Lacroix 2011 Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1005

Land and Environment Court New South Wales

Medium Neutral Citation: Lacroix 2011 Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1005 Hearing dates: 7, 9, 16 December 2011 Decision date: 18 January 2012 Jurisdiction: Class 1 Before: Fakes C Decision: The appeal is upheld in part subject to amended conditions Catchwords: DEVELOPMENT APPLICATION - Appeal against conditions of consent; signage; hours of operation; trial period; provision of food Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Liquor Act 2007 Environmental Planning and Assessment Regulation 2000 Standard Instrument (Local Environmental Plans) Order 2006 Cases Cited: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Lacroix 2011 Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Mr F Kalyk, Barrister/Agent (Applicant) Mr A Hawkes, Solicitor (Respondent) Solicitors City of Sydney (Respondent) File Number(s): 10908 of 2011; 11154 of 2011

Judgment 1COMMISSIONER: These are appeals against certain conditions of consent imposed by the Council of the City of Sydney when it granted consent to Development Application D/2011/840 on 2 August 2011 and Development Application D/2011/958 on 5 August 2011. Both consents relate to retail/commercial premises on the ground floor of the Rex Apartments near Fitzroy Gardens Potts Point/ Elizabeth Bay. 2The applicant is seeking the deletion of a number of conditions and the rewording of others in both consents on the basis that they are unnecessary, do not apply to the development and/or are not for a planning purpose. The council consents to the deletion of one condition, the rewording of others but presses the imposition of the majority of the conditions because of concerns about impacts on amenity, compliance with council's controls, and the public interest. 3Appeal 10908 of 2011 is the primary case and the one to which the majority of this judgment applies. Leave was granted to file appeal 11154 of 2011 on the first day of the hearing. This appeal deals with DA 840 and seeks to normalise the amended conditions sought in the original Class 1 application in matter 11/10908 files on 6 October but left out of the amended Class 1 application filed on 7 December 2011regarding DA 958. As leave was not granted to rely on the amended application, the conditions sought by the applicant in 11/11154 are covered in this judgment on the original application and separate findings are unnecessary.