The illegal development that took place at the Fingal Store site led to the closure of the store as Tweed Council and the owners Cubbies bakery negotiated what was appropriate development for the controversial site.
After three years of negotiation in May 2024 the Tweed Shire Council (TSC) staff had recommended refusal of the development application (DA) ‘as the owner had failed to present a DA that would be permissible at the site and in the residential area of Fingal Head’.
However, led by Liberal councillors James Owen and Rhiannon Brinsmead, the decision was deferred to ‘give them another chance to see if we can find a workable solution here,’ said Cr Owen.
The DA is back in front of councillors at tomorrow’s TSC meeting (July 9) and staff have now recommended the DA for approval – but residents say the DA should not be approved and due to the significant changes made by the developers that require anew DA to be to submitted.
In particular is the extension of trading hours to 10pm seven days a week.
‘It was deemed by council staff and councillors that a 4.30am start of operations in a residential zone was not acceptable in the amended DA presented to council at the meeting on May 2. However, this new DA before you now has trading hours into the late night, every night of the week,’ local resident John Hendry told The Echo.
The extension of hours to 10pm are a result of the inclusion of a 33sqm restaurant inside the building as approved in a previous DA’ 24 years ago in 2000. The DA includes a general store and takeaway shop and does not include ‘offsite distribution of any goods prepared at the premises’.
The extended opening hours was ‘something that the proponent did NOT seek in the previous DA,’ explained Mr Hendry.
‘A 10pm close of business seven days a week is unacceptable in a designated residential zone. There is no difference whether the amenity of the area is affected by noise in the morning or at night especially for those living in the very near vicinity of the site. Sleep disturbance occurs at both ends of the day. Late night closing hours continue to make this development not fit for purpose for this R2 zoned area.’
Mr Hendry has pointed out that the application for a 10pm closing time is based on a previous ‘zombie’ DA for a restaurant approved in 2000 and that under current 2014 regulations would not be allowed.
‘If this DA was submitted under TLEP2014 today, it would have the effect of prohibiting those uses that have been historically granted,’ he explained.
New DA required
Mr Hendry has argued that in fact the significant changes to the DA require a new DA to be submitted as it is not substantially the same DA.
‘As per page 22 of the council report the proponents have in effect created a NEW development application and have modified the trading hours as part of this new application,’ he said.
‘This is further reinforced on page 23 where the report states “the recommended conditions of consents include a request that the existing D93/0499 and 0858/2000DA be surrendered to provide a contemporary all encompassing consent of the premises and reduce any potential for conflict between the various consents that exist on the land”.’
7am to 7pm
Mr Hendry told The Echo that residents support 7am to 7pm trading hours at the Fingal Store site.
‘The request for new trading hours on the restaurant component of this DA22/0797 is a new request of operating hours and opens the door for a full and frank assessment of the trading hours as part of the overall affect of the amenity on its neighbours in current times,’ he said.
‘While there has been angst as suggested by Councillor Owen and Councillor Brinsmead to council’s legal costs in relation to rejected development applications, we would remind Councillor Owen and Brinsmead, that council should fight developers in the courts to protect community and environment. You represent the constituents, as well as developers and in this instance your decision should and needs to favour your constituents and not the developer.’
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