Alzoubi v Council of the City of Sydney [2009] NSWLEC 1404

Land and Environment Court of New South Wales

CITATION : Alzoubi v Council of the City of Sydney [2009] NSWLEC 1404

APPLICANT Muh'd Alzoubi PARTIES : RESPONDENT Council of the City of Sydney

FILE NUMBER(S) : 10536 of 2009

CORAM: Pearson C

DEVELOPMENT CONSENT :- Modification application KEY ISSUES: Convenience store 24 hour trading

Borg Architects Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1305 Garlick v Randwick City Council [2009] NSWLEC 1012 CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Zhang v Canterbury City Council (2001) 115 LGERA 373 Stockland Pty Ltd v Manly Council [2004] LGERA 472

DATES OF HEARING: 19 November 2009

DATE OF JUDGMENT: 3 December 2009

APPLICANT Dr S Berveling, barrister LEGAL REPRESENTATIVES: INSTRUCTED BY ANB Lawyers RESPONDENT Mr A Hawkes, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

3 December 2009

10536 of 2009 Muh'd Alzoubi v 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) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent D/2004/294 for premises at 38-46 Oxford St Darlinghurst (the premises). 2 The premises are located on the ground floor of a three-storey building on the northern side of Oxford Street Darlinghurst, between Liverpool Street and Oxford Square, and operate as a convenience store. Development consent D/2004/294 was granted on 30 April 2004 for fit out and use of the ground floor shop as a convenience store, with approved hours 8 am to 11 pm Mondays to Saturdays and 10 am to 10 pm Sunday. On 31 October 2006 a s96 application was approved to enable 24-hour trade seven days for a 12 month trial period. On 8 April 2008 a further s96 application was approved for 24-hour trade seven days for a further 12 month trial period, and the base hours of operation were increased to 6.00 am to 2.00 am the following day. 3 The applicant sought in the modification application that is the subject of these proceedings approval for 24-hour trade seven days for a further two-year period. The Council refused the application on the ground that unrestricted trading may affect the environmental amenity of the area and would not be in the public interest, and amended condition 46 to restrict hours of operation to between 6.00am and 2.00am the following day.