Anabia Pty Ltd v Inner West Council

[2023] NSWLEC 1739

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anabia Pty Ltd v Inner West Council [2023] NSWLEC 1739

Hearing dates:

Conciliation conference held on 1 December 2023

Date of orders:

07 December 2023

Decision date:

07 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA/2023/0587, which seeks to change operating hours to 24 hours, 7 days a week for an existing gym with associated signage on Lots 2 and 3 Deposited Plan 1261043, also known as 32-72 Alice Street, Newtown, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – change in operating hours for gym – signage - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Inner West Local Environment Plan 2022, cl 2.3

Land and Environment Court Act 1979, s 34

Texts Cited:

Inner West Community Participation Strategy 2022

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Anabia Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/309751

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against conditions in the approval of Development Application DA/2023/0587 (the DA) by the Inner West Council (the Council), which relates to the (trial) operating hours of an existing gym, with associated signage, on Lots 2 and 3 Deposited Plan 1261043, also known as 32-72 Alice Street, Newtown (the site).

Background

2. The DA was lodged with Council on 20 July 2023. The DA seeks to change (increase) the operating hours to 24 hours, 7 days per week for a trial period to an existing approved development, a gym, under DA/2021/1315 (original DA). The original DA relates to an indoor recreational facility (a gym), located in the basement of an existing building on the site.

3. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). Subsequent to the filing of the appeal, the Council approved the DA on 24 October 2023, subject to conditions. The appeal remains relevant for conditions 9 and 18, as approved by Council.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held before me as Duty Commissioner.

5. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA/2023/0587, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA/2023/0587, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Inner West Local Environment Plan 2022 (IWLEP):

1. Pursuant to cl 2.3 of the IWLEP, the proposed residential development is situated over land zoned MU1 Mixed use. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the IWLEP.

9. The relevant requirements of the Marrickville Development Control Plan 2011 have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

10. The original DA was publicly notified in accordance with the Council’s Community Participation Strategy 2022, with seven submissions received.

11. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent

12. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/2023/0587 can be granted consent.

15. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

16. The Court notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/2023/0587.

2. The Applicant has filed the amendments to the Development Application DA/2023/0587 with the Court on 27 November 2023.

17. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2023/0587, which seeks to change operating hours to 24 hours, 7 days a week for an existing gym with associated signage on Lots 2 and 3 Deposited Plan 1261043, also known as 32-72 Alice Street, Newtown, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 07 December 2023