Ghosn v Council of the City of Sydney [2020] NSWLEC 1174

Land and Environment Court New South Wales

Medium Neutral Citation: Ghosn v Council of the City of Sydney [2020] NSWLEC 1174 Hearing dates: 18 March 2020 Date of orders: 14 April 2020 Decision date: 14 April 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application D/2018/410 is refused. (3) The exhibits are returned with the exception of Exhibits A and C. Catchwords: DEVELOPMENT APPLICATION – restaurant – alterations – heritage conservation – local amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Sydney Local Environmental Plan 2012 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Habib Ghosn (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Reid (Respondent)

Solicitors: Conomos Legal (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2019/214163 Publication restriction: No

Judgment 1. COMMISSIONER: On 5 March 2019, the Council of the City of Sydney ('Council') granted consent to a development application ('DA') referenced as D/2018/1410, subject to conditions. The DA sought approval for fit-out and use of a restaurant, certain nominated trading hours, and a maximum patron capacity of 136 persons. At the centre of the applicant's dispute with Council are certain conditions imposed by Council in this consent. 2. The Class 1 application to the Court listed the type of claim as an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). Appeals under s 8.9 are concerned with applications for the modification of a development consent (under s 4.55 of the EPA Act). The matter at hand does not involve a modification application. During the hearing, and with the consent of the Council, leave was granted to amend the application to an appeal under s 8.7 of the EPA Act, an appeal against Council's determination of the DA. 3. The matters in dispute related to particular conditions in the Council's consent to D/2018/1410, and the contentions raised in the proceedings centre on this dispute. Nonetheless, the matter comes before the Court "de novo" (s 39(3) of the Land and Environment Court Act 1979 (LEC Act)).