Baronja Investments Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1133

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Baronja Investments Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1133
Hearing dates:	20 February 2020
Date of orders:	27 March 2020
Decision date:	18 March 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The orders of the Court are: (1)   The appeal is upheld. (2)   The Applicant’s application to modify its development consent in relation to land known as 805-807 New South Head Road, Rose Bay is approved, and the consent for DA 514/2017 should now be subject to the modified conditions of consent at “Annexure B”. (3)   The exhibits are returned, with the exception of Exhibits A, B and 4.
Catchwords:	MODIFICATION APPLICATION – proposal to extend trading hours – potential noise impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environment Plan 2014
Cases Cited:	Brown v Waverley Council [2018] NSWLEC 1660 Jam Ventures Australia Pty Ltd v Inner West Council [2019] NSWLEC 1456 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited:	Woollahra Development Control Plan 2015 (v.7)
Category:	Principal judgment
Parties:	Baronja Investments Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) M Harker (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/350135
Publication restriction:	Nil

Judgment

1. COMMISSIONER: Baronja Investments Pty Ltd (the Applicant) has appealed the refusal by Woollahra Municipal Council (the Respondent) of its modification application seeking to extend the approved hours of operation and to modify conditions of consent under development consent DA 514/2017, concerning time restrictions imposed on the opening of certain windows at the Rose Bay Hotel (the Proposed Development), at 805-807 New South Head Road, Rose Bay (the Subject Site).

2. The Applicant’s modification application, made under s 4.55 of the Environmental Planning and Assessment Act 1979 (EP&A Act), seeks the modification of the following conditions of consent issued in respect of the Respondent’s approval of DA 514/2017:

1. modification of condition 1.2, to permit the hours of operation of the Rose Bay Hotel to be extended by two hours between Monday and Saturday, and so modify the closing time of the hotel on those days from 1am to 3am;

2. modification of condition 1.4, to permit windows of the Rose Bay Hotel to remain open in the evening in certain circumstances, and until various time that would reflect patronage numbers in the hotel.

3. The appeal comes to the Court pursuant to the provisions of s 8.9 of the EP&A Act, and the appeal is heard under the provisions of s 34C of the Land and Environment Court Act 1979.

4. The appeal commenced on-site with an inspection of the Subject Site, and no objectors sought to make representations in relation to the Applicant’s Proposed Development during the on-site view.

Statutory context

Environmental Planning and Assessment Act 1979

5. The following provisions of the EP&A Act are of relevance in this appeal:

1. Section 4.55(2) the EP&A Act provides as follows

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

2. Sections 4.55 (3) and 4.55(4),which provide that:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

3. Section 4.15(1) of requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph).

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

4. Section 4.17(10B), concerning the imposition of conditions, and in particular in relation to the review of extended hours of operation and number of persons permitted, and which provides:

(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.

Woollahra Local Environmental Plan 2014

6. Development on the Subject Site is subject to the provisions of Woollahra Local Environmental Plan 2014 (WLEP), and the following provisions of WLEP are of relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of WLEP. The Subject Site is zoned B3 Local Centre, and under the provisions of cl 2.3 of SLEP, the objectives of this zone are to:

• provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• encourage employment opportunities in accessible locations.

• maximise public transport patronage and encourage walking and cycling.

• attract new business and commercial opportunities.

• provide active ground floor uses to create vibrant centres.

• provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.

• ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

2. Clause 5.5 concerns heritage conservation, and subcl 5.10(4) requires that:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under

1. The Rose Bay Hotel and its interiors are a listed heritage item under Part 1 of Schedule 5 of WLEP (Item no. 326).

Woollahra Development Control Plan 2015

7. Development on the Subject Site is subject to the provisions of Woollahra Development Control Plan 2015 (WDCP). The Parties advised, and I agree, that, as a consequence of savings provisions within the current version of WDCP, the version of WDCP that is applicable in respect of the Applicant’s modification application is version 7). The following provisions of that version of WDCP are of particular relevance in this appeal:

1. Chapter D6, which concerns development in the Rose Bay Centre, within which the Subject Site is located, and in particular section D6.6.4 in relation to visual and acoustic privacy, which contains the following objectives and control of relevance in this appeal:

“Objectives

O1 Ensure adequate visual and acoustic privacy to residential apartments in the centre and private open spaces.

