Fobeza Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1696

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fobeza Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1696

Hearing dates:

Conciliation Conference 9 December 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended application.

(2) Development consent is granted to Development Application No. DA2022/0095 for temporary continued use of the existing outdoor dining area and alterations and additions to the existing pub known as the Illinois Hotel, including additional car parking, landscaping and signage at 13-15 and 21-23 Parramatta Road, Five Dock subject to the conditions at 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 agreed sum of $5,000.00 within 28 days.

Catchwords:

DEVELOPMENT APPLICATION – temporary outdoor dining use – alterations and addition to an existing pub – conciliation conference – agreement between the parties – orders made.

Legislation Cited:

Canada Bay Local Environmental Plan 2013 cll 4.3, 4.4

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 s 37

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Industry and Employment) 2021 s 3.11, Sch 3

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

Texts Cited:

Canada Bay Development Control Plan 2017

Category:

Principal judgment

Parties:

Fobeza Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Mils Oakley (Applicant)
Pikes Verekers Lawyers (Respondent)

File Number(s):

2022/00149413

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Forbeza Pty Ltd, appeals pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act)against the deemed refusal of their development application by City of Canada Bay Council. The development application, as amended, seeks consent for the continued temporary use of the existing outdoor dining area as well as alterations and additions to the existing pub known as the Illinois Hotel, including additional carparking and signage. The development is proposed at 13-15 and 21-23 Parramatta Road, Five Dock (lots 1-5 in DP 456371, Lot 1 DP 130654, and Lot 253 DP 656108.

2. The appeal was initially listed for a conciliation conference on 15 September 2022 in accordance with s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation, however following the conciliation, discussions continued between the parties. These discussions led to the production of amended plans and documentation which assisted an agreement in principle being reached between the parties. The amended plans have been lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The matter was listed for a further conciliation conference on 9 December 2022. I presided over the further conciliation conference.

3. 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 below, are made as a result of an agreement between the parties that was reached at the further conciliation conference. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The development application is made with the consent of the owner of the land on which development is proposed.

2. The development application was placed on public exhibition between 5 and 26 April 2022 and then between 26 May and 16 June 2022, in accordance with the requirements of the Canada Bay Development Control Plan 2017. Fifteen submissions were received in response to the notification. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires that a consent authority must not consent to development on land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use. The proposed development on 13-19 Parramatta Road, Five Dock will continue to be used for a ‘pub’. No change of use is proposed, and I accept the historical use of the site makes the likelihood of contamination low. The proposed development of 21-23 Parramatta Road, Five Dock includes the demolition and removal of the existing buildings in association with the previous use as a car sales yard. The remainder of that part of the site will continue to be used for car parking and retains the existing concrete finish. Having considered whether the site is contaminated, I am satisfied that the site is suitable for the proposed development.

4. The development application proposes new signage. Pursuant to s 3.11 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) a consent authority must not grant consent to an application to display an advertisement unless firstly it is consistent with the objectives of Ch 3 of SEPP IE, secondly has been assessed in accordance with Sch 3 and is acceptable in terms of impacts. An assessment of the proposed signage against these requirements is included in the statement of environmental effects. I am satisfied the requirements of s 3.11 of SEPP IE is met for the following reasons:

• The proposed signs are consistent with the character of the area and the streetscape. The proposed signs relate specifically to the business (no third-party content) and are considered suitable for a business within the B6 Enterprise Corridor zone. The signs, while illuminated — back lit and internally lit, will be able to be regulated by the Hotel as required. They will not cause glare or distract drivers along Parramatta Road or any adjoining residents

• The proposed signs will not detract from the scenic amenity of the locality.

• The proposed signs will not compromise any important views or the skyline.

• No adverse impacts arise from the proposed development, and it is considered to be consistent with the aims and objectives of the SEPP IE.

5. Canada Bay Local Environmental Plan 2013 (LEP 2013) applies to the land. Development for the purpose of a pub is permitted with consent in the B6 Enterprise Corridor zone.

6. The site is subject to a maximum height of buildings control of 12m pursuant to cl 4.3 of the LEP 2013. The overall height of the development is not increased beyond the existing height and therefore complies with the maximum height of buildings control.

7. The site is subject to a maximum floor space ratio (‘FSR’) control of 1:1 pursuant to cl 4.4 of the LEP 2013. The proposal provides an FSR of 0.45:1, which complies with the maximum floor space ratio control.

8. The site is identified as being within a Class 5 acid sulfate soils area. However, the works are not likely to lower the water table below 1.0m AHD on any land within 500m of a Class 1, 2 and 3 land classifications. Accordingly, I am satisfied a preliminary assessment is not required.

5. 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.

6. 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.

7. The Court notes that:

1. the City of Canada Bay Council as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application DA2022/0095 in accordance with the documents listed in Annexure B.

2. The Applicant filed the amended development application with the Court on 6 December 2022.

3. The Applicant lodged the Amended Application, being the documents listed in Annexure B, on the NSW Planning Portal on 2 December 2022.

8. The Court orders that:

1. The Applicant is granted leave to rely on the amended application.

2. Development consent is granted to Development Application No. DA2022/0095 for temporary continued use of the existing outdoor dining area and alterations and additions to the existing pub known as the Illinois Hotel, including additional car parking, landscaping and signage at 13-19 and 21-23 Parramatta Road, Five Dock subject to the conditions at 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 agreed sum of $5,000.00 within 28 days.

D Dickson

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 14 December 2022