Iris Hotels Wentworthville Property Pty Ltd ATF Iris Hotels Wentworthville Property Trust v Cumberland Council

[2024] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation:

Iris Hotels Wentworthville Property Pty Ltd ATF Iris Hotels Wentworthville Property Trust v Cumberland Council [2024] NSWLEC 1023

Hearing dates:

Conciliation Conference 19 January 2024

Date of orders:

30 January 2024

Decision date:

30 January 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application No DA2021/0624 for the demolition of the northern building and the construction of a pub, hotel and signage at 385 Great Western Highway, South Wentworthville is determined by granting consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – construction of hotel and pub – frontage onto classified road – height of building - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 4.6, 5.1, 5.1A, 5.10, 5.21, 6.1, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9, 6.10, 6.14, 6.16, Sch 5

Environmental Planning and Assessment Regulation 2000, cll 49, 55

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, Div 5 Subdiv 5

Roads Act 1993, s 138

Category:

Principal judgment

Parties:

Iris Hotels Wentworthville Property Ltd ATF Iris Hotels Wentworthville Property Trust (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor)(Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Cumberland Council (Respondent)

File Number(s):

2023/322525

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2021/0624 for the demolition of the northern building (known as Block A) and construction of a new four-storey building comprising of a hotel and pub over three levels of basement parking, including associated signage, landscaping and civil works (the Proposed Development) at 385 Great Western Highway South Wentworthville legally described as Lot 1 in DP 871387 (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 has been held on 19 January 2024. I have presided over the conciliation conference.

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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) regarding frontage of the Proposed Development onto a classified road and the terms of cl 4.6 of the Cumberland Local Environmental Plan 2021 (CLEP) to justify the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note which I considered to form the requisite state of satisfaction as set out below.

7. Owner’s Consent has been provided at Tab 1 of the Class 1 Application in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

8. The Great Western Highway is a classified road and the Respondent is the roads authority for the Great Western Highway pursuant to the Roads Act 1993 (Roads Act). Although the Development Application form identifies the Proposed Development as being integrated development pursuant to s 4.46(3) of the EPA Act, the Proposed Development is not integrated development in respect of the s 138 Roads Act because the Respondent is the roads authority for the Great Western Highway.

9. The Proposed Development proposes works to the driveway which are situated within the road reserve and as a result, consent will be required under s 138 of the Roads Act for those works and the conditions of consent include the following at the end of condition 1:

“Notwithstanding the abovementioned plans, vehicular access works and works within the public road are to proceed in accordance with (1) condition 3 below save for any removal of the driveway to No. 375 Great Western Highway which is not to take place, and (2) any refinements endorsed within plans approved under s.138 of the Roads Act 1993.”

10. The requirement for approval of a s 138 Roads Act application is the subject of condition of consent 21.

11. Subdivision 2 of Division 5 of theTransport and Infrastructure SEPP applies to development applications that are likely to affect an electricity transmission or distribution network. On 30 November 2021, notice was given to Endeavour Energy by the Respondent pursuant to s 2.48 of the Transport and Infrastructure SEPP. Endeavour Energy did not raise any objection to the Proposed Development.

12. Section 2.119(2) of the Transport and Infrastructure SEPP applies to development with frontage to a classified road and provides that the consent authority must not grant consent to development on land with a frontage to a classified road, unless it is satisfied that where practicable and safe, vehicular access to the land must be provided by a road other than the classified road and the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development and that the development is not sensitive to traffic noise or vehicle emissions or is appropriately designed or located or includes measures to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

13. The Parties have considered s 2.119(2)(a) of the Transport and Infrastructure SEPP and agree that it is not practicable (or even possible) for access to the Site to be provided via a road other than a classified road, as all three frontages to the Site face classified roads.

14. The Parties agree that the volume of vehicles using the Great Western Highway, Cumberland Highway and the M4 to gain access to the land, will not have an adverse effect on the efficiency and ongoing operation of each of the three classified roads as required by s 2.119(2)(b) of the Transport and Infrastructure SEPP. Existing vehicular access along the Great Western Highway frontage will be relocated to the east, however, the works will not cause disruption to traffic movements along the classified road.

15. The Applicant relies on the Traffic Impact Assessment prepared by TTPP dated 5 July 2022 filed with the Class 1 Application at Tab 19. The Traffic Impact Assessment concludes that if consent is granted, the Great Western Highway intersection will continue to operate at similar levels of service to existing conditions.

16. The Applicant has also filed and relies on the letter from TfNSW dated 13 December 2023 together with consent condition 3 which incorporates the conditions in that letter.

17. The Applicant will prepare a detailed Construction Traffic Management Plan prior to the commencement of construction in accordance with consent condition 22.

18. Accordingly, I have reached the required state of satisfaction required by s 2.119 of the Transport and Infrastructure SEPP insofar as the Proposed Development having frontage on a classified road.

