Chapman Planning Pty Limited v The Council of the City of Sydney

[2022] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chapman Planning Pty Limited v The Council of the City of Sydney [2022] NSWLEC 1481

Hearing dates:

Conciliation conference on 25 August 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 1

Before:

McEwen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent no. D/2016/917 for the continued extension of trading hours at 16 O’Connell Street, Sydney, legally described as Lot 1 in SP55932 is modified in the terms set out at Annexure ‘A’.

(3) Development consent D/2016/917 for the continued extension of trading hours at 16 O’Connell Street, Sydney, legally described as Lot 1 in SP55932 as modified by the Court is set out at Annexure ‘B’.

Catchwords:

MODIFICATION APPLICATION – continued extension of trading hours - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9, 8.10

Environmental Planning & Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979 s 34

Sydney Local Environmental Plan 2012

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468

Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414

Vacik Pty Limited v Penrith City Council 24 February 1992, unreported

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Chapman Planning Pty Limited (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A. Adams (Solicitor) (Applicant)
A. Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2022/131156

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of the proceedings: These proceedings are an appeal by the applicant pursuant to s 8.9 of the Environmental Planning & Assessment Act 1979 (EPA Act) against the determination of the Council of the City of Sydney (respondent) dated 3 May 2022 to modify development consent no. D/2016/917 (DC) relating to the use of premises known as ‘The Carter’ as a licensed bar, restaurant and café located at 16 O’Connell Street, Sydney and legally described as Lot 1 in SP55932 (site).

2. The modification application no. D/2016/917C (MA) was lodged with the respondent on 3 December 2021 and determined by the grant of consent on 3 May 2022. The applicant was dissatisfied with the determination. This appeal was filed on 6 May 2022 within the time limit prescribed by s 8.10 of the EPA Act.

3. The appeal falls within Class 1 of the Court’s jurisdiction. The statutory power to be exercised in determining the proceedings is contained in s 4.55(2) of the EPA Act.

4. The MA, as amended, seeks consent for modifications of the DC so as to permit the continued extension of indoor trading hours between 12.00 midnight and 2.00 am the following day, Monday to Saturday for a further trial period of one year subject to a reviewable condition. In addition, the MA seeks to amend the plan of management, introduce a regime for the use of RSA marshals and to delete a condition restricting queuing outside the site.

5. The conciliation conference: The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act (LEC Act) between the parties, which was held on 25 August 2022. I presided over the conciliation conference.

6. The parties’ agreement: At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court upholding the appeal and modifying the DC.

7. Satisfaction of jurisdiction: 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. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the DC.

8. There are jurisdictional pre-requisites that must be satisfied before the power and functions under s 4.55(2) can be exercised. The parties identified the jurisdictional pre-requisites of relevance in a joint jurisdictional statement. The parties further explained how those pre-requisites have been satisfied.

9. Based on the evidence before me, I accept the parties’ joint submission as to my jurisdiction in this case. In particular, I am satisfied in respect of the following matters:

10. Owners’ consent to the lodgement of the MA has been provided as part of the documentation which accompanied the MA.

11. The site is zoned B8 – Metropolitan Centre pursuant to Sydney Local Environmental Plan 2012 (SLEP) and development for the purpose of a ‘food and drink premises’, of which this development is one form, is permitted with consent in that zone.

12. As required by s 4.55(2)(a) of the EPA Act, I am satisfied, on the facts, that the development as modified is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. My reasons for holding this opinion are as follows;

1. The proposed modifications outlined in par 4 above, when considered from both a quantitative and qualitative point of view, will result in the development remaining essentially or materially the same or having the same essence as the development the subject of the consent as originally granted: Vacik Pty Limited v Penrith City Council 24 February 1992, unreported.

2. Change is clearly contemplated by s 4.55(2) of the EPA Act and the required comparative exercise is to be undertaken with respect to the development as a whole rather than its individual elements. The MA before the Court, is, in my opinion, well within the concept of modification of the development under s 4.55(2) of the EPA Act. No physical works are proposed and the proposed modifications to the operation of the site, including the trading hours, do not amount to any ‘radical transformation’ of the development the subject of the DC as originally granted: Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 at 421; North Sydney Council v Michael Standley& Associates Pty Limited (1998) 43 NSWLR 468 at 474.

13. There is no relevant approval body required to be consulted under s 4.55(2)(b) of the EPA Act and the MA has been notified in accordance with s 4.55(2)(c) of the EPA Act. The parties have informed me that no submissions were received and accordingly, s 4.55(2)(d) of the EPA Act, which would have required consideration of any submission made, is not engaged.

14. As required by s 4.55(3) of the EPA Act, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the MA. I have also taken into consideration such reasons given by the consent authority as are available from the documents filed with the Court for the grant of the DC that is sought to be modified.

15. Finally, I note as mandated by s 4.55(4) of the EPA Act that the modification of a development consent in accordance with that section ‘is taken not to be the granting of development consent’ and it therefore follows that many of the provisions in SLEP, including development standards, which operate as a pre-condition to the grant of a development consent, do not present a jurisdictional barrier to the approval of a modification application. As previously noted however, I have taken into consideration relevant matters referred to in s 4.15(1) of the EPA Act, including SLEP and Sydney Development Control Plan 2012 and agree with the parties that the development the subject of the MA satisfactorily addresses those controls.

16. Disposal of proceedings in accordance with the parties’ decision: 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.

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the MA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

18. The Court notes:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed under cl 121B of the Environmental Planning & Assessment Regulation 2000 to the applicant amending modification application no. D/2016/917/C to rely upon the document referred to at Annexure ‘C’.

2. The amended application as described at Annexure ‘C’ was lodged on the NSW Planning Portal on 23 August 2022.

3. The applicant subsequently filed the amended application with the Court on 23 August 2022.

4. The respondent’s reasons for agreement to the terms of the decision are set out in Annexure ‘D’.

19. The Court orders:

1. The appeal is upheld.

2. Development consent no. D/2016/917 for the continued extension of trading hours at 16 O’Connell Street, Sydney, legally described as Lot 1 in SP55932 is modified in the terms set out at Annexure ‘A’.

3. Development consent D/2016/917 for the continued extension of trading hours at 16 O’Connell Street, Sydney, legally described as Lot 1 in SP55932 as modified by the Court is set out at Annexure ‘B’.

……………………….

C McEwen

Acting Commissioner of the Court

**********

Annexure A 

Annexure B

Annexure C

Annexure D 

Decision last updated: 12 September 2022