North Sydney Council v North Sydney Leagues Club Ltd - [2017] NSWLEC 69

Land and Environment Court

New South Wales

Medium Neutral Citation: North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69
Hearing dates: 31 May 2017
Date of orders: 14 June 2017
Decision date: 14 June 2017
Jurisdiction: Class 1
Before: Moore J
Decision:
Orders at [90]

Catchwords: APPEAL – appeal on question of law against Commissioner’s decision– refurbishment of registered club premises; hours of operation and patron numbers – use of outdoor area (part of former bowling green) for dining – three grounds of appeal – incorrect interpretation of provisions of the applicable Local Environment Plan (Ground 1); manifestly unreasonable decision (Ground 2); and denial of procedural fairness (Ground 3)
APPEAL – Ground 1 – cl 2.5 of the applicable Local Environment Plan provides special regime for site – whether Commissioner’s interpretation of clause correct to exclude applicability of other clauses of the Local Environment Plan – Commissioner’s reasoning incorrect – nonetheless, a “fair reading” of the Commissioner’s decision discloses that he considered and dealt with the relevant matters, notwithstanding his conclusion that the clause was not applicable – Ground 1 fails
APPEAL – Ground 3 considered prior to Ground 2 – no necessity to consider Ground 2 given Appellant’s success on Ground 3
APPEAL – Ground 3 – reasonable expectation that Commissioner would make general findings and permit parties to be heard on conditions appropriate to reflect findings – imposition of condition of development consent without affording Appellant opportunity to be heard on its terms – denial of procedural fairness under the circumstances – Ground 3 made out – appeal upheld
APPEAL– parties reached agreed position on what amended condition of development consent should be imposed if Ground 1 failed but Ground 2 and/or 3 succeeded – powers of the Court on appeal – s 56A(2)(b) permits making “such other order in relation to the appeal” as might be dispositive of appeal without remitter to the Commissioner – in light of the parties’ agreement to a replacement condition of consent, appropriate to order amendment of conditions of development consent granted by Commissioner in lieu of remitter – consolidated, amended conditions of development consent also ordered
Legislation Cited: Environmental Planning and Assessment Act 1979, s 97
Land and Environment Court Act 1979, s 56A
North Sydney Development Control Plan 2013
North Sydney Local Environmental Plan 2013, cll 2.3, 2.5 and 6.7
Cases Cited: Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
Category: Principal judgment
Parties: North Sydney Council (Appellant)
North Sydney Leagues Club Ltd (Respondent)
Representation:
Counsel:
Mr T To, barrister (Appellant)
Mr C McEwen SC and Mr T March, barrister (Respondent)
Solicitors:
Sparke Helmore Lawyers (Appellant)
Dentons (Respondent)

File Number(s): 33609 of 2017
Publication restriction: No

TABLE OF CONTENTS

Introduction

This appeal
The grounds of appeal
The hearing
The statutory framework
The Club’s site
The Council’s contentions before the Commissioner
Consideration of the grounds of appeal
Introduction
Ground 1

Introduction

North Sydney Development Control Plan 2013

A “fair reading” of the Commissioner’s decision

Introduction

Car parking – contention (3)

Impacts on the amenity of residents south of Ridge Street – contention (4)

The proposed Plan of Management

Conclusion on consideration of amenity impacts

Contention 5(iii)

Conclusion on Ground 1

Ground 3
Introduction
The Council's complaint
The transcript basis for Ground 3
Conclusion on Ground 3
Ground 2
Remedying the denial of procedural fairness
Introduction
The Commissioner’s condition
The parties’ agreed revised condition
Conclusion on disposal of the proceedings

Conclusion
Costs
Orders

Annexure 1

Annexure 2

Judgment

Introduction

On 6 January 2017, Brown C upheld an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) by the North Sydney Leagues Club Ltd (the Club) (see North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002).
The Commissioner noted, in [1] of his judgment, that the appeal was against the refusal by North Sydney Council (the Council) of DA 78/16 for the internal refurbishment of the main clubhouse building and internal alterations to provide additional toilets, the continued use of part of the most northern bowling green (the Outdoor Area) and specify hours of operation and patron numbers for the North Sydney Bowling Club (the Club) at 50 Ridge Street North Sydney (the site).
This appeal particularly focuses on the elements of the Club's development application seeking consent for:

the use of portion of one of the Club’s three bowling green areas as an outdoor dining area; and

the regulation of hours and, at various times within the hours of operation, permitted patron numbers..

The development application had been made in circumstances where the Club had been undertaking the activities for which consent was sought without having approval for the use, resulting, as a consequence, in Class 4 civil enforcement proceedings being commenced in the Court to restrain the Club from carrying out this unapproved use. These Class 1 proceedings sought to regularise that use.
The Commissioner upheld the appeal and granted approval for the use, but did not do so to the full extent sought by the Club and in circumstances where the Council opposed the proposal on a range of grounds which had been set out in the Council's Statement of Facts and Contentions.

This appeal

The Council has appealed against the Commissioner’s decision. The appeal has been made pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). Such appeals are confined to questions of law. The relevant provision of the Court Act is in the following terms:

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners
(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.
(2)   On the hearing of an appeal under subsection (1), the Court shall:
(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or
(b)   make such other order in relation to the appeal as seems fit.

