Draybi Bros Pty Ltd v Cumberland Council

[2025] NSWLEC 1114

Land and Environment Court

New South Wales

Medium Neutral Citation:

Draybi Bros Pty Ltd v Cumberland Council [2025] NSWLEC 1114

Hearing dates:

Conciliation Conference 14 November 2024 (agreement filed 17 December 2024)

Date of orders:

27 February 2025

Decision date:

27 February 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 2023/0333 for construction and use for a restaurant, associated signage, landscaping and stormwater drainage works, on land at 95-99 Blaxcell Street, Granville, NSW 2142, being Lot 1 in DP 857303, subject to conditions in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,500 within 28 days of the making of these orders.

Catchwords:

DEVELOPMENT APPEAL – drive through restaurant - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Sch 1

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 6.13

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.122

Category:

Principal judgment

Parties:

Draybi Bros Pty Ltd ACN 86 001 744 038 (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Centurian Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/234144

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Cumberland Council (the Council) of DA No 2023/0333 (the DA) for construction and use for a restaurant and associated signage, landscaping and stormwater drainage works (the Proposed Development) at Nos 95-99 Blaxcell Street, Granville NSW 2142, being Lot 1 in DP 857303 (the Site).

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 site and at Council chambers.

3. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. The DA, as amended, seeks consent for the construction and use of a restaurant and associated signage, landscaping and stormwater drainage works at Lot 1 in DP 857303, being No. 95-99 Blaxcell Street, Granville.

The Site

5. The Site is currently devoid of any structures and is grassed. It is on the corner of Charles Street and Blaxcell Street and is zoned E1 Local Centre pursuant to the Cumberland Local Environmental Plan 2021 (CLEP). A restaurant or cafe, as subsets of food and drink premises and commercial premises respectively, is permitted with consent in the E1 zone. The proposed development meets all of the objectives of the E1 zone except for one which is not relevant.

6. The Respondent has approved, pursuant to section 38(1) of the EPA Regulation, the Applicant amending the DA in accordance with the amended plans and documents as set out in Notations at the end of this judgment.

7. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

8. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters, reproduced from the parties agreed Statement:

State Environmental Planning Policy (Transport and Infrastructure) 2021

9. The site is located within 5 m of a pole supporting an exposed overhead electricity power line. Consistent with s 2.48(2)(a), written notice was given to Endeavour Energy. Comments were received, and considered, in response to the effect that Endeavour Energy raised no objection subject to conditions.

10. Take away food and drink premises with drive through facilities that generate 200 or more motor vehicle per hour trigger s .2.122 traffic generating development referral provisions to Transport for NSW. When such a referral is required, s 2.122(4) requires the consent authority to consider any response received within 21 days and to further consider the accessibility of the site including the efficiency of movement of people, freight to and from the site, the extent of multi-purpose trips, the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and any potential traffic safety, road congestion or parking implications of the development.

11. The absence of identify of an occupant for the premises creates some difficulty in predicting trip generation. The RTA Guide for traffic generating development gives figures of 180 vehicles per hour and 230 vehicles per hour for a sensitivity test for a McDonalds, whilst the numbers for a KFC restaurant are 100 per hour and 120 per hour respectively. In other words, the only circumstance in which 200 vehicles per hour, equating to one vehicle every 18 seconds, would arise is for a highly utilised McDonalds restaurant. Even if McDonalds did take occupancy on this site, having regard to restaurant size, and the relatively small number of parking spaces, there being one drive through lane and ordering facility only, and the site’s location is remote from heavily used classified roads, the parties are satisfied that the s 2.122 trigger of 200 vehicles per hours is not activated.

12. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties Statement at paragraph 14 to 32 which I have not reproduced in whole, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. State Environmental Planning Policy (Resilience and Hazards) 2021

3. State Environmental Planning Policy (Transport and Infrastructure) 2021

Cumberland Local Environmental Plan 2021 (CLEP)

13. As noted above the applicable zone is E1, the proposed development is permissible and has been considered against the E1 zone objectives in cl2.3(2) of the CLEP.

14. The proposed development complies with the principal development standards. Clause 4.3 provides for a maximum building height of 12m for the subject site. The height of the proposed building height, excluding stacks, is approximately 5.8m. Clause 4.4 provides for a maximum floor space ratio of 1.5:1. The proposed floor space ratio is 0.14:1.

15. The parties have set out in detail the CLEP miscellaneous and local provisions at paragraphs 38 to 47 of the Statement. I accept the parties analysis and agree with their conclusions that no jurisdictional impediments arise.

16. For completeness I reproduce paragraph 46 from the parties following analysis in the Statement with regard to the Council’s contentions 1 and 2 of ‘urban heat’ and ensuring ‘active street uses’:

17. In relation to urban heat provisions at clause 6.12(2), the parties’ position is that:

“(a)   the building facades, roof and paved surfaces have been designed to reduce adverse effects of solar heat on surrounding land.

