Land and Environment Court of New South Wales CITATION : Erolyarn v City of Sydney [2006] NSWLEC 631 APPLICANT Erolyarn Pty Limited PARTIES : RESPONDENT The Council of the City of Sydney FILE NUMBER(S) : 10160 of 2004 CORAM: Brown C KEY ISSUES: Appeal :- modification of development consent - trial period - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 29/09/06 EX TEMPORE JUDGMENT DATE : 09/29/2006 APPLICANT Ms M L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 29 September 2006 10160 of 2004 Erolyarn Pty Limited v The Council of the City of Sydney JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the Council of the City of Sydney (the council) to modify DA No. U03-00914 that consented to the use of the premises at 1 – 17 Euston Rd, Alexandria for the retailing of homewares and appliances. 2 By way of background, consent (DA No. U02-00407) was granted on 9 September 2002 for a one-year trial to use the premises for the retailing of homewares and appliances. The consent was taken up in November 2003. A further application to continue the use the premises for the retailing of homewares and appliances (DA No. U03-00914) was lodged on 26 November 2003 and was refused by the council on 4 February 2004. 3 An appeal was lodged against the council's refusal of 4 February 2004 (Colin Dalton Pty Limited v Sydney City Council, 10160 of 2004). The appeal was upheld on 7 June 2004 with condition 1 relevantly stating: 1) That the use of the premises for the retailing of homewares and appliances shall cease three (3) years from the date that this consent is granted. A further development application for the continuation of the use may be lodged for council's consideration prior to the expiration of this consent. 4 The modification application, the subject of this appeal seeks the deletion of condition 1. 5 The council opposed the modification application, as the use was only 28 months into the 36 month trial period required by condition 1. The specific issue raised by the council was that: The retail premises have not been operating for a sufficient period to establish whether the impact on the amenity of nearby residents by reason of increased traffic and hours of operation is acceptable. 6 The council also raised the issue of whether the proposed development was in the public interest. The Statement of issues indicates that a total of 35 objections were received during the public notification process although the council officers report indicates only a single objection. At the hearing Mr Kondilios stated that he has been instructed that the council's records indicate 35 objections had been received however copies of the objections could not be found and were subsequently not available to the Court. 7 As I understand, the principle concern of the council and local residents relates to shopper buses visiting the site and the consequent impact of the buses on the amenity of nearby residential area. I note that council is not opposed in principle to the use in this location but is not convinced that the applicant can operate without any adverse amenity impacts for a longer period of time than they have currently been operating for. In essence, the council maintains that the abandonment of the trial period is premature. 8 In response, the applicant proposes the following additional conditions: 1. Throughout the continuance of this use, the applicant shall maintain a sign visible to Euston Road, stating that no shopper bus tours may attend these premises. 2. The Applicant and/or the operator of the premises at 1-17 Euston Road Alexandria, is not to enter into any agreement with shopper bus tour operators to attend the premises for the purpose of conducting shopper bus tours and shall not encourage the attendance of any shopper bus tours. 9 In my view adequate time has been made available from the start of the use in November 2003 to determine whether there has been unacceptable amenity impacts notwithstanding that the use is only 28 months into the most recent 36 month trial period. In most instances, a 12 month trial period should be sufficient to assess any potential impacts. I am not aware of any reason, nor did the council point out any reason why this should not apply in this case. 10 The council brought little, if any evidence to suggest that the applicant has created any impacts to support the continuation of the trial period. While shopper buses frequent the area and stop at other retail outlets, I am satisfied that the applicant does not endorse or encourage the buses to stop at the subject site. In the absence of any other concerns that may impact on the nearby residential areas I accept that condition 1 can be deleted and replaced with the conditions offered by the applicant. 11 The Orders of the Court are: 1) The appeal is upheld 2) DA No. U03-00914 for the use of the premises at 1 – 17 Euston Rd, Alexandria for the retailing of homewares and appliances is modified by the deletion of condition 1 and the replacement with the following conditions: 1A. Throughout the continuance of this use, the applicant shall maintain a sign visible to Euston Road, stating that no shopper bus tours may attend these premises. 1B. The Applicant and/or the operator of the premises at 1-17 Euston Road Alexandria, is not to enter into any agreement with shopper bus tour operators to attend the premises for the purpose of conducting shopper bus tours and shall not encourage the attendance of any shopper bus tours. 3) The exhibits are returned ____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.