(3) …

It will, later, be necessary to consider the potential scope of operation of subcl 56A(2)(b).

The grounds of appeal

The Council has pleaded three grounds upon which it says the Commissioner’s decision is legally defective, warranting the matter to be remitted to the Commissioner for further consideration on what the Council says is the correct legal basis. The grounds pressed by the Council are:

That the Commissioner erred by failing to have regard to relevant provisions of the North Sydney Local Environmental Plan 2013 (the LEP) in circumstances where a proper construction of the LEP mandated that he do so;

The condition to which the Council takes exception was so unreasonable, in the circumstances, that that unreasonableness, in itself, gave rise to an error of law vitiating the Commissioner’s decision; and

In approving the proposed development to the extent that he had done so, the Commissioner had denied the Council procedural fairness by imposing, as one of the conditions attaching to the development consent granted as an outcome of the proceedings, a condition concerning patron numbers and the approved hours and method of operation in circumstances where the Council had been denied the opportunity to address the Commissioner on matters of detail on such a condition in circumstances where both the Council and the Club were led to believe that they would be given such an opportunity. If this complaint is established and constitutes a denial of procedural fairness in its context, such denial of procedural fairness constitutes an error of law, potentially vitiating the Commissioner’s decision.

Unsurprisingly, Mr McEwen SC, counsel for the Club, submitted that none of these grounds had been made out and that, as a consequence, the appeal should be dismissed.

The hearing

Both Mr To, counsel for the Council, and Mr McEwen provided me with written outlines of submissions prior to the hearing. As a consequence, the hearing was conducted efficiently and, even though (as later described) some time was allowed for discussions between the parties on one aspect potentially arising as a consequence of this decision, the hearing was concluded with me reserving my decision prior to the luncheon adjournment.

The statutory framework

I have earlier set out the terms of s 56A of the Court Act, the provision that provides the statutory basis for the Council's appeal. I have also noted the engagement, before the Commissioner, of a number of provisions of the LEP raised by the Council in the merit proceedings. It is now appropriate to set out the provisions of the LEP that arise for consideration. These are:

2.3   Zone objectives and Land Use Table
(1)   The Land Use Table at the end of this Part specifies for each zone:
(a)   the objectives for development, and
(b)   development that may be carried out without development consent, and
(c)   development that may be carried out only with development consent, and
(d) development that is prohibited.

(2)   The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
(3)   In the Land Use Table at the end of this Part:
(a)   a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b)   a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4) This clause is subject to the other provisions of this Plan.

2.5   Additional permitted uses for particular land
(1)   Development on particular land that is described or referred to in Schedule 1 may be carried out:
(a)   with development consent, or
(b)   if the Schedule so provides—without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.
(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.

Zone RE1   Public Recreation
1   Objectives of zone
●   To enable land to be used for public open space or recreational purposes.
●   To provide a range of recreational settings and activities and compatible land uses.
●   To protect and enhance the natural environment for recreational purposes.
●   To ensure sufficient public recreation areas are available for the benefit and use of residents of, and visitors to, North Sydney.
2   Permitted without consent
Environmental protection works
3   Permitted with consent
Building identification signs; Business identification signs; Community facilities; Environmental facilities; Information and education facilities; Kiosks; Recreation areas; Recreation facilities (outdoor); Restaurants or cafes; Roads; Water recreation structures
4   Prohibited
Any development not specified in item 2 or 3
6.7   Development in Zone RE1 or Zone RE2
(1)   This clause applies to land in the following zones:
(a)   Zone RE1 - Public Recreation,
(b)   Zone RE2 Private Recreation.

(2)   Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following:
(a)   the need for the proposed development on the land,
(b)   whether the proposed development is likely to have a detrimental impact on the existing or likely future use of the land,
(c)   whether the height and bulk of any proposed building or structure has regard to the existing vegetation and topography,
(d)   whether the proposed development will adversely impact on bushland and remnant bushland,
(e)   whether the proposed development will adversely impact on stormwater flow,
(f)   in the case of land in Zone RE1 - Public Recreation, whether the proposed development will significantly diminish public access to, and use of, that public recreation area.

(3)   Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:
(a)   the proposed development is consistent with the objectives of the zone of any adjacent land, and
(b)   the proposed development is not likely to result in any adverse impacts on development that is permissible on any adjacent land, and
(c)   the proposed development is consistent with the most restrictive development standards applying to any adjacent land in the following zones in relation to the height of buildings, floor space ratios and setbacks:
(i)   Zone R2 Low Density Residential,
(ii)   Zone R3 Medium Density Residential,
(iii)   Zone R4 High Density Residential,
(iv)   Zone B1 Neighbourhood Centre,
(v) Zone B3 Commercial Core,
(vi)   Zone B4 Mixed Use,
(vii)   Zone IN2 Light Industrial,
(viii)   Zone IN4 Working Waterfront,
(ix)   Zone E4 Environmental Living.