O2 Protect the privacy of adjacent residential neighbours.

Control

C6 Restaurants and cafes should be designed to minimise the impact of noise associated with late night operation, on nearby residents.”

2. Chapter F3, concerning licensed premises, which applies to all development proposals involving licensed premises in the Woollahra Municipality, and identifies a hotel, such as is the subject of this appeal, to be a high risk licensed premises, and which includes the following relevant objectives and controls:

1. Objective O1, which seeks to minimise the impact of licensed premises on the amenity of residential or other sensitive land uses, and which, inter alia, provides the following relevant controls:

“C1 Before deciding on an application involving licensed premises, the following matters are considered:

f) existing and proposed management practices relating to the operation of the premises and of the areas in the vicinity of the premises;

g) the density of licensed premises in the vicinity of the proposed development; h) availability of car parking and proximity and access to public transport.”

2. Objective O2, which seeks to identify appropriate trading hours for licensed premises, and which, inter alia, provides the following relevant controls:

“C2 The trading hours for licensed premises are as set out in the following table:

Risk Rating	Internal (fully enclosed)		External (not fully enclosed)
	Base	Extended	Base	Extended
High	8am – 10pm	8am - midnight	8am – 8pm	8am – 10pm
Low	8am - midnight	8am – 2am	8am -10pm	8am – midnight

Note: The base and extended trading hours referred to in the above table are not an ‘as of right’. Where licensed premises are located in close proximity to low density residential zones, Council may impose more restrictive trading hours than those shown in the table.

C4 Extended trading hours may be permitted. The matters set out in C1 will be considered in the assessment of an application to extend trading hours. If approved, extending trading hours:

a) will not exceed the extended trading hours in the Trading Hours Table under C2 (an approval may be subject to a condition which requires extended trading hours to be less than the hours shown in the table); and

b) will be approved as a reviewable condition under s.80A (10b) of the EP&A Act.

Reviews of extended trading hours will only be undertaken if:

a) Council has satisfactory evidence to suggest the extended trading hours are unduly impacting on the amenity of the neighbourhood; or

b) NSW Police has requested a review.

In these cases, reviews will be undertaken at the following intervals:

• one year after the extended trading hours commence; or

• two years after the first review, if that review does not result in a change to the extended trading hours; or

• five years after the second or any subsequent review, if that second or subsequent review does not result in a change to the extended trading hours.”

3. Objective O3, which seeks to identify the maximum number of persons permitted on the licensed premises (including outdoor areas) so as to minimise the impact on the amenity of surrounding residential and sensitive land uses, and to provide a safe environment for occupants, and which, inter alia, provides the following relevant controls:

“C5 Consents for licensed premises will, by condition, limit the maximum number of persons permitted on licensed premises based on:

a) an assessment of likely amenity impacts; and

b) fire safety and other emergency situation considerations.

C6 An increase in the maximum number of persons permitted on licensed premises may be permitted. Under no circumstances will an increase be permitted if the number of persons would exceed fire safety/emergency criteria.

An increase in the maximum number of persons permitted on licensed premises will be approved as a reviewable condition under s.80A (10b) of the EP&A Act.

Reviews of an increase in the maximum number of persons on licensed premises will only be undertaken if:

a) Council has satisfactory evidence to suggest the increased number of persons are unduly impacting on the amenity of the neighbourhood; or

b) NSW Police has requested a review.

In these cases, reviews will be only undertaken at the following intervals:

• one year after the increased number of persons permitted on the licensed premises commence; or

• two years after the first review, if that review does not result in a change to the increased number of persons permitted on the licensed premises; or

• five years after the second or any subsequent review, if that second or subsequent review does not result in a change to the increased number of persons permitted on the licensed premises.”

