Colsan Investments Pty Ltd v The Council of Camden

[2023] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation:

Colsan Investments Pty Ltd v The Council of Camden [2023] NSWLEC 1226

Hearing dates:

Conciliation conference on 20 February and 9 May 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the amended documentation listed in Annexure B.

(2) The Applicant is to pay the Respondent’s reasonable costs thrown away as a result of the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application No. 2021/1120/1 for the construction of a single storey pub, brewhouse and associated operation, store and ancillary bottle-shop with associated drive-thru at 2 Porter Street, Oran Park, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – development application – food and drink premises – pub – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 6.65, 9.3

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 2, ss 6.1, 6.6

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

Category:

Principal judgment

Parties:

Colsan Investments Pty Ltd (Applicant)
The Council of Camden (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/314919

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a single storey pub, brewhouse and associated operation, store and ancillary bottle-shop with a drive-through facility at 2 Porter Street, Oran Park. The development application was refused on 27 September 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 February 2023 and continued by Online Court. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 9 May 2023, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The changes made to the development application include a reduction in the pub patron area and the number of patrons, an increase in landscaping, the removal of the brew house and connected bar, and removal of the outdoor dining terrace.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the history of the development application and the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is permissible with consent pursuant to the Oran Park and Turner Road Precinct Plan 2007 (Precinct Plan) in Appendix 2 to the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC), the land being zoned B5 Business Development under the Precinct Plan, in which food and drink premises are an innominate use permitted with development consent.

• In satisfaction of s 6.1 of the Precinct Plan and based on the Statement of Environmental Effects dated 30 June 2021 (SEE), infrastructure is available within the immediate vicinity to adequately service the site.

• In satisfaction of s 6.6 of the Precinct Plan, the Oran Park Precinct Development Control Plan 2022 (OPP DCP) provides detailed development controls for the site. Based on the SEE and the Business Papers for the Camden Local Planning Panel Meeting held on 20 September 2022, I have considered the controls in the OPP DCP as they relate to the development the subject of the amended development application.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Contamination Investigation Report that accompanies the Class 1 Application, the site is suitable for the development.

• Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development, which concerns the Hawkesbury-Nepean River system. With respect to Ch 9 of the SEPP B&C, based on the SEE and the Business Papers for the Camden Local Planning Panel Meeting held on 20 September 2022, I have considered the matters required to be considered by s 9.3.

• Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies to the proposal. Section 3.6 provides that a consent authority must not grant development consent to an application to display signage unless it is satisfied that the signage is consistent with the objectives in s 3.1(1)(a) and satisfies the assessment criteria in Sch 5. Based on the SEE assessment of the signage against the equivalent repealed provisions in the State Environmental Planning Policy No 64–Advertising and Signage, I am satisfied that the signage is consistent with the objectives in s 3.1(1)(a) of the SEPP IE and satisfies the assessment criteria in Sch 5.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. The Council of Camden, as the relevant consent authority, has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. 2021/1120/1 in accordance with the documents listed in Annexure B.

9. The Court orders that:

1. Leave is granted to the Applicant to rely on the amended documentation listed in Annexure B.

2. The Applicant is to pay the Respondent’s reasonable costs thrown away as a result of the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 2021/1120/1 for the construction of a single storey pub, brewhouse and associated operation, store and ancillary bottle-shop with associated drive-thru at 2 Porter Street, Oran Park, is determined by a grant of consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 16 May 2023