The Club’s site

The above provisions of the LEP become engaged as a consequence of the listing of the Club’s site that was the subject of the development application as one of the locations listed in Schedule 1 of the LEP, and thus having the beneficial and facultative terms of cl 2.5 of the LEP engaged. The Club’s site is listed at item 37 of the schedule, a listing in the following terms:

37   Use of certain land at 50 Ridge Street, North Sydney
(1)   This clause applies to land at St Leonards Park, 50 Ridge Street, North Sydney, being Lots 1104–1107, DP 46990.
(2)   Development for the purposes of a registered club and recreational facilities (indoor) is permitted with development consent.

The identified site is within the precinct of the significant parklands containing North Sydney Oval. These parklands are located in the south-western quadrant of the intersection of the Warringah Freeway and Falcon Street in the suburb of North Sydney. The area to the south of these parklands, across Ridge Street, is residential in character and is zoned R2 – Low Density Residential under the LEP. The site itself is within the RE1 – Public Recreation zone established by the Land Use Table of the LEP, a zone for which the relevant provisions of the LEP have been reproduced above.

The Council’s contentions before the Commissioner

The Council's Statement of Facts and Contentions was filed on 29 June 2016. It identified five contentions said to stand as impediments to the approval of the Club’s application. These contentions comprised, in summary, the following:

The proposed outdoor dining and bar area was not permissible in the RE1 - Public Recreation zone;

The proposed development was inconsistent with the objectives of the RE1 - Public Recreation zone (for a variety of reasons, not needing to be set out in detail);

Unacceptable parking impacts;

Unacceptable impacts on the amenity of nearby residential properties to the south; and

Approval of the proposed development would be contrary to the public interest.

First, it is appropriate to observe that, by their express reference to matters arising from the provisions relating to the RE1 - Public Recreation zone in the Land Use Table in the LEP, contentions (1) and (2) were necessarily excluded by subcl 2.5(2) from playing any part in the Commissioner’s consideration. They are similarly precluded in my consideration of this appeal.
Second, it is appropriate to note the full terms of contention (4) and the particulars provided in support of it. These are in the following terms:

(4)   The intensification of the use and substantial increase in patron capacity has adversely affected the amenity of surrounding residential properties due to noise impacts arising from amplified music, patrons on site, patrons off site when entering and leaving the premises, noise from patrons, and the vehicle movements when parking in surrounding streets.
Particulars
(i)   A number of detailed objections to the development application identified a range of noise impacts as a significant issue.
(ii)   A number of identified noise impacts are a direct result of the intensity of the development in terms of patron numbers and hours of operation, the inappropriate location of the use at the intensity proposed in relation to surrounding residential development, and the inability to control noise generated and antisocial behaviour by patrons who have left the premises, including both patron and vehicle noise.
(iii)   Appropriate Plans of Management should be a requirement for any licensed premises. They assist in setting a framework for staff to operate within. They set guidelines when additional staff are required to control patrons. Apart from requiring security at Ridge Street, the majority of the POM deals with the premises only.
(iv)   The POM is not the answer to allowing premises to operate beyond capacity. The premises need to be restricted to a patron level that does not impact on the surrounding area.

Finally, under the heading “Public Interest”, the Council pleaded three particulars in support of the proposition that the Club's proposed development would be contrary to the public interest. The first and second of these particulars, in effect, embraced such matters as were raised by resident objectors as coincided with contentions (1) to (4) pleaded by the Council. The third particular in support of contention (5) was in the following terms:

(iii) The land is Crown land. When the carpark was transferred to the club in 1984, the Gov Gazette (10/2/1984) stated that the purpose of the special lease is to be altered to “Recreation Bowling Greens, Buildings (Clubhouse and Garaged) and Car Park”. This description does not lend itself to include a large paved outdoor dining area/beer garden in lieu of a Recreation Bowling Green. It is also noted that the Leagues Club Agreement dated 19 November 1991, the Leagues Club warranted under Clause 2(d)(iii) to maintain three bowling greens and surrounds in prime condition as championship greens.

Consideration of the grounds of appeal

Introduction

I address Ground 1 first. It is, however, convenient later to deal with the Council's second and third grounds in reverse order, for reasons that will be obvious from my discussion of Ground 3.

Ground 1

Introduction

The Council's position is that, although cl 2.5 of the LEP is facultative and beneficial, a proper reading of subcl 2.5(2) does not act to oust consideration of matters contended by the Council as arising from subcll 6.7(2) and (3) of the LEP being required to be considered as significant elements in the assessment of the Club’s proposed development.
Mr To took me to a passage in the Commissioner’s decision, at [69], where the Commissioner said:

(69) I agree with the submissions of Mr McEwen on this matter. The Court is bound by the words in cl 2.5 and the words in cl 2.5(2) that this “clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan” are clear and unambiguous. The Court is not obliged to have regard to the objectives of the RE1 zone when determining the development application or any other matter in cl 6.7 of LEP 2013; being a “provision of this Plan”.

Before turning to the role of cl 6.7, it is also pertinent for my later discussion to note what the Commissioner observed, in [70] where he said:

(70) While Mr To sought to address the consequences of not applying the provisions of cl 6.7; this is not a matter that goes to the application of cl 2.5(2) in the circumstances in this case. In any event, the merits of the application must be considered through s 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), such as “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality” (s 79C(1)(b)), even though through s 79C(1) provides less specific criteria than provided by cl 6.7 of LEP 2013.