Contentions

8. In its statement of facts and contentions, the Respondent had noted that the Rose Bay Hotel already operated between Monday and Saturday each week until 1am, which fell outside of the trading hours for licensed premises in the Woollahra Municipality, as set out in control C2 of section F3.3 within Chapter F3 of WDCP.

9. At the commencement of the appeal, the Respondent had pressed that the Applicant’s modification application should be refused for reasons of potential noise, amenity and character impacts associated with the Applicant’s proposed extended trading hours.

10. The Respondent also said that the Applicant’s plan of management for the hotel was not adequate to address the potential impacts of its proposed extended trading hours.

11. During the hearing, the Court was assisted by joint expert reports and oral testimony of the following experts:

1. the expert planners:

1. Mr Robert Chambers, for the Applicant; and

2. Mr Anthony Rowan, for the Respondent.

2. the expert acousticians:

1. Mr Steven Cooper, for the Applicant; and

2. Dr Renzo Tonin, for the Respondent.

Should the Applicant’s modification application be approved?

12. I have considered the jurisdictional matters in s 4.55 of the EP&A Act, and I am satisfied that:

1. the development to which the consent as modified relates, is substantially the same development as the development for which consent was originally granted in relation to the Applicant’s DA 514/2017;

2. that consent as originally granted in relation to DA 514/2017 has not been modified prior to the considerations in this appeal;

3. there are no matters that arise from the provisions of s 4.55(2)(b) that require further consideration by me in this appeal;

4. the Applicant’s modification application has been notified in accordance with the provisions of WDCP, and the submissions of the three objectors, received in response to that notification, have been considered in this appeal.

13. During the hearing, and as a consequence of the testimony of the experts, the Respondent said that it no longer pressed that the Applicant’s modification application should be refused, and that it did not oppose the Court granting approval to the modification to the trading hours of the Rose Bay Hotel sought be the Applicant, subject to appropriate conditions.

14. Further, the Parties advised that:

1. they had reached agreement in relation to form of modified conditions that should be imposed in respect of a modified consent for DA 514/2017 in relation to the opening of windows fronting Dover Street, and in relation to the hotel’s plan of management.

2. the only decision remaining before the Court was the form of condition to be imposed in relation to the extended trading hours, and in particular:

1. whether, as proposed by the Respondent, the condition should be for a twelve month trial period, subject to review at any point in time during that twelve month trial period; or

2. whether, as proposed by the Applicant, the condition should be a reviewable condition, imposed pursuant to s 4.17(10B) of the EP&A Act (see above at [5(4)]), and which would be reviewable in terms consistent with the provisions of controls C2 and C3 of section F3.3 of SDCP (see above at [7(2)(b)] and [7(2)(c)] respectively).

15. In relation to the Respondent’s submission that its proposed condition should be for a twelve month trial period, subject to review at any point in time during that twelve month trial period:

1. the Respondent further submitted that the Court had broad powers under the provisions of s 4.17 of the EP& A Act to impose a condition of the sort it had proposed;

2. the Applicant said that the Court’s powers were less broad than proposed by the Respondent as a consequence of s 4.15(3A)(a) of the EP&A Act, that, inter alia, provides as follows:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority –

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development.

16. The Parties provided their respective draft modified conditions of consent for consideration by the Court in finalising judgment in this matter.

17. I have considered the submissions of the Parties in this matter, and find as follows:

1. I accept the submission of Mr Harker, for the Respondent, that, consistent with the provisions of s 4.17 of the EP&A Act, the Court’s powers with respect to the imposition of conditions of consent are broad, and that the Court has the power to impose a condition to approve the extended operating hours sought by the Applicant on a trial basis and the possibility of review at any point in that trial period;

