Background
Steve and Rosa Konstanopoulos appealed Fairfield City Council’s refusal of a development application for land at 23–31 Fairfield Street, Old Guildford. The application sought to consolidate land and create a right of way, while authorising bottled-water production in one existing warehouse and a neighbourhood shop, industrial retail outlet, local distribution premises, office and storage uses in another.
The E4 General Industrial site already contained warehouses and informal vehicle parking. During the hearing, the applicants amended the proposal to remove soft-drink and juice operations, prohibit forklifts from operating in the external right of way, provide loading bays and pedestrian-safety measures, and restrict transfers between the warehouses to trucks. The Council’s remaining concerns concerned loading, truck manoeuvring, parking and pedestrian safety.
The Court’s Holding
Acting Commissioner Young upheld the appeal and granted consent subject to conditions. The amended proposal was permissible under the Fairfield Local Environmental Plan 2013, including because the land consolidation enabled the industrial retail outlet to meet the applicable floor-area control. Its operation was conditioned on registration of the approved subdivision.
The Court held that the amended traffic and operational arrangements achieved the objectives of the relevant development control plan provisions, despite departures from numerical loading and parking controls. The conditions required, among other things, internal-only forklift movements, truck-only transfers between warehouses, vehicle-length limits, forward entry and exit, designated parking and pedestrian-safety measures. The Court rejected a proposed 12-month trial period as neither reasonable nor necessary. The applicants were ordered to pay the Council’s costs thrown away by the amendments, as agreed or assessed.
Key Takeaways
- Development control plan standards are guidance, and reasonable alternatives may be accepted where their objectives are achieved.
- Conditions can address traffic, loading and pedestrian-safety issues in an industrial development approval.
- Past unlawful use is not itself a reason to refuse consent, though its operational impacts may inform the assessment.
Why It Matters
The decision illustrates the Land and Environment Court’s merits-based approach to development appeals. Numerical departures from a development control plan did not require refusal where expert evidence and enforceable conditions established that the site could operate safely and meet the controls’ underlying objectives.
It also confirms that a trial period should not be imposed merely because of concerns arising from past unauthorised operations where the proposed development, as conditioned, provides an acceptable and enforceable planning outcome.