Argos Investments Pty Ltd v Bayside Council

[2023] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:

Argos Investments Pty Ltd v Bayside Council [2023] NSWLEC 1582

Hearing dates:

Conciliation Conference on 25 September 2023

Date of orders:

6 October 2023

Decision date:

06 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Development Application No. DA 2021/522, for the consolidation of all active development consents into a single development consent to permit ongoing operation of The Lakes Hotel, including operational changes to the use of the Hotel and car park, and adopting an updated Plan of Management on land known as 305 and 307 Gardeners Road, Rosebery (Lot A in DP 1871541 and Lot 10 in DP 1142723), 1 and 3 Macquarie Street, Rosebery (Lots 6 and 5 in DP 18556), and 3 and 3A Maloney Street, Rosebery (Lot 11 in DP 1142723 and Lot 8 in DP 18556), is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – consolidation of existing consents for a hotel – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2013, cl 5.10, Sch 1, cl 27, Sch 5, Pt 1

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Argos Investments Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/331020

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. 2021/522 (DA), seeking consent for the consolidation of all active development consents applying to the Lakes Hotel into a single consolidated development consent (the Proposed Development) in relation to the land at:

1. 305 Gardeners Road, Rosebery / Lot A DP 187154;

2. 307 Gardeners Road, Rosebery / Lot 10 DP 1142723;

3. 1 Macquarie Street, Rosebery / Lot 6 DP 18556;

4. 3 Maloney Street, Rosebery / Lot 11 DP 1142723;

5. 3 Macquarie Street, Rosebery / Lot 5 DP 18556; and

6. 3A Maloney Street, Rosebery / Lot 8 DP 18556

(the Site).

2. Properly characterised, the DA seeks consent for a Hotel use and associated Hotel carpark across the Site.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 September 2023. I presided over the conciliation conference.

4. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions filed on 24 January 2023 (SOFAC) have been resolved by the preparation of the following documents:

1. amended plan of management prepared by Design Collaborative Pty Ltd dated October 2021, updated September 2023;

2. amended as built plans; and

3. agreed conditions of consent.

5. The parties agree that each of the amendments that have been made to the DA were made in response to the concerns of the Respondent and objectors, and resulted in a lesser environmental impact from the Proposed Development.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The DA was made by Chris Thomas, as agent for the applicant company. Owner’s consent has been provided by the Director, George Thomas, and secretary, Chris Thomas of Argos Investments Pty Limited as evidenced by the signed owners consent at Tab 2 of the Class 1 Application on 18 October 2021.

9. The DA was notified in accordance with the Botany Bay Development Control Plan 2013 from 24 November 2021 to 8 December 2021. Eight objections and one letter from the local Member of Parliament were received by the Respondent during the public notification and these were filed with the Respondent’s Bundle of Documents at Tabs 2 and 3.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional prerequisites.

12. The Bayside Local Environmental Plan 2013 (BLEP) is the relevant environmental planning instrument that applies to the Land.

13. The Land upon which the hotel is located (Lot A DP 187154 and Lot 10 DP1142723) is zoned E1 Local Centre under the BLEP. The hotel is a continuing use that is a nominated permissible use in the zone.

14. The car park is situated on Lot 6 DP18556, Lot 11 DP 1142723, Lot 5 DP 18556 and Lot 8 DP 18556 which is zoned R2 Low Density Residential under the BLEP. Hotels are prohibited in the R2 zone. Clause 27 of Sch 1 to the BLEP provides for the additional permitted use of: “Development for the purposes of a car park in association with the use of the hotel at 305 Gardeners Road, Rosebery, known as The Lakes Hotel” on the Land.

15. The Hotel is identified as an item of local heritage significance (I362) in Pt 1 of Sch 5 to the BLEP. Clause 5.10 of the BLEP requires the consent authority to consider the effect of the development on the heritage significance of the heritage item. The use of the item is for its intended purpose as a Hotel, consistent with the significance of the item. No physical works are proposed as part of the Development.

16. The proposal includes the previously approved signage on the Land (as identified in consent condition 2) and as such, no further assessment is required to be undertaken pursuant to s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021.

17. Before granting development consent, the consent authority must consider whether the Land is contaminated pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The Proposed Development does not involve a change of use. The Site has been used as a Hotel and as residential use (prior to the car park) and accordingly there has not been a use of Land that would likely contaminate the Land.

18. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as they are set out in this judgment.

19. 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.

Notations

20. The Court notes that:

1. that the Respondent, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA 2021/522 to rely upon the following plans and documents (Amended Development Application):

1. Drawings, prepared by Darren Mah Design:

1. DR-01, Basement plan, sheet 1 or 3 Revision A dated 7 March 2023;

2. DR-02, Ground floor plan sheet 2 of 3, revision B, dated 30 March 2023;

3. DR-03, First floor plan, sheet 3 of 3, revision B dated 30 March 2023;

4. DR-04, Elevations, sheet 3 of 3, revision B dated 30 March 2023.

2. Plan of Management prepared by Design Collaborative Pty Limited dated October 2021, updated September 2023.

2. The Amended Development Application was filed with the court on 25 September 2023.

Orders

21. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA 2021/522, for the consolidation of all active development consents into a single development consent to permit ongoing operation of The Lakes Hotel, including operational changes to the use of the Hotel and car park, and adopting an updated Plan of Management on land known as 305 and 307 Gardeners Road, Rosebery (Lot A in DP 1871541 and Lot 10 in DP 1142723), 1 and 3 Macquarie Street, Rosebery (Lots 6 and 5 in DP 18556), and 3 and 3A Maloney Street, Rosebery (Lot 11 in DP 1142723 and Lot 8 in DP 18556), is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 06 October 2023