Mr To submitted to me that the express disavowal by the Commissioner of consideration of cl 6.7 of the LEP, despite what the Council had said was its non-exclusion by the operation of subcl 2.5(2) of the LEP, meant that the Commissioner had failed to take into account relevant matters pleaded by the Council in circumstances where he was mandated to do so.
On the other hand, Mr McEwen advanced two bases upon which he said that this ground should be rejected. First, he submitted that a proper construction of subcl 2.5(2) required that operative work needed to be given to the words “or other provision of this Plan”. Doing so, he submitted, on their proper application, meant cl 6.7 of the LEP was excluded from consideration concerning the Club’s application.
In the alternative, he submitted that, if I were to reject this interpretation of the interrelationship between the provisions of the LEP, a “fair reading” of the Commissioner’s decision demonstrated that, despite the Commissioner’s disavowal, he had in fact engaged with the matters raised, relevantly, by the Council concerning cl 6.7 as part of his more general merit assessment of the Club’s proposed development. This general assessment arose by virtue of the operation of s 79C of the EP&A Act.
To engage appropriately with the matters raised by the parties concerning Ground 1, it is necessary to have regard to a number of passages contained in the Commissioner’s decision. I observe that, in doing so, it is long‑established that Commissioners’ decisions are not to be analysed by going through them with a fine-toothed comb (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367).
To resolve the dispute on this point, it is necessary to consider how the concluding element of subcl 2.5(2) is to be interpreted. Removing the exclusion of the Land Use Table reference for this analysis, subcl 2.5(2) of the LEP reads:

(2) This clause has effect despite anything to the contrary in … [any] other provision of this Plan.

The approach advocated by Mr McEwen before the Commissioner can be seen from the Commissioner’s decision at [69], quoted above.
Mr McEwen's submissions (both written and oral) before me supported and reinforced what he said was the correctness of the Commissioner’s approach.
On the other hand, the Commissioner’s analysis of the countervailing position put to him by Mr To can be understood from [60] to [63] of the Commissioner’s decision:

(60)   Mr To rejects the applicants submission that cl 6.7 does not apply, because it is overridden by clause 2.5(2) and the concluding words of the subclause. The function of cl 2.5 is to define additional permitted purposes of development, in addition to what the LEP 2013 otherwise permits through cl 2.3 and the Land Use Table. The concluding words in cl 2.5(2) have work to do, and recognise that the Land Use Table has no operative effect on its own, but is given force because of cl 2.3(1).
(61)   Further, the consequence of the Applicant's interpretation is that whenever an additional permitted purpose of development is allowed, it means that all other provisions of LEP 2013 have no force or effect. This would be a highly surprising result that has no planning rationale.
(62)   The Applicant's construction also flies in the face of the express aims and objectives of LEP 2013, relevantly cl 1.2(2)(a), (b)(ii) and (d)(ii) - all of which are expressly directed to protecting and enhancing amenity and in particular residential amenity. Such a construction, which would avoid the consistency test in cl 6.7(3)(a), does not promote the objectives of LEP 2013.
(63) In construing LEP 2013, a construction which promotes the objectives of the LEP must be preferred (ss 5(6) and 33 of the Interpretation Act 1987). The proposed use is to increase the ordinary patronage to up to 600 persons daily and 900 on special occasions. The evidence demonstrates that such levels will result in much higher parking demand arising from the use and there is insufficient parking in the vicinity, but particularly in the closest residential streets to accommodate such demand. The inevitable corollary of such demand is increased traffic in the streets, circulation by cars attempting to find parking, additional manoeuvres as cars are unable to find close parking, and conflicts graphically described by the objectors. Such evidence, which was not challenged, shows that there were, and continue to be amenity impacts including in 2016. Given that they occur at patronage levels far less than the level for which consent is now sought, this should lead the Court to not be satisfied that the development is consistent with 'achieving and maintaining a high level of residential amenity'.

In summary, before me, Mr To put the position that there were other provisions of the LEP to which the second limb of subcl 2.5(2) would apply, but that it did not apply to cl 6.7. The types of provision which he submitted would be set aside by subcl 2.5(2) for the purposes of facilitating development at sites listed in Schedule 1 of the LEP were provisions which would otherwise be regarded as prohibitory and were ones such as:

Clause 5.1A – Development on land intended to be acquired for public purposes; or

Clause 6.9 – Limited development on foreshore area.

Mr To did not submit that this was an exhaustive identification of excluded provisions – merely a sample for the purpose of explaining his submission on this point.
In this context, it is necessary to return to consider the language of cl 6.7 of the LEP. As I put to Mr To during the course the hearing, although subcl 6.7(2) is framed in terms that merely mandate the Council to consider matters called up by this subclause, the language of subcl 6.7(3), by using the introductory words:

Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:

was prohibitory in flavour and should, therefore, potentially, be regarded as falling within this second exclusionary element of subcl 2.5(2), even if subcl 6.3(2) might not be so regarded.

