Graham Martin Taylor v Sutherland Shire Council

[2021] NSWLEC 1188

Land and Environment Court

New South Wales

Medium Neutral Citation:

Graham Martin Taylor v Sutherland Shire Council [2021] NSWLEC 1188

Hearing dates:

Conciliation conference on 31 March 2021

Date of orders:

21 April 2021

Decision date:

21 April 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court makes the following orders:
(1) The Applicant is granted leave to amend the Modification Application to be made from s 4.55(1A) to s 4.55(2) of the Environmental Planning and Assessment Act 1979.
(2) The appeal is upheld.
(3) The Modification Application MA 20/0090 to modify condition 15 of Development Application No DA 15/0641 to allow Sunday trading of the approved café on the land known as 143-145 Ewos Parade, Cronulla being Lot A in deposited plan 378445 is approved, subject to the modified conditions at Annexure A.

Catchwords:

MODIFICATION APPLICATION – amendment of trading hours – amended hours – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, s 34

Sutherland Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Graham Martin Taylor (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Hall and Wilcox (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/290573

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA15/0641. The modification application seeks to amend a condition of that consent so that the operating hours for the café could extend to 7am to 3pm. Throughout the proceedings before the Court the hours of operation sought were amended to 9am to 3pm. The café is located at 143-145 Ewos Parade, Cronulla (Lot A DP 378445) (the site).

2. The modification application seeks consent to amend condition 15 to state:

“i) Trading Hours.

The trading hours of the premises shall be restricted to the following:

…

Sunday 9.00 am to 3.00 pm

…”

3. The modification application was originally lodged with the Respondent pursuant to s 4.55(1A) of the EPA Act, minimal environmental impact. However, the Applicant was granted leave to amend their application to be lodged pursuant to s 4.55(2) of the EPA Act, other modifications.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55 of the EPA Act.

5. At the conciliation conference, an agreement, under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended operating hours. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 31 March 2021.

6. 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 site is zoned B1- Neighbourhood Centre under the Sutherland Local Environmental Plan 2015 (LEP 2015). Development for the purpose of neighbourhood shop is permissible with consent within the zone.

2. In accordance with s 4.55(2)(a) of the EPA Act, the proposed modification is substantially the same development as the development for which consent was originally granted.

3. Pursuant to s 4.55(2)(b) of the EPA Act, no consultation or concurrence is required for the modification application.

4. I am satisfied that the modification application has been notified in accordance with the requirements of the development control plan. As required by s 4.55(2)(d) of the EPA Act, I have considered those submissions in determining the modification application.

7. 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the Modification Application to be made from s 4.55(1A) to section 4.55(2) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. The Modification Application MA 20/0090 to modify condition 15 of Development Application No DA 15/0641 to allow Sunday trading of the approved café on the land known as 143-145 Ewos Parade, Cronulla being Lot A in deposited plan 378445 is approved, subject to the modified conditions at Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (186635, pdf)

**********

Decision last updated: 21 April 2021