Hallak v Waverley Council [2010] NSWLEC 1138

Land and Environment Court of New South Wales

CITATION : Hallak v Waverley Council [2010] NSWLEC 1138

APPLICANT Bassam Hallak PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10122 of 2010

CORAM: Tuor C

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- Condition of consent for hours of operation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Development Control Plan 2006

DATES OF HEARING: 30 April 2010

EX TEMPORE JUDGMENT DATE : 30 April 2010

APPLICANT Mr J Doyle, barrister

LEGAL REPRESENTATIVES:

RESPONDENT Ms N Jones, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

30 April 2010

10122 of 2010 Bassam Hallak v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This is an appeal against condition 2 imposed on development consent 350/2009 (development consent) granted by Waverley Council (the council) on 24 November 2009. The development consent approved a change of use to a takeaway kebab food shop at 3/164-170 Campbell Parade, Bondi Beach (the site). 2 The issues between the parties have been resolved and they are seeking consent orders from the Court. There were no objections to the original development application. 3 Condition 2 of the development consent permitted hours of operation from 6.00am to midnight, Monday to Saturday, and 9.00am to 12 midnight Sunday. The applicant sought to amend the condition to permit hours of operation from 6.00am to 2.00am Monday to Saturday and 9.00am to 1.00am Sunday. 4 The hours sought comply with clause 2.4.4 - Bondi Beach Trading Hours in Waverley Development Control Plan 2006 (DCP). The hours were recommended in a report to council on 12 November 2009. However, the report also noted the premises' history of complaints and infringements for failure to comply with trading hours and therefore recommended a one-year trial period of the operating hours beyond 1.00am. Condition 2 of the development consent imposed lesser trading hours than those recommended and without a trial period. 5 The council has now agreed to the hours previously recommended in the planning report, which are consistent with the DCP, on the basis that the applicant has also accepted a one-year trial period. 6 The issues between the parties are therefore resolved and I accept that the consent orders sought by the parties may be granted. Orders 7 By consent, the Court orders: 1. The appeal is upheld. 2. Development Application No. 350/2009 for change of use to a takeaway kebab food shop at 3/164-170 Campbell Parade, Bondi Beach is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, 3, A and B, may be returned. The court notes the intention of the parties that there be no order as to costs.