Land and Environment Court of New South Wales CITATION : City Apartments Parkridge Pty Limited v Sydney City Council [2009] NSWLEC 1225 APPLICANT City Apartments Parkridge Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11139 of 2008 CORAM: Murrell C KEY ISSUES: APPEAL :- Section 121ZK appeal against Council Order to cease operation of units for the purpose of serviced apartments without development approval. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan DATES OF HEARING: 29 May 2009 EX TEMPORE JUDGMENT DATE : 29 May 2009 APPLICANT Mr P Clay (barrister) LEGAL REPRESENTATIVES: RESPONDENT Mr M Fozzard (solicitor) City Prosecutors Office JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 29 May 2009 11139 of 2008 CITY APARTMENTS PARKRIDGE PTY LIMITED v SYDNEY CITY COUNCIL This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal under s 121ZK of the Environmental Planning and Assessment Act against an order under s 121B of that Act by the City of Sydney Council. The council issued the order on 15 October 2008 to the applicant in these proceedings and the orders sought by the council are such that the applicant cease the operation of the use of any of the units within the subject premises at 6-14 Oxford Street, Darlinghurst, for the purpose of serviced apartments. 2 The locality is a mixed use business area and zoned under the South Sydney LEP as Business 3. The subject site is at the western end of Oxford Street in the Liverpool Street/Hyde Park precinct. On the subject site is a building erected in 1981 for then residential purpose containing some 120 units. 3 Currently, there is a serviced apartment business conducted from the subject premises with 33 units, for short-term stay, out of the total of 120 units in the building. The current business proprietors have been operating the business since 2000 and units are generally leased out on a weekly basis. The serviced apartments within the building have been leased out since approximately 1990. 4 The council issued the order on the basis of a complaint received in terms that the applicant did not have development approval to conduct the use of any of the units for the purpose of serviced apartments. The applicant in these proceedings is seeking to have the order modified, such that the period of time for the operation of the order would be until 30 June 2010. 5 By way of background after this appeal was lodged against the issuing of the order, the applicant lodged a development application with the City of Sydney Council for use of units within the building for serviced apartments. It is noted that serviced apartments are separately defined under the current LEP and are a permissible use. At the time that the building was constructed, the approval was granted under the City of Sydney Planning Scheme Ordinance of 1971, wherein serviced apartments were not separately defined but were caught by the definition of 'residential flat building'. 6 The council subsequently refused the development application for serviced apartments operating from the building and has issued a determination to that effect. The applicant in these proceedings has commenced separate action with the CTTT to overcome consent for the development application from the body corporate not being given and other issues that are not matters for this Court. It is understood that the CTTT will be considering the matter later this year. 7 The Court, in its assessment of the order, has the opportunity of inspecting one of the subject units and the area in general. As I stated, this is a business zone wherein residential flat buildings are permissible in their own right, as are serviced apartments, as are hotels and as are other commercial premises. 8 The Court, in its deliberations of this matter, must have regard to the circumstances of the case. As the respondent has told the Court, the period of time for the order to be complied with is a matter for the Court. 9 In all of the circumstances, it seems to the Court that it is not inappropriate or unreasonable to allow the use to continue to operate to 30 June 2010. I say this by way of the fact that I must have regard to the history of the matter as a circumstance of the case, as well as the practicalities. This is a long-established business within the building and I am advised that the bookings extend until at least March of next year. 10 In my assessment, it is not unreasonable to allow the opportunity for a transition and for the final determination of the development application which has been refused by the council. But the applicant still has the right of appeal under the Environmental Planning and Assessment Act and indeed that appeal could not be considered until such time as the CTTT has made its deliberations. The appeal right would cease on 13 March 2010. In the circumstances I consider that it is appropriate to allow the period indicated by the applicant to 30 June 2010 for the use to cease. 11 The applicant has provided the Court with judgments of her Honour, Justice Pain, in the Council of the City of Sydney and Waldorf Apartments Hotel Sydney Pty Limited, [2008] NSW LEC 97 and the further judgment of her Honour, Number Two, [2008] NSW LEC 122. In this case, her Honour had regard to the fact that the use was an established business operating and it was not unreasonable to allow its continuation for a certain period. I note that there are some distinctions between the facts of that matter and this matter. I also note that previous judgments from this Court were referred to, but it is also noted that serviced apartments in those instances were prohibited. In the circumstances of this case, serviced apartments are a permissible use and therefore the applicant should be given the reasonable opportunity for the final determination of its development application. 12 Therefore, the orders of the Court in this matter are: 1. The s 121ZK appeal in respect of the premises known as 6-14 Oxford Street, Darlinghurst, is allowed in part. 2. The order dated 15 October 2008 pursuant to s 121B, of the number 1B, Environmental Planning and Assessment Act 1979 from the respondent to the applicant is modified by deleting in the order under the heading of 'Period' which states currently 150 days and insert in lieu thereof, 'This order shall be complied with by 30 June 2010'. 3. The plan of management in exhibit B is to operate for the serviced apartments. 4. The exhibits are retained for the Court's file. ___________________ J S Murrell Commissioner of the Court ajl 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.