conditions of consent aimed at managing the potential adverse impacts on the neighbourhood. These conditions included the enclosure of the alfresco dining area to contain noise emissions, control of the car park, additional management procedures, and the maintenance of a complaints register to monitor neighbourhood impacts. The Court allowed the appeals and granted the Section 96 Modifications to the existing consents, subject to the specified conditions.

Orders