Jones Lang Lasalle v Leichhardt Council [2011] NSWLEC 1013

Land and Environment Court New South Wales

Medium Neutral Citation: Jones Lang Lasalle v Leichhardt Council [2011] NSWLEC 1013 Hearing dates: 9 & 10 August and 9 September 2010 Decision date: 05 January 2011 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is upheld. 2. Development consent is granted to development application DA-102/2009 for a trial period of 12 months and subject to conditions including a plan of management consistent with the findings in this judgment. 3. The council is to forward to the court the draft conditions of consent and plan of management within 14 days of the date of this judgment. Catchwords: Extended hours of trading on public holidays; amenity impact for local residents; plan of management. Legislation Cited: Environmental Planning and Assessment Act 1979 Shop Trading Act 2008 Leichhardt Local Environmental Plan 2000 Cases Cited: LGSS Pty Ltd V Leichhardt Municipal Council [1999] NSWLEC 72 Category: Principal judgment Parties: Jones Lang Lasalle (Applicant) Leichhardt Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant) Solicitors: Sattler & Associates Pty Ltd (Applicant) Ms R McCulloch, solicitor (Respondent) Pikes Lawyers (Respondent) File Number(s): 10335 of 2010

Judgment

Summary 1This is an appeal, pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against Leichhardt Council's refusal of a development application (D/2009/102) for consent to trade from 10am to 4pm on Australia Day, Easter Saturday, Easter Monday, the Queen's Birthday and Labour Day at a shopping centre known as Leichhardt Marketplace, situated at 122-138 Flood Street, Leichhardt, 2According to the evidence, the development application was refused because the council assessed that the proposed trading would cause unreasonable impacts on the amenity of nearby residential properties. In particular, council's contends that such trading will: a. Significantly increase traffic flows and on street parking and associated noise on surrounding residential streets on public holidays. b. Increase the likelihood that problems caused by the existing development would be experienced on public holidays namely: ·delivery and garbage vehicles parking in Lords Road and the site outside approved hours. ·noise from tractor collection of trolleys, alarms, staff opening gates and talking loudly, vehicle reversing alarms. ·trolleys being abandoned in surrounding streets. c. Approval of the proposal would set an undesirable precedent for future applications to extend trading at the site. d. The proposal is not in the public interest in the circumstances of the case. 3To better understand the impact of the extended trading on the existing amenity of the local residents, the Court commenced this hearing with a view of the site and locality before it heard evidence from the objectors from Lords Road, George Street, Flood Street and Marion Street. The Court also received expert evidence from Mr Mc Laren and Mr Coady in respect of traffic, Mr Boston and Mr Coady in respect of town planning and Mr Cooper in respect of acoustic matters. 4Following a consideration of the evidence, including the oral and written objections lodged to the applicant and the relevant matters under s 79C of the Act, I have decided to grant a conditional approval to the development application for a 12 month trail period. Based on the evidence, I am satisfied that the concerns raised by the objectors and the council are adequately addressed by the conditions of consent, which incorporate a comprehensive plan of management. Importantly, the 12-month trial period will allow the objectors to this application the opportunity to review the applicant's operation of the Centre and the impact of the extended trading on the existing amenity of the residents. The reasons for my decision are detailed below.