As I understood Mr To's response, it was that this was not an appropriate way to approach cl 6.7 because subcl 6.7(3) was not prohibitory in the fashion he contended was necessary for the engagement of the second element of subcl 2.5(2).
However, looked at in this fashion and taking the case as advanced by Mr McEwen at its highest, the second element of subcl 2.5(2) could only exclude the requirement for the Commissioner to address relevant elements of subcl 6.7(3). Consideration of the relevant elements of subcl 6.7(2) would not be so excluded as this provision could not be regarded as prohibitory in nature. It therefore follows, it seems to me, even on the basis of the case advanced for the Club taken at its highest, the Commissioner was led into error by his stating in [69] that he had adopted Mr McEwen's submission that subcl 2.5(2) excluded, in its entirety, the necessity to address cl 6.7 of the LEP.
However, that is not the end of the matter. As I have earlier noted, Mr McEwen submitted that, despite the Commissioner’s disavowal of the applicability of cl 6.7, nonetheless a “fair reading” of the Commissioner’s decision demonstrates that under the rubric of the Commissioner’s more general merit assessment, he had, in fact, addressed the matters of concern to the Council arising from cl 6.7 and had, relevantly, considered them appropriately (subcl 6.7(2)) or achieved the necessary degree of satisfaction (subcl 6.7(3)) so that these provisions did not act as a barrier to his overall conclusion concerning the Club’s development proposal.

North Sydney Development Control Plan 2013

Before commencing any analysis of the Commissioner’s decision, it is appropriate to note that, despite his disavowal of consideration of cl 6.7 of the LEP, the Commissioner’s analysis of matters he considered that he needed to address included extensive consideration of relevant provisions of the North Sydney Development Control Plan 2013 (the DCP). As is the conventional position with development control plans, the DCP’s provisions comprise a much more fine-grained planning regime than the broader structure provided by the LEP, which is based on the Standard Instrument Template. The DCP is a much lengthier document than the LEP and reflects the fleshing out, by the setting of objectives and controls, of the Council's more detailed and nuanced prescriptions for land use planning in its local government area.
As consequence, although the DCP does not expressly use the precise terms of the relevant portions of cl 6.7 of the LEP, nonetheless, it is clear from the Commissioner’s consideration of a wide range of elements of the DCP that he has taken into account (in his conventional merit assessment) those elements of the DCP reflective of the provisions of cl 6.7 of the LEP pressed by the Council before me as being the foundation for its concern arising from the Commissioner’s conclusion as to the sweeping operation of the general exclusionary provision at the conclusion of subcl 2.5(2) of the LEP.

A “fair reading” of the Commissioner’s decision

Introduction

I therefore turn to consider the Commissioner’s decision in detail, relevantly, to ascertain whether or not, on such a “fair reading” basis, the conclusion could be drawn that he had, by implication, actually considered and dealt with relevant matters called up by subcll 6.7(2) and (3) and pressed by the Council.
Addressing this requires consideration of whether or not, despite the Commissioner’s express disavowal of the relevance of cl 6.7 of the LEP, his merit assessment, in fact, on a “fair reading” of his decision, is disclosed as having addressed the elements of cl 6.7 that the Council contended were engaged and pleaded as contentions (3), (4) and (5)(iii) in the Council’s Statement of Facts and Contentions.

Car parking – contention (3)

I have earlier set out those contentions of the Council which remained for the Commissioner’s consideration. Those arising from contention (4) are dealt with below. I here, first, consider contention (3) relating to car parking.
In his s 79C assessment, the Commissioner set out, between [71] and [83], a detailed summary of the expert evidence given by Mr Chris Hallam, for the Council, and Mr Craig McLaren, for the Applicant. As the Commissioner observed, “Both are experienced traffic engineers”.
Between [84] and [89], the Commissioner made findings based on this evidence. He did so by having regard to the relevant provisions of the DCP, as well as to the expert evidence. The Commissioner’s conclusions on this contention were:

(87) For these reasons, I do not accept that it can be reasonably argued that the absence of sufficient parking on-site and the potential use of adjoining streets for parking is a valid reason to refuse the application.
(88) Notwithstanding the comments in the preceding paragraphs, I am satisfied that, in most events at the Club, there is reasonable on-street parking availability in the streets surrounding the site, based on the surveys of the kerb side parking available, including any time restrictions, with the adjustments to the surveys accepted by Mr Hallam that on-street parking spaces with a maximum parking limit of 1 hour should be excluded from the calculation of available on-street parking.

There is no fault in the Commissioner’s consideration of this contention (whether or not cl 6.7 should or should not have been engaged by being referred to in this assessment).