2. I do not agree with the submissions of Mr Pickles SC, for the Applicant, that:

1. the Court’s powers to impose modified conditions of consent in this matter are constrained as a consequence of s 4.15(3A)(a) of the EP&A Act. As previously observed by my colleague Commissioner Gray in the matters of Brown v Waverley Council [2018] NSWLEC 1660 (at [49]-[52]) and Jam Ventures Australia Pty Ltd v Inner West Council [2019] NSWLEC 1456 (at [54]), s 4.15(3A) does not strictly apply to a modification application, as the provisions of s 4.15(3A) state that it is concerned with circumstances that relate to a development that is the subject of a development application. The EP&A Act defines a “development application” as “an application for consent under Part 4 to carry out development”, and a modification application does not seek consent, but seeks to modify a consent already granted;

1. I am obliged to impose a reviewable condition consistent with the provisions of Chapter F3.3 of WDCP, and in particular in a manner consistent with the timetables for review as specified within controls C4 and C6 of that Chapter;

3. notwithstanding my findings above (at [1] and [2]), but consistent with the principles of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (Zhang), the relevant provisions in a development control plan are entitled to significant, but not determinative, weight in my consideration;

4. I agree with the submission of Mr Pickles, for the Applicant, that its proposal for imposition of a reviewable condition, in the form that it proposes, and which is consistent with the controls of Chapter F3 of WDCP, is preferred to the condition proposed by the Respondent, because:

1. the Applicant’s proposed condition is consistent with the principles in Zhang,

2. the Applicant’s proposed condition is consistent with the provisions of s 4.17(10B) of the EP&A Act concerning reviewable conditions;

3. it would be unreasonable, in my assessment, to impose a condition that left open the possibility of the condition being reviewed at any point, and the extended trading hours being halted at short notice. This is particularly so in circumstances where, following a grant of consent in 2002, the hotel had operated until 3am between Monday and Saturday each week for a one year trial period, and then continued to operate until 3am, albeit without consent, until the grant of consent for the most recent renovation works in 2017, and did so without any recorded complaint across that fifteen year period;

4. the imposition of a condition for a trial period would require that the Applicant should once again seek approval at the end of the trial period for its extended trading hours to continue, even if that trial had been completed successfully. I am of the view that this is also unreasonable;

5. the Applicant’s application for modification of conditions 1.2 and 1.4 of the consent granted for development application DA 514/2017, should be approved.

5. consistent with my findings above at (4), I embrace the Applicant’s proposed amendments to the originally imposed conditions of consent for development consent DA 514/2017. The Applicant’s proposed amended conditions are provided at Annexure ‘A’ to the judgment.

18. As a consequence of my findings above at [17], the conditions of consent imposed on development consent DA 514/2017 should be modified to reflect the Applicant’s amended conditions at Annexure ‘A’, and the Parties should agree a full set of modified conditions of consent to reflect the findings in this appeal.

Directions

19. The Court directs that:

1. The Respondent is to prepare and file with the Court, as a Word document, by no later than close of business on Wednesday 25 March 2020, modified conditions of consent for development consent DA 514/2017 to reflect the findings in this appeal;

2. This matter is listed for mention on Thursday 26 March 2020 at 4pm;

3. If direction (1) is complied with, orders in this matter will finalised, and the mention on 26 March 2020 will be vacated.

Addendum made on 27 March 2020

20. On 19 March 2020, the Parties were directed to agree, and the Respondent was directed to file with the Court, by no later than Wednesday 25 May 2020, complete set of amended and settled conditions of consent, reflecting the conclusions in the Court’s judgment in this matter.

21. The Parties have now agreed amended conditions of consent reflecting the conclusions in the Court’s judgment, and these have been filed, as directed, and the Court is able to make final orders.

Orders

22. The orders of the Court are:

1. The appeal is upheld.

2. The Applicant’s application to modify its development consent in relation to land known as 805-807 New South Head Road, Rose Bay is approved, and the consent for DA 514/2017 should now be subject to the modified conditions of consent at “Annexure B”.

3. The exhibits are returned, with the exception of Exhibits A, B and 4.

………………………

Michael Chilcott

Commissioner of the Court

Annexure B (363 KB, pdf)

Amendments

27 March 2020 - See Addendum at [20]-[22] for final orders.

Decision last updated: 27 March 2020