Maljkovic v Fairfield City Council [2005] NSWLEC 481

Land and Environment Court of New South Wales

CITATION : Maljkovic v Fairfield City Council [2005] NSWLEC 481

APPLICANT Nicola and Anica Maljkovic PARTIES : RESPONDENT Fairfield City Council

FILE NUMBER(S) : 11494 of 2004

CORAM: Nott C

Development Application :- boarding house - unlawfully commenced use - required to cease pending fire-safety upgrade to meet Building Code of Australia standards- parking - development consent granted by consent to amended plans KEY ISSUES:

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

DATES OF HEARING: 16/03/2005 (site inspection), 25/05/2005 (mention), 16/09/05 EX TEMPORE JUDGMENT DATE : 08/16/2005

APPLICANT Mr G McKee, solicitor SOLICITORS McKees LEGAL REPRESENTATIVES: RESPONDENT Mr A J J Thompson, barrister SOLICITORS Ritchie & Castellan

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Nott C

16 August 2005

11494 of 2004: Nicola and Anica Maljkovic v Fairfield City Council

JUDGMENT

1 COMMISSIONER NOTT: This is an appeal against the council's refusal of a development application for a boarding house at 36 Linda Street, Fairfield Heights. 2 A boarding house in fact was conducted at the premises unlawfully in conjunction with a lawful use being the use of part of the premises for a shop. Various orders were made by myself relating to the cessation of the use as a condition for the granting of an adjournment of the proceedings to enable detailed consideration to be given to what would need to be done to the premises to make it suitable for a boarding house. 3 From the inspection, it seemed to me that the (unaltered) premises were unsuitable for a boarding house from a fire-safety point of view. Subsequently, the applicants obtained further expert evidence from a fire consultant (Mr G Scheffers of Blackett Maguire), who made detailed recommendations, and amended plans were prepared (exhibit A). 4 I am informed by Mr A J J Thompson, counsel for the council, that the report of Blackett Maguire has been examined by Mr S Poulter, the fire co-ordinator and safety officer of the council and that the premises as now proposed to be altered, subject to conditions which have been agreed by the parties, will be satisfactory. 5 Originally, there were to be more boarders than are presently proposed, and the numbers have now been limited having regard in particular to the lack of sufficient on-site parking. Two parking spaces at the rear of the site will however be able to be made available for the sole use of boarders. Another space will be available for the shop use, which will continue. The parking situation is a matter of importance because the subject premises are on the corner of Linda Street and The Boulevard, and The Boulevarde is a busy road. 6 There were objections to the proposal and I heard evidence at the site from Ms T Caldarella of 31 Dawson Street, who was concerned about traffic and parking matters, privacy and noise. In view of the now more limited proposed boarding use, I am of the opinion that the proposed use will be acceptable. 7 I take into account the statement of basic facts that has been filed and I am of the opinion that the proposed use is consistent with objectives of the zone. There was also other evidence presented to the Court at the site from a consultant traffic engineer and a consultant town planner on behalf of the applicant favouring the granting of consent. 8 Accordingly, the orders of the Court are by consent: 1) The appeal is upheld. 2) Development application 1545/2004 for the use of Lot 1 and Lot 2 section 3 in Deposited Plan 948 known as 36 Linda Street, Fairfield Heights, as a boarding house is determined by the granting of development consent subject to the conditions set out in Annexure A hereto. [The annexure is not reproduced in this internet version of the judgment.] 3) The exhibits, other than exhibits A and B, may be returned. ____________ A J Nott Commissioner of the Court rjs