Impacts on the amenity of residents south of Ridge Street – contention (4)

The relevant portions of the Commissioner’s decision canvassing the competing submissions on amenity are contained in [90] to [105] of his decision. The Commissioner comprehensively analysed the evidence of the two expert town planners (Mr Mossemenear, for the Council, and Mr Lidis, for the Club) and addressed the submissions made by counsel concerning this issue. It is unnecessary to set out in full these paragraphs of the Commissioner’s decision analysing these submissions.
Having done so, the Commissioner then set out his conclusions on this aspect of the matters in dispute between the parties. He set out his findings on amenity impacts, at [106] to [125], in the following terms:

Findings
106 Clause 7 of DCP 2013 addresses Late Night Trading Hours. The Introduction at cl 7.1 states, in part:
Late night trading premises can positively contribute to the character of an area through increased vitality and vibrancy of the urban environment outside of normal business hours. Conversely, the operation of such premises and associated actions of patrons also has the potential to adversely impact upon the amenity of nearby residential or other sensitive land uses.
This section of the DCP aims to assist in the management of impacts from the operation of late night trading premises on the sites and neighbourhoods in which they are located and in particular, to protect the amenity of local residents. This is to be primarily achieved through restricting trading hours dependent upon a premises location and promoting ongoing good management practices.

107   Clause 7.1.2 applies to all development applications for non-residential uses seeking to operation wholly or in part for trading hours between 8pm and 7am that involve refurbishment, additions or extensions that will result in an intensification of an existing use (cl 7.1.2(d)).
108   Clause 7.2 identifies the matters that are to be considered when determining operating hours. These are:
(a)   the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises;
(b)   the specific nature of the premises (e.g. pub, nightclub, restaurant etc) and the proposed hours of operation;
(c)   the existing hours of operation of surrounding businesses;
(d)   the size and patron capacity of the premises;
(e)   the availability of amenities provided to premises;
(f)   the impact of the premises on the mix, diversity and possible concentration, of late night uses in the locality;
(g)   the likely operation of the proposal during day time hours;
(h) submission of a Plan of Management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain;
(i)   the diversity of retail services within an area and the impact of a late night proposal on this diversity;
(j)   measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises;
(k)   the accessibility and frequency of public transport during late night trading hours.
P2 Consideration of all of these factors provides the basis for a consistent approach to the determination of appropriate trading hours and creates greater certainty both for the community and proponents of late night trading premises.
P3 Once these factors are taken into consideration late night trading hours may be permitted in appropriate circumstances, particularly in areas of North Sydney that already exhibit or have an emerging vibrant night-time character, as opposed to parts of the LGA that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage.

109 Clause 7.3.1 addresses maximum trading hours and states:
Maximum allowable trading hours have been established that are considered to represent the desired late night trading character for each zone identified in the subsection. The clause states that a development application for late night trading will only be granted the maximum trading hours where an application can demonstrate the use of the premises during these hours will satisfy all provisions within this DCP Section and result in acceptable impacts upon the surrounding locality.
Many of these late night trading areas directly adjoin residential zones. The impacts of late night premises within these interface areas must be carefully considered. In addition, many late night premises are located within mixed use buildings where residences are located directly above. Where these impacts cannot be reasonably addressed, these sites may be granted trading hours less than the maximum hours set out within the table.
Council will consider the extension of trading hours within the North Sydney CBD up to 24 hour trading but only where the uses are suitable for the locality. These uses will be subject to on-going trial periods with the maximum 5 year trial period permitted. This will enable monitoring of premises within the CBD to ensure these uses do not detract from the character of the area.

110   The objectives for trading hours are:
O1   To ensure that trading hours are consistent with the desired character of each zone.
O2   To minimise adverse amenity impacts on nearby residents.
O3   To encourage a vibrant late night economy within North Sydney.
O4   To ensure a reasonable balance is achieved between late night uses and residential amenity.
O5   To ensure that residential zones located within the interface to late night trading areas are reasonably protected.
O6   To minimise amenity impacts resulting from parking and traffic caused by late night uses.

111 The maximum trading hours are shown in Table B-7.1 but address only the specific B3 Commercial Core zone, the B4 Mixed Use zone and the B4 Mixed Use zone. Understandably, the RE1 - Public Recreation zone is not specifically addressed within Table B-7 however the site would fall within “All other zones” in Table B-7.1 where the maximum hours are 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week. The most generous trading hours are in the B3 Commercial Core zone where the maximum hours are 6am to midnight (indoor) and 7am to 11pm (outdoor), 7 days per week.
112 Further, cl 7.3.2 addresses Trial Periods and cl 7.4 provides requirements for Premises Management Checklists and Plans of Management.
113 In considering the outstanding matters of hours of operation, patron numbers and the trial period, DCP 2013 provides some direction. Late night trading is said to positively contribute to the character of an area through increased vitality and vibrancy of the urban environment outside of normal business hours but has the potential to adversely impact upon the amenity of nearby residential or other sensitive land uses (cl 7.1). Table B-7 suggests that the maximum hours are 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week for the zones not identified in the table. I accept that these hours should not be seen as an automatic entitlement but subject to the considerations elsewhere in cl 7 and the general considerations in s 79C(1) of the Environmental Planning and Assessment Act 1979. DCP 2013 also acknowledges that a PoM and trial periods are a valid method to address potential amenity impacts (cl 7.4). DCP 2013 does not guarantee that there will be no impacts from late night trading but only that adverse amenity impacts are “minimised” (O2), a “reasonable balance” is achieved between late night uses and residential amenity (O4) and residential zones located within the interface to late night trading areas are “reasonably protected” (O5).

