Fiorenza v Waverley Council [2009] NSWLEC 1269

Land and Environment Court of New South Wales

CITATION : Fiorenza v Waverley Council [2009] NSWLEC 1269

APPLICANT Cristina and Francesco Fiorenza PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10364 of 2009

CORAM: Tuor C

KEY ISSUES: :- Conditions of Approval, modify development consent Whether condition requiring trial period reasonable given likely impact on residential amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996

DATES OF HEARING: 5 August 2009

EX TEMPORE JUDGMENT DATE : 5 August 2009

APPLICANT Mr D Thomas, solicitor of Wellings Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms C Morton, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

5 August 2009

10364 of 2009 Cristina and Francesco Fiorenza v Waverley Council

JUDGMENT 1 This is an appeal against conditions of approval imposed on an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA565/2008 granted by Waverley Council (the council) on 24 March 2009 for premises at 2 Brighton Boulevarde, Bondi Beach (the site). 2 The only condition that remains in dispute between the parties is condition 4, which proposes a one year trial period. Condition 4 states: The approved trading hours for the premises shall be 9.00 am to 7.00 pm seven days per week. Irrespective of the above, the premises may trade from 7.00 am to 7.00 pm seven days per week for a one (1) year trial period. The trial period starts from the date of the development consent and ceases one (1) year from that date. A further application may be lodged before the expiration of the trail period to extend or make permanent the extended hours. Council's consideration of any further application will take into account the impacts of the extended hours on the amenity of the surrounding residential area and compliance with the conditions of consent. 3 The applicant seeks to amend condition 4 to allow for continuous and permanent trading from 7 am to 7 pm, 7 days a week, without a trail period. 4 The site, the history of application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Statement of Facts and Contentions in reply filed by the council. 5 The site is located on the corner of Brighton Boulevarde and Wairoa Avenue. It contains a part 1 and part 2 storey dwelling with a naturopathic clinic occupying the front corner. DA565/2008 sought to change the naturopathic use to a café/deli. 6 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996. The proposed use is not permissible within the zone but the site enjoys existing use rights. 7 The hearing was conducted on site. The Court heard resident evidence from the adjoining neighbour Mr D. Basha. His principle concern was that the proposed deli/café use was incompatible with the residential area and would result in unacceptable amenity impacts from people loitering outside, noise, litter and smoking. He stated that the use of areas outside cafes on the footpath had occurred at other cafes in the area, despite there being conditions restricted such use. Mr Basha considered a trial period to be appropriate to assess the impact of the proposal on residential amenity. 8 The Court heard expert planning evidence form Mr W Gawne, for the applicant and Mr L Kosnetter for the council. Their difference of opinion is stated in the joint report. 9 In summary, Mr Gawne considered that the trial period was unnecessary as the use with a small, low intensity operation which was unlikely to impact on residential amenity. He stated that the retail area was 20 sq m with a maximum of eight chairs and two tables inside. No external trading or serving to the street is proposed. The hours of operation were restricted to 7 am to 7 pm. The applicant has accepted conditions to this effect. 10 Mr Kosnetter considered that the proposal would be an intensification of the current use and that given the proposal relied on existing use rights for its permissibility a subjective assessment was required. Although Mr Kosnetter initially did not recommend a trial period nor consider that there would be adverse amenity impacts, he modified his view in response to the concerns raised by residents about the operation of other cafes. He now considered a trial period to be appropriate to ensure no adverse amenity impacts would result from the morning trading hours. Mr Kosnetter recognised that the controls in Development Control Plan (DCP) may be used as a guide for assessing the application and that the proposal complied with the DCP, nonetheless, in his opinion, a trial period was necessary. Findings 11 I accept the opinion of Mr Gawne. Existing use rights require an assessment under s 79C of the Act of the likely impacts of the proposal. While the planning controls do not apply they can be used a guide to assess whether these likely impacts are acceptable. 12 Clause 2.4.2(3) of the DCP provides hours of operation for Type B premises in a Residential 2(a) zone. The general maximum hours are 7 am to 9 pm, 7 days per week. A one year trial period is required for extended hours outside this period. 13 The controls provide a guide to the appropriate level of amenity for commercial uses in a residential area. The proposed hours are within the general hours in the DCP. There is no evidence that the proposal is likely to generate unacceptable amenity impacts. It is of minimal size and does not provide outdoor seating or serve to the street. In this respect the design is different to the other cafes cited by Mr Basha. 14 I accept that there is a likely to be an increase in the number of people using the premises compared to existing use but I do not accept that this is likely to result in unacceptable amenity impacts, particularly noise, given that the use occurs during the hours of 7 am to 7 pm. 15 The change of use will require a significant outlay and a degree of certainty as to the conditions of operation, such as opening hours, is not an unreasonable expectation for the applicant. 16 A trial period is appropriate for uses where by their nature or through their hours of operation they are likely to have an adverse impact on amenity. While I accept that the proposed use is an intensification over the existing use I do not accept that there is evidence of likely impacts which would warrant a trial period. 17 Condition 4 is therefore amended to delete the trial period and to permit trading between 7 am and 7 pm daily. Orders 1. The appeal is upheld. 2. The application under s 96 of the Environmental Planning and Assessment Act 1975 to modify development consent (565/05) to change of use from a naturopathic clinic to a deli/café at 2 Brighton Boulevarde, Bondi Beach is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibit 2, may be returned.