Tanwar v Marrickville Council [2009] NSWLEC 1018

Land and Environment Court of New South Wales

CITATION : Tanwar v Marrickville Council [2009] NSWLEC 1018

APPLICANT Ramesh Tanwar PARTIES : RESPONDENT Marrickville Council

FILE NUMBER(S) : 10512 of 2008

CORAM: Brown C

KEY ISSUES: APPEAL :- modification of conditions of consent for service station - hours of operation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 23/01/09

EX TEMPORE JUDGMENT DATE : 23 January 2009

APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister SOLICITORS Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

23 January 2009

10512 of 2008 Ramesh Tanwar v Marrickville Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of an application to modify Determination No 9898 granted by the council on 8 May 1985. Determination No 9898 provided for the use of the property at 281 New Canterbury Road, Marrickville for the; "installation of an underground fuel storage tank and the extension of the existing canopy over the driveway area and to continue with the existing use of the premises as a service station". 2 Condition 3 states: 3. The hours of operation being restricted to 7.00 a.m. to 7.00 p.m. Mondays to Saturdays and 9.00 a.m. to 6.00 p.m. Sundays and Public Holidays. Council reserving the right to reduce these hours if it is considered that trading at such hours is causing and inconvenience or loss of amenity to the surrounding residential locality. Reason: To confirm the applicant submissions and to protect the amenity of the residential locality. 3 Condition 5 states: 5. All lighting of buildings and signs on the premises to be carried out so as not to cause inconvenience or nuisance to the occupants of nearby residences particularly between the hours of 9.00 p.m. to 7.00 a.m. the following morning of each day. Reason: To protect the amenity of the residential locality 4 The site is zoned Residential 2(A) under Marrickville Local Environmental Plan 2001 (LEP 2001). A "service station" and "car repair station" are both prohibited within this zone, however the site benefits from existing use rights. This has the effect that the provisions of the planning controls of the council that relate to the site apply only insofar as they do not derogate from existing use right provisions of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000.