(b)   The awnings proposed over Blaxcell Street will provide shelter from the sun and improved public comfort at street level.

(c)   heating, ventilation and air conditioning systems are sited and designed in a manner to minimise the release of heat in the direction of private open space of neighbouring land and the public domain.

(d), (e)   Green infrastructure is defined to mean the network of green spaces, natural systems and semi-natural systems that support sustainable communities and includes waterways, bushland, tree canopy and green ground cover, parks and open spaces. On a development site of the size proposed in an established urban environment, the respondent’s expectations for green infrastructure are confined to a satisfactory provision of green ground cover. On that (more confined) criteria, the parties are satisfied that the street trees and site landscaping will assist, to a satisfactory degree, minimising urban heat.

(f)   the building design will achieve a satisfactory level of passive thermal performance.”

18. Clause 6.13 seeks to ensure that active uses are provided at the street level in certain zones, including the E1 zone, to encourage the presence and movement of people. In respect of jurisdictional requirements at clause 6.13(3) and consistent with those requirements, the parties’ position is that the ground floor of the building:

“(a)   will not be used for the residential accommodation or serviced apartments;

(b)   will not be used for a car park or to provide ancillary car parking spaces; and

(c)   the ground floor use and building siting and design elements sufficiently encourage interaction between the inside of the building and the public footpath along Blaxcell Street.”

Other s 4.15(1) Considerations

19. I accept the parties’ agreed position that the amended DA can be approved taking into consideration the matters in sections 4.15(1)(b) – (e) of the EPA Act. Matters relevant to paragraphs (b), (c) and (e) are considered generally in the SEE. The parties agree that having regard to amendments made and conditions of consent agreed upon, the submissions do not raise matters that warrant refusal of the DA.

Public Participation

20. The DA was notified by the Council for the requisite period. The Council received public submissions which are summarised at paragraphs 52-54 of the respondent’s SOFAC. The submissions were accordingly before the Court.

21. The Amended DA was not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with Sch 1, s 23 of the EPA Act.

22. Three local residents voiced their concerns to the Court at the on site s 34 conference.

23. The parties agree that having regard to amendments made and conditions of consent agreed upon, the submissions do not raise matters that warrant refusal of the DA.

24. I am satisfied that the objectors reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion

25. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

26. 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 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.

Notations

27. The Court notes that:

1. Cumberland Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA2023/0333 in accordance with the documents listed below:

Architectural Drawings (Prepared by Baini Design, Project No. 22095)

Drawing/Plan No.	Issue	Plan Title	Dated
00	G	Compliance Table	19/11/2024
01	G	Site Plan	19/11/2024
02	G	Site Analysis Plan	19/11/2024
03	G	Shadow Diagrams	19/11/2024
04	G	Ground Floor Plan	19/11/2024
05	G	Ground Floor RCP	19/11/2024
06	G	Elevations & Sections	19/11/2024
07	G	Acoustic Fencing Details, Kitchen Details	19/11/2024
08	G	Kitchen Details - Perspectives	19/11/2024
09	G	Kitchen Details – Spatial Planning	19/11/2024
10	G	Kitchen Details – Circulation Diagram	19/11/2024
11	G	Kitchen Details – Fryer + Oven Stacks	19/11/2024
12	G	3D Perspectives	19/11/2024
13	G	Schedule of Finishes	19/11/2024
14	G	Waste Details	19/11/2024
15	G	3D Views	19/11/2024

Landscape Drawings (Prepared by iScape Landscape Architecture)

Drawing/Plan No.	Issue	Plan Title	Dated
14.24(23) / 455’B’	B	Landscape Plan	04/12/2024

Specialist Reports

Document	Ref No.	Issue	Prepared By	Dated
Supplementary Traffic Advice	Project No. 240590.01DA	McLaren Traffic Engineering	13 November 2024
Supplementary Traffic Advice	240590.02DA	McLaren Traffic Engineering	27 November 2024
Supplementary Traffic Advice	240590.03 DA	McLaren Traffic Engineering	9 December 2024
Updated Plan of Management	Caladines Town Planning Pty Ltd	6 December 2024
Amended Environmental Noise Impact Assessment	7726-1.1R	REV D	Day Design Pty Ltd	6 December 2024

Orders

28. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to No DA2023/0333 for the construction and use of a restaurant and associated signage, landscaping and stormwater drainage works at the property known as 95-99 Blaxcell Street, Granville NSW 2142 being Lot 1 DP 857303, subject to the conditions at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,500 within 28 days of the making of these orders.

L Byrne

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 27 February 2025