Fishfood Holdings Pty Ltd v The Hills Shire Council [2010] NSWLEC 1127

Land and Environment Court of New South Wales

CITATION : Fishfood Holdings Pty Ltd v The Hills Shire Council [2010] NSWLEC 1127

APPLICANT Fishfood Holdings Pty Ltd PARTIES : RESPONDENT The Hills Shire Council

FILE NUMBER(S) : 10208 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- conversion of an existing take away shop to another take-away food shop - signage

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005 State Environmental Planning Policy No 64 -.Advertising and Signage Baulkham Hills Development Control Plan Signage

DATES OF HEARING: 18 May 2010

EX TEMPORE JUDGMENT DATE : 18 May 2010

APPLICANT Mr A Walmsley, solicitor SOLICITORS A R Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT Mr C Winn, solicitor SOLICITORS The Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

18 May 2010

10208 of 2010 Fishfood Holdings Pty Ltd v The Hills Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by The Hills Shire Council (the council) of Development Application No. 271/2010/HC for the conversion of an existing take away shop (a delicatessen) to another take-away food shop (KFC), including dine in, drive-through and walk up window facilities and signage at 2 Commercial Road, Rouse Hill (the site). 2 The building to house the proposed take-away food shop forms part of the Mean Fiddler Hotel complex. The principle signage for the hotel is a pylon sign of a height of around 10 m, 2.4 m wide and located on Windsor Road around 25 m from the intersection of Commercial Road. An identified heritage item of regional significance (the Former Royal Oak Inn) is used as part of the hotel complex. 3 On 13 May 2010, the council issued a development consent for the proposed development however not all conditions in the development consent were acceptable to the applicant. The conditions in dispute were: - Condition 1: this condition identifies the approved plans but also contains a requirement for the "Deletion of main pylon sign". - Conditions 13 and 29: these conditions address operating hours but are inconsistent with each other as condition 13 requires an overall closing time of 10 p.m. whereas condition 29 provides for the drive-through and walk up window facilities to operate til 12 midnight 7 days per week. There was agreement between the parties that the inconsistency between the conditions could be addressed through the deletion of the words "An overall closing time of 10 p.m." in condition 13. 4 Mr Walmsley, for the applicant, made an application to amend the appeal to an appeal under s 97(2) of the EPA Act as the dispute now centred on "a condition opposed under section 80A(2)". Leave was granted for this amendment. 5 The proceedings were conducted as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), initially on site and later at the council's library at Rouse Hill. On site, Superintendent Waites, Senior Constable Crick, the Traffic Supervisor and Constable Walker, the Crime Prevention Officer from The Hills Local Area Command provided evidence. Superintendent Waites and Constable Walker opposed the proposed hours of operation and particularly the walk up window facilities given the poor record of the Mean Fiddler Hotel for anti-social behaviour, assaults and drink-driving incidents. In their opinion, this facility would encourage patrons to congregate at the site after leaving the hotel. Senior Constable Crick indicated potential safety issues with intoxicated patrons using the car park to gain access to the walk up window facility, as well as concerns regarding right turn movements out of the site. 6 The matters raised by the officers of The Hills Local Area Command were also provided to the council in their assessment of the development application, including the attachment of their letters of objection to the report of the council officer. The council officers report addresses their concerns in some detail and while the conclusions of the council officers do not align with the concerns of the police officers, I am satisfied that full and proper consideration has been given to their concerns by the council and it is not necessary to reconsider the matters raised by the police. 7 The remaining issue in the proceedings relates to the main pylon sign. The council maintains the proposed sign, measuring 8.5 m in height, 2.1 m in width at the top, around 1.2 m at its base and containing the letters "KFC", the words "Drive Thru" and a head and shoulders portrait was unacceptable because it would create a proliferation of signs on the site, use an uncharacteristically large proportion of unsympathetic red polycarbonate material and unacceptably impact on the nearby heritage item. 8 Following further discussions between the parties, no agreement was reached and the conciliation conference was terminated in accordance with s 34(4) of the Court Act. The parties consented to me disposing of the proceedings forthwith (s 34(4)(b)(i)) and on the basis of what had occurred at the conciliation conference (s 34(4)(b)(ii)). 9 During the conciliation phase of the proceedings, the applicant had proposed a number of amendments, including the deletion of the proposed 6 m high by 3.1 m advertising sign over the entrance to the take-away shop and the use of solid materials, similar to that of the existing pylon sign for the hotel, except for the area of the letters "KFC", the words "Drive Thru" and the head and shoulders portrait which are to be illuminated. There was also some misunderstanding on the site view as to the location of the proposed pylon sign. While the plans indicated the pylon sign to be located on the corner of Windsor Road and Commercial Road, the sign is to be located in Commercial Road around 20 m from a corner.