114   In this context, I propose to adopt some of the trading hours and patronage numbers sought by the Applicant, but not all, for a number of reasons.
Operating times
115   Table B-7 provides for maximum hours of 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week for the site. The council sought an opening time of 8am however Mr Mossemenear accepted that a 7am opening time would cause no impact and this time would be reasonable, in the circumstances. The Applicant seeks to extend the opening hours from 10pm to midnight (indoors) and from 8pm to 10pm (outdoors) but with a trial period between 9pm and 10pm for the Outdoor Area. The council’s condition of consent (condition I1) proposes 8am to 12 midnight trading on Monday to Saturday and 10am to 10pm on Sunday but the Outdoor Area can only be used until 9pm (condition I11).
116   The difference between the trading hours sought by the Applicant and those sought by the council in their conditions is not significant in the evenings and I propose to adopt the following trading hours:
●   7am to 12 midnight, Monday to Saturday
●   7am to 10pm Sunday.
●   trial period for Outdoor Area between 9pm and 10pm, 7days.
●   7am to 2am on the following day for special events days.

117   I am satisfied that the departure from the trading hours in Table B-7 can be justified in this case because:
●   the Club and external areas are relatively isolated from any residential properties,
●   it was agreed that the acoustic environment in the Clubhouse can be controlled,
●   any potential source of noise in the Outdoor Area is to be subject to a trial period between 9pm and 10pm, and
●   the PoM was considered acceptable to the council.

Patronage levels
118   Clause 7 of DCP 2013 understandably provides no guidance on maximum patronage levels given that the number would be dependent on the area of the site in question. The Applicant proposes 600 patrons up to 10pm, 7 days per week with a trial period for 600 patron between 9pm and 10pm, 400 patrons between 10pm and midnight and 900 patrons on special event days.
119   The council seeks a maximum of 350 patrons on the premises with no more than 150 patrons of the maximum 350 patrons using the Outdoor Area between 6pm and 9pm for dining only.
120   It was agreed that the Liquor Licence has no maximum patron numbers and while Mr Lidis and Mr Mossemenear disagreed on the potential patronage, it was generally accepted that one patron would occupy around 1 sq m. Based on this relationship; the Clubhouse could accommodate around 400 patrons, the existing approved northern outdoor seating area can accommodate around 100 patrons, the Outdoor Area can accommodate around 250 people and 300 bowlers can use the greens for a total of 1150 patrons although I accept that this is an unlikely scenario.. It was also accepted that a higher patronage level could be achieved by the removal of seating from the Outdoor Area and the northern outdoor seating area.
121   The number of patrons have the potential to create unacceptable amenity impacts. While the Clubhouse is relatively isolated from any residential properties, the potential amenity impacts arise from patrons leaving the Club, particularly late at night. The Court heard from a number of residents and watched recordings of anti-social behaviour. The evidence however suggested that the type of anti- social behaviour experienced by the local residents had diminished through different management at the Club and more effective use of security staff. The PoM and 12 month trial are important measures to ensure that any impacts on local residents are minimised, as is the phased shutdown, suggested by Mr Lidis. The suitability and effectiveness of these measures needs to be tested through the 12 month trial period. In my view, the 12 month trial should be extended to period between 10pm and midnight where a maximum of 400 patrons is proposed. This would also include the identified special event days. I also propose to limit the number of patrons of the Outdoor Area to 250 patrons and contrary to the position of the council; no restriction is to be placed on this area for dining only, for the trial period.
122   I am satisfied that the following proposed hours and maximum patron numbers are appropriate:
●   a maximum 600 patrons between 7am and 10pm 7 days per week, with the 600 patron limit between 9pm and 10pm being for a 12 month trial,
●   a maximum 400 patrons between 10pm and midnight 7 days per week but with a 12 month trial.
●   for special event days, a maximum 900 patrons until 10pm and a maximum 400 patrons between 10pm and 2am, 7 days per week but with a 12 month trial.

123   I am satisfied that the departure from the patron numbers proposed by the council can be justified in this case because:
●   the opportunity exists with the 12 month trial period to fully address any impacts associated with the late night use of the Club,
●   there has been minimal complaint to the Club, the Police or the council over the last 12 months and on 25 April 2016 there were approximately 890 patrons at the Club and there is no evidence that this number of patrons caused any unreasonable adverse impact, and
●   the PoM and 12 month trial are legitimate measures identified in DCP 2013 so that potential impacts on local residents are minimised.

124   I do not accept the number of special event days suggested by the Applicant is appropriate at this time. Seven days are excessive given the 2am closing time and the potential 900 patrons. In my view, the special event days should be limited to New Year's Eve, at this stage. Celebrations for Anzac Day could reasonably be expected to fit within the normal operating hours, with the trial period although the 7am opening time should be deleted given the Dawn Service on Anzac Day. Depending on the results of the 12 month trial period, additional special event days may be considered.
125   Based on these findings, the following condition is to be imposed:
Hours of operation/patron numbers
The normal hours of operation and maximum patron numbers are:
●   7am to 12 midnight, Monday to Saturday.
●   7am to 10pm, Sunday.
●   the Outdoor Area is to cease use at 9pm, 7days per week.
●   a maximum of 600 patrons between 7am and 9pm, 7 days per week.
●   a maximum 400 patrons between 9pm and midnight, Monday to Saturday and 9pm to 10pm Sundays.
●   a maximum 900 patrons for special event days, from 7am to midnight, 7 days per week irrespective of the other normal hours of operation and maximum patron numbers.
●   Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.