19. The Site is located within the zone E3 Productivity Support Zone (E3 Zone) pursuant to the CLEP. Development for the purposes of a food and drinks premises (pub), hotel or motel accommodation and business identification signs are permissible with development consent in the E3 Zone.

20. The Proposed Development Application requires development consent for demolition of the northern building, pursuant to cl 2.7 of the CLEP.

21. The Proposed Development contravenes the maximum height of building (HOB) development standard prescribed in cl 4.3 of the CLEP of a 15m maximum HOB, whereas a HOB of 15.4m (excluding the architectural roof feature) is proposed. The Applicant relies on a written request prepared by Hamptons Property Services (Tab 7 Class 1 Application) to justify the contravention of the HOB development standard pursuant to cl 4.6 of the CLEP (Written Request).

22. The Parties are satisfied that the Written Request provides adequate justification as to the breach of HOB development standard.

23. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the CLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of CLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

24. The Development Application does not contravene the development standard in cl 4.4 of the CLEP which provides a maximum floor space ratio of 1:1. The Parties are satisfied by Drawing DA501 Issue B that the Amended Development Application complies with cl 4.4 of the CLEP.

25. The site is not marked on the following maps in the CLEP:

1. the Land Reservation Acquisition Map (cl 5.1 and 5.1A);

2. the Acid Sulfate Soils Map (cl 6.1);

3. the Foreshore Building Line Map (cl 6.3);

4. the Biodiversity Map (cl 6.5);

5. the Riparian Lands and Watercourses Map (cl 6.6);

6.    the Site Specific Provisions Map (cl 6.10);

7. the Design Excellence Map (cl 6.14); and

8. the Key Sites Map (cl 6.16).

26. In relation to heritage conservation and the provisions of cl 5.10 of the CLEP, the Site is not listed as a Heritage Item under Schedule 5 of the CLEP, nor is it identified within a Heritage Conservation Area. The Site is not in the immediate proximity of any listed heritage items.

27. Flood planning is relevant to the Proposed Development pursuant to cl 5.21 of the CLEP because Council’s flood mapping, as extracted below, identifies a small portion of the site being subject to a flood planning level. In response, the floor level of the building was raised by 300mm as shown in notation 9 on DWG No DA203 Issue B, Tab 4 Class 1 Application.

28. In respect of cl 5.21(2) criteria, the parties are satisfied and agree that:

1. The development is compatible with the flood function and behaviour of the land;

2. The development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties.

3. The development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood.

4. There are no known immediate risk to life matters that necessitate measures to manage the risk.

5. Subject to the imposition of conditions for sediment and erosion controls and the satisfactory implementation of those conditions, the development will not adversely affect the environment; cause avoidable erosion, siltation, the destruction of riparian vegetation or cause a reduction in the stability of banks or watercourses.

29. In respect of clause 5.21(3) criteria, the parties are satisfied and agree that:

1. The development will have no impact on projected changes to flood behaviour as a result of climate change;

2. The design and scale of the buildings are inconsequential and satisfactory in a flooding context.

3. The development incorporates measures to minimise the risk to life and will ensure the safe evacuation of people in the event of a flood.

4. There is no potential to modify, relocate or remove buildings if the surrounding area is impacted by flooding, but that remains satisfactory given the relatively low hazard on site.

30. Clause 6.4 of the CLEP requires that consent must not be granted unless the consent authority is satisfied that services essential for the development are available or adequate arrangements have been made to make them available. The parties and the Court accept that the Site contains adequate facilities which will be retained and upgraded where required to cater for the Proposed Development.

31. The Development Application is accompanied by a Stormwater Management Plan (Tab 29 Class 1 Application) and cl 6.7(2) of the CLEP requires that consent must not be granted unless the consent authority is satisfied that the development is designed to maximise the use of the water permeable surfaces having regard to the soil characteristics, includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, ground water or river water and avoids significant adverse impacts of stormwater runoff on adjoining properties. The parties are satisfied that the Development Application has considered and addressed the considerations in cl 6.7(3) of the CLEP.

32. Clause 6.9(4) of the CLEP requires that development consent must not be granted for land to which the clause applies unless the consent authority is satisfied that the Proposed Development is designed, sited and will be managed to avoid a significant adverse environmental impact in the context of any likely impact on salinity processes on the land. As the Site has been identified as moderate salinity potential on the Salinity Map of the CLEP, the Applicant relies on a Geotechnical Investigation Report prepared by Aargus Pty Ltd dated 28 May 2021 filed with the Class 1 Application. In accordance with that report, the parties agree and are satisfied that:

1. the development is not likely to have an adverse impact on salinity processes on the land,

2. salinity is not likely to have an impact on the development,

3. no specific measures are warranted to avoid, minimise or mitigate the impacts of the development.

33. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) aims to promote the remediation of contaminated land. Section 4.6 in Chapter 4 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development 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 suitable after undergoing remediation) for the proposed use. Further, if the land requires remediation to be made suitable, the consent authority is to be satisfied that the land will be remediated before the land is used for that purpose.

34. The Amended Statement of Environmental Effects prepared by Hamptons Property Services Pty Ltd filed with the Class 1 Application at Tab 2 confirms that the historical use of the Site does not suggest any potential contamination of the land. The Applicant also relies on a Detailed Site Investigation prepared by Aragus Pty Ltd, filed with the Class 1 Application at Tab 12 which concludes that the risk to human health associated with soil contamination is negligible within the context of the proposed use for a hotel and car park and that the Site is therefore suitable for the proposed use.

35. The Site is currently occupied by a hotel operated by the Applicant. The hotel includes a northern and southern building. The southern building is proposed to be retained as part of the Development Application. The additional use of the Site as a pub and the continued use of the Site as a hotel does not require any further consideration pursuant to s 4.6 of the Resilience and Hazards SEPP.

36. Part of the Proposed Development includes the installation of signage and pursuant to s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied, firstly, that the signage is consistent with the objectives set out in s 3.1(1)(a) of the Industry and Employment SEPP and, secondly, that the signage satisfies the assessment criteria specified in Schedule 5.

37. A detailed assessment against the relevant objectives of Schedule 5 is included in the Statement of Environmental Effects at pages 42-45. The parties provide the following in support of the Schedule 5 considerations:

“In relation to the character of the area, the Parties agree that the signage proposed is compatible with the character of the Site’s highway location and provides a series of visually interesting business identification signs. The proposed location of the signs provides discrete and larger areas that are consistent with the locality and provide a uniform approach to the appearance of signage on the Site, while suitably identifying the uses within the building.

The composition of business identification signage within the vicinity of the Site does not provide a high degree of regularity within the precinct, such that any one desired character or theme could be identified.

In relation to special areas, the signage proposed under the Development Application does not have any impact on the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas.

In relation to views or vistas the development application does not obscure or compromise any important views and the height of all the signage is within the confines of the building height.

In relation to streetscape, setting or landscape, the variation in signage types will provide visual interest that is responsive to the streetscape without being dominating nor out of scale with the buildings themselves, or having regard to adjoining properties, including those of a residential nature, to the east where the signage is not dominant and set well back from the property boundary.

The Parties agree that the signage provides a more contemporary response to the existing signage and changes to corporate branding, while identifying the additional use of the land.

In relation to the signage on the building itself, the parties agree that the signage is entirely compatible in scale, largely being attached to the elevations of the building such that it forms part of the overall architectural appearance.

The Architectural Plans prepared by Squillace Architects (Tab 5 of the Class 1 Application) demonstrate how the signage is integrated into the building and provides innovation through varying positions and materiality.

In relation to illumination, illumination of signage will be in accordance with the relevant Australian Standards. Illumination of signage will not detract from the amenity of the development. The signage is proposed to be illuminated 24 hours a day.

In relation to safety and subject to a condition requiring the LED screen on the pylon sign to be consistent with the relevant digital sign guidelines (see condition 7), the Development Application will not result in reduced road or pedestrian safety. Signage will not obscure pedestrian sightlines due to the sensitive positioning of signage.”

38. Development Consent is sought for the removal and replacement of trees in accordance with the Landscape Plans (Tab 31, Class 1 Application) as required by Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

39. 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. I adopt the reasons given by the parties as I have set out within this judgment.

40. 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.

Notations:

41. The Court notes that:

1. the Council, as the relevant authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the Applicant amending the Development Application in accordance with the following amended plans and documents:

1. Letter from Transport for NSW to Cumberland City Council dated 13 December 2023; and

2. Amended Signage Plans (Design 5145 MV), Revision 0, prepared by Fremont, dated 21 December 2023:

1. North Elevation- Signage Plan

2. SG-01- Building Façade Sign

3. SG-02- Wentworthville Tavern Letters

4. SG-03- Building Letters

5. SG-04- Wentworthville Tavern Letters

6. West Elevation- Signage Location

7. SG-05- Building letters

8. South Elevation- Signage Location

9. SG-06- IBIS Building Sign

10. SG-07- Wentworthville Tavern Letters

11. SG-08- IBIS Entrance Letters

12. East Elevation- Signage Location

13. SG-09- VIP Letters

14. SG-10- IBIS Building Sign

15. SG-11- Pylon Sign

(collectively, the Amended Development Application)

2. The Applicant was granted leave and filed the Amended Development Application with the Court on the same date as this agreement.

Orders:

42. The Court orders:

1. The appeal is upheld.

2. Development Application No DA2021/0624 for the demolition of the northern building and the construction of a pub, hotel and signage at 385 Great Western Highway, South Wentworthville is determined by granting consent subject to the conditions in Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 30 January 2024