Brindley v Parramatta City Council

Judgment 1SENIOR COMMISSIONER: Substance abuse and addiction are significant problems in a modern industrialised society. It is necessary, in the context of the social and criminal impacts of such addiction, to provide socially beneficial rehabilitation and counselling services. Wayback operates such a facility at Harris Park in Sydney's western suburbs. It does so from a single level, heritage listed cottage that has been adapted for this purpose. The service has operated out of their premises for some 22 years - the majority of which was without a formal development consent for the use. 2In 2009, Wayback sought and was granted development consent for the use of the premises, on a retrospective basis, and for additions and alterations to the building including a rear extension. That development approval, in DA/591/2009, was given by Parramatta City Council (the Council) on 24 December 2009. The approval was subject to a number of operating conditions, two of which are relevant for the purposes of these proceedings. The first, condition 26, restricted the operation of the facility from 8.00am to 5.00pm Monday to Fridays, and, second, condition 29 provided that a maximum of 30 clients could attend the centre on any day. 3The Local Environmental Plan under which the 2009 consent was given was replaced in October 2011 by Parramatta Local Environmental Plan 2011, a Local Environment Plan based on the standard instrument template. 4Under the 2011 Local Environmental Plan, the site is now zoned B1 Neighbourhood Centre. The agreed characterisation of the activities undertaken by Wayback at the premises is as a health service facility and this is now a use that is prohibited by the land use table in the Local Environmental Plan for the B1 zone. As a consequence, Wayback's activities for the future rely on existing use rights. 5The aims of the 2011 Local Environment Plan are set out in cl 1.2. Mr Gough, solicitor for the Council, says that two of those aims are not satisfied by the application to modify the consent that is currently before the Court. That application seeks a number of changes that I will outline shortly. 6However, the two aspects of the aims of the Local Environment Plan that Mr Gough says are transgressed are those contained in cl(2)(b), to foster environmental, economic, social and physical wellbeing so that Parramatta develops as an integrated balanced and sustainable city, and (h) to enhance the amenity and characteristics of established residential areas. 7In this context, I note that the property occupied by Wayback is on a zone interface between the B1 zone and a higher density residential zone, and that immediately to the rear of premises and across a laneway is located a residential flat building, a location that is of relevance later in the proceedings. 8Contrary to Mr Gough's submissions concerning transgression of those two aspects of the aim of the local environment plan, I am satisfied that this application contributes positively to the satisfaction of both of those elements of the aims, a matter to which I will return. 9The application seeks approval for five elements: