CWG Property Pty Limited v Willoughby City Council

[2020] NSWLEC 1409

Land and Environment Court

New South Wales

Medium Neutral Citation:

CWG Property Pty Limited v Willoughby City Council [2020] NSWLEC 1409

Hearing dates:

Conciliation conference on 1 September 2020

Date of orders:

4 September 2020

Decision date:

04 September 2020

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application DA-2017/240/A seeking to modify development consent DA/2017/240 at G07/150 Mowbray Road, Willoughby, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

MODIFICATION APPLICATION – hours of operation – noise impact – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Willoughby Local Environmental Plan 2012

Category:

Principal judgment

Parties:

CWG Property Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
P Merlino (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2019/234535

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings relate to an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Willoughby City Council’s (Council) deemed refusal of Modification Application No. DA-2017/240/A (Modification Application) to amend the conditions of consent in DA-2017/240 granted on 17 November 2017 (Development Consent). The Modification Application sought an amendment to a condition preventing the continued 24-hour use of the gym, the subject of the Development Consent.

2. The filing of the Class 1 Application complied with subs 8.10 and the deemed refusal of the Modification Application is in accordance with subs 8.11 of the EPA Act.

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 was held on 1 September 2020. I presided over the conciliation conference.

4. At the conciliation conference the parties reached agreement as to the terms of a decision in the proceedings which would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the Modification Application subject to conditions.

5. 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 its function under s 4.16 of the EPA Act to grant consent to the Modification Application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. The parties identified the jurisdictional prerequisites relevant in these proceedings and explained how the jurisdictional prerequisites have been satisfied in a short statement entitled “The Check on Jurisdiction” marked as Annexure B to the Section 34 Agreement executed by the parties. The executed Section 34 Agreement has been placed on the Court file.

7. The jurisdictional prerequisites which have been satisfied are:

1. The EPA Act – relevantly the objects in s 1.3:

(a)  to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

…

(g)  to promote good design and amenity of the built environment,

(h)  to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

2. And relevantly matters for consideration under s 4.15(1)(a)    

(i) any environmental planning instrument, and

…

(iii)  any development control plan, and

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

1. And s 4.15(1)

(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.

3. Further under the EPA Act:

1. The development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

2. The notification requirements have been satisfied in accordance with cl 40 of the Environmental Planning & Assessments Regulation 2000 (the Regulations).

3. Owner’s consent for the development, and the Modification Application, has been provided.

4. Willoughby Local Environmental Plan 2012 (WLEP)

5. Clause 1.2 – Aims of the Plan – subclauses

6. (e)(i) – in relation to amenity; to maintain and enhance the existing amenity of the local community.

7. (e)(ii) – in relation to amenity; reduce adverse impacts from development on adjoining or nearby residential properties;

8. (h) – in relation to wellbeing; to provide social, cultural, recreational and community activities to meet the needs of residents, workers and visitors to Willoughby.

9. Zoning: The land is zoned B5 – Business Development. Recreational facilities (indoor), which include gymnasiums, are permissible with consent in this zone. The premises contain an approved gymnasium pursuant to DA-2017/240. The modification application relates only to the ongoing 24-hour use of the existing approved and operating gym and the noise amelioration measures required to permit the ongoing 24-hour use of the gym.    

10. Clause 2.3 – Zone objectives

• To enable a mix of business and warehouse uses, and bulky goods premises that require large floor areas, in locations that are close to, and that support the viability of centres.

• To accommodate businesses, provided that their access needs and the traffic generated does not interfere with the safety and efficiency of the road network.

8. The objectives in the EPA Act, the aims of the WLEP, and the objectives in Zone B5 are satisfied by the imposition of conditions 22A – 22D of the Modification Application, and supported by the Pulse Acoustic Reports dated 30 November 2017 (Construction Certificate Noise and Vibration Assessment – Anytime Fitness Willoughby) and 24 October 2019 (Noise and Vibration Compliance Measurements and Assessment – Anytime Fitness Willoughby).

9. The modification of the conditions of consent to the Development Consent involves the deletion of condition 18, and the insertion of conditions 22A, 22B, 22C and 22D. I am satisfied that the insertion of these conditions satisfies the requirements set out in the EPA Act, and WLEP.

10. Having considered the parties’ submissions in relation to jurisdiction, 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.

11. 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. In accordance with s 4.16 and s 4.17 of the EPA Act I uphold the appeal, and grant consent to the Modification Application subject to the conditions of consent in Annexure A hereto.   

12. The Court orders that:

1. The appeal is upheld.

2. Modification Application DA-2017/240/A seeking to modify development consent DA/2017/240 at G07/150 Mowbray Road, Willoughby, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (168517, pdf)

**********

Decision last updated: 04 September 2020