DWC Operations Management Pty Ltd v Parramatta City Council

[2022] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:

DWC Operations Management Pty Ltd v Parramatta City Council [2022] NSWLEC 1104

Hearing dates:

Conciliation Conference on 22 February 2022

Date of orders:

28 February 2022

Decision date:

28 February 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court Orders that:

(1) The appeal is allowed.

(2) Pursuant to s 23 Land and Environment Court Act 1979 the name of the applicant in these proceedings is amended to Patrick Hurley.

(3) Development consent is granted to development application DA/734/2021 for the change of use from a club to a pub and associated alterations and additions with on site parking for 98 cars subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – change of use to a pub – conciliation conference – agreement reached – orders made

Legislation Cited:

Auburn Local Environmental Plan 2010

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

Environmental Planning and Assessment Regulation 2000 cll 41, 45, Pt 4

Land and Environment Court Act 1979 ss 23, 34

State Environmental Planning Policy (Coastal Management) 2018, cll 11, 13, 14

State Environmental Planning Policy (Infrastructure) 2007, cl 101

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

DWC Operations Management Pty Ltd (Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
R McCullough (Solicitor) (Respondent)

Solicitors:
GLC Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/351057

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application lodged with Parramatta City Council for the change in use of an existing registered club, Dooleys Waterview Club, to a pub with associated alterations and additions, at 214 Silverwater Road, Silverwater. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application was subsequently refused by the Council on 14 January 2022. 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 [12] below, are made as a result of an agreement between the parties that was reached at 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 22 February 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed the same date.

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 nature of the proceedings, and deals with the jurisdictional issues, including the permissibility of the proposed change in use.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the 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 for the reasons that follow.

6. Firstly, the proposed development is permissible with development consent by operation of Pt 4 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The land is zoned IN1 General Industrial pursuant to the Auburn Local Environmental Plan 2010 (ALEP 2010). Although development for the purpose of a pub is prohibited in the zone, the site benefits from existing use rights as a registered club based on the history set out in the Jurisdictional Statement. Clause 41(1)(e) of the EPA Regulation allows an existing use, if it is a commercial use, to be changed to another commercial use. Relevantly, it provides as follows:

41 Certain development allowed

(1) An existing use may, subject to this Division—

(a)  be enlarged, expanded or intensified, or

(b)  be altered or extended, or

(c)  be rebuilt, or

(d)  be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e)  if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

(2) However, an existing use must not be changed under subclause (1)(e) or (f) unless that change—

(a)  involves only alterations or additions that are minor in nature, and

(b)  does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and

(c)  does not involve the rebuilding of the premises associated with the existing use, and

(d)  does not involve a significant intensification of that existing use.

(e)  (Repealed)

(3) In this clause—

commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument).

light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).

7. A registered club falls within the definition of “retail premises” within the Standard Instrument, as it is a food and drink premises. It is therefore a commercial use. A pub is similarly a food and drink premises, and therefore falls within the definition of “retail premises” and by doing so, is a commercial use. It is therefore permissible to change the use from a registered club to a pub, subject to meeting the requirements of cl 41(2) above, and subject to obtaining development consent pursuant to cl 45 of the EPA Regulation.

8. I am satisfied that the requirements of cl 41(2) are met. As set out in the Statement of Environmental Effects, the proposed works are within the existing building footprint and do not increase the floor space of the building, and the allowable patron numbers are not proposed to be increased. The internal works are minor works to reconfigure the bar and dining areas, and relocate the gaming room and function rooms, as well as to provide an updated and contemporary finish. Accordingly, I am satisfied that the change of use involves only alterations that are minor in nature, does not increase the floor space of the premises, does not involve the rebuilding of the premises, and does not involve a significant intensification of the existing use.

9. Secondly, I am satisfied that the remaining jurisdictional preconditions identified by the parties are met, as follows:

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has been used for club purposes since the 1950s and for residential use prior to that, there is no history to suggest that the site is contaminated.

• The site has frontage to a classified road, Silverwater Road, but there is no change to the vehicular access, which is obtained from Clyde Street rather than from Silverwater Road. Therefore, I am satisfied of the matters in cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007.

• Part of the site is mapped as being in a “proximity area for coastal wetlands”, which means that cl 11 of the State Environmental Planning Policy (Coastal Management) 2018 (SEPP CM) applies. As there is no increase to floor area in the proposed development, and the works do not fall within the area mapped, I am satisfied that the proposed development will not significantly impact on existing coastal wetlands, as required by cl 11 of the SEPP CM.

• The site is also mapped as being within the “Coastal Environment Area” and the “Coastal Use Area”, such that cll 13 and 14 of the SEPP CM similarly apply. As there is no increase to floor area in the proposed development and the proposed development is within the existing developed area, it will not compromise any of the matters in cl 13(1) or cl 14(1) of the SEPP CM, and is sited to avoid any adverse impact.

10. 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)).

11. 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.

Orders

12. The Court orders that:

1. The appeal is allowed.

2. Pursuant to s 23 of the Land and Environment Court Act 1979 the name of the applicant in these proceedings is amended to Patrick Hurley.

3. Development consent is granted to development application DA/734/2021 for the change of use from a club to a pub and associated alterations and additions with on site parking for 98 cars subject to the conditions in Annexure A.

……………………….

Joanne Gray

Commissioner of the Court

(Annexure A) (271242, pdf)

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Decision last updated: 28 February 2022