Background
Anandsinh Jhala, trading as 9 Flavours, appealed the City of Parramatta Council’s refusal of DA/742/2023 for a food and drink premises at 63 Wigram Street, Harris Park. The proposal involved using portable shipping containers to prepare and sell food and drink, including for outdoor dining and takeaway.
The land is in the R2 Low Density Residential zone, where a food and drink premises is prohibited. The amended application relied on existing use rights arising from a 1985 consent for an accountancy office. After a conciliation conference was terminated, the parties reached agreement during the hearing on an amended proposal.
The Court’s Holding
Commissioner Targett upheld the appeal and granted consent to the amended development application, subject to conditions in Annexure A. The Court was satisfied that the parties’ agreed outcome was one it could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The amendments removed the second shipping container, increased parking from four to six spaces, reduced patron capacity, revised trading hours, removed artificial turf, added landscaping, and addressed storage, bins and frontage arrangements. The Court accepted that the existing-use-rights requirements for a change in commercial use were met, including because the works were minor and did not significantly intensify the existing use.
The applicant was also ordered to pay the Council $13,000 in agreed costs thrown away by the amendments, within 28 days. The Commissioner stressed that, in giving effect to the agreement, the Court did not undertake a merit assessment of the issues originally disputed between the parties.
Key Takeaways
- A prohibited use may nevertheless be approved where valid existing use rights apply.
- The Court may give effect to a negotiated Class 1 outcome if it is a decision the Court could properly make.
- Material amendments to a development application can result in costs thrown away being payable.
Why It Matters
The decision illustrates how existing use rights can permit a change from one commercial use to another despite current zoning controls, provided the statutory limits on alteration, rebuilding, floor area and intensification are met.
It also shows the practical importance of negotiated amendments in planning appeals: changes addressing parking, patron numbers, hours, landscaping and amenity concerns enabled an agreed approval, while leaving the applicant liable for the Council’s amendment-related costs.