Except as amended or restricted by the following:
●   the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7days for a 12 month trial period,
●   the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,
●   the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.
●   the Club may operate for special event days with a maximum 900 patrons until midnight and a maximum 400 patrons between midnight and 2am the following day, irrespective of the other normal hours of operation and maximum patron numbers, 7 days per week for a 12 month trial period.

Definitions
“Outdoor Area” is the area of the most northerly bowing green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.
“Special event days” are New Year’s Eve.
“Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.

The proposed Plan of Management

The Commissioner dealt with Mr Lidis’ evidence concerning the proposed Plan of Management and its role at [95] to [97]. In [103], the Commissioner wrote:

(103) Mr McEwen submits that Mr Mossemenear and Mr Lidis agreed that the PoM was appropriate by reference to the 8-point test articulated in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315. Mr McEwen also submits that that the level of objection was low for this type of application. The Police objection confirmed that noise and disturbance could be addressed by conditions which the Applicant generally accepts. There has been minimal complaint to the Club, the Police or the council over the last 12 months and no cause for Police to attend the club since 25 April 2016. This was a general check and not in response to a complaint. On that day there were approximately 890 patrons and there is no evidence that this number of patrons caused any unreasonable adverse impact. It must be assumed that the minimal disturbance is due to pro-active management.

In [113], the Commissioner observed:

(113) DCP 2013 also acknowledges that a PoM and trial periods are a valid method to address potential amenity impacts (cl 7.4). DCP 2013 does not guarantee that there will be no impacts from late night trading but only that adverse amenity impacts are “minimised” (O2), a “reasonable balance” is achieved between late night uses and residential amenity (O4) and residential zones located within the interface to late night trading areas are “reasonably protected” (O5).

It is to be noted that the Commissioner found no general fault with the proposed Plan of Management. Condition I5 incorporates it into the conditions of development consent except “Section 2.2 (hours) and Section 2.3 (capacity) and where otherwise amended by the conditions of this consent”. This approach is consistent with the Court’s Planning Principle set out in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315, as amplified in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247.
I am satisfied that these portions of the Commissioner’s judgment demonstrate that he paid adequate and appropriate attention to relevant aspects of the particulars pleaded in contention (4) requiring to be considered in a Plan of Management context.

Conclusion on consideration of amenity impacts

It is clear, on a “fair reading” of the material set out in the Commissioner’s reasons disclosing the basis of the case he was considering on amenity impacts on the residential area south of Ridge Street (the relevant matters arising from subcll 6.7(3)(a) and (b) as advanced for the Council) and his analysis and conclusions on this topic, that the Commissioner has encompassed appropriately the issues thus arising despite having disavowed the applicability of cl 6.7 of the LEP.

Contention 5(iii)

A close examination of the transcript of the three days of hearing before the Commissioner shows that this aspect of the public interest in contention 5(iii) (set out at [17] above) was little discussed during the course of the hearing.
The first mention of this matter arises on page 14 of the transcript of the first day of the hearing before the Commissioner. The transcript notes Mr To drawing to the Commissioner's attention what he describes as the “Leagues Club Agreement”. In response to this, there is an exchange between Mr McEwen and Mr To which, to a considerable extent, crystallises that which is involved in this contention. The exchange (Transcript 28 September 2016, page 14, line 40 to page 15, line 18) was in the following terms:

MCEWEN: Commissioner, may I again, just for assistance, I am not sure what issue arises out of that, given that this is a document, a private document, I say that in the contractual sense of the word, between North Sydney League’s Club Ltd and North Sydney Bowling club Limited. Is the council’s concern that the agreement is to be altered, in which case we’re not sure why the Council would have a problem with that, or is it some other matter.
TO: Well, as I indicated earlier this is land, Crown land, that has been given over to the benefit of a club, pursuant to a special lease for bowling purposes. When this bowling club then amalgamated with the North Sydney League’s Club, the present Applicant, part of the arrangement, no doubt, for the benefit of the club but reflecting the public use of land, was to maintain three championship greens. Plainly what has been done by the Applicant is not consistent with that and it’s an element of the public interest that the use of public land has gone in this fashion. It’s not – as you heard it’s concerning some of the residents but it is a public interest concern even if the residents hadn’t raised it.
MCEWEN: Commissioner, but can I just – sorry to interrupt, I just want to try to get these points clear, as to what the council concern is and as the council’s aware, in exhibit A is owner’s consent document from the Crown, granting land owner’s consent for the lodgement of an application, which, apart from referring to internal alterations and part conversion of existing storerooms, gives owner’s consent for the continued use of the existing outdoor dining and bar area located on part of the northern bowling green. So the Crown doesn’t oppose it, the League’s Club and the bowling club don’t oppose it. We’ll have to address it in submissions, but I’m not sure why, therefore, the council could oppose it. Put in simple terms, they can’t make us use it as a bowling green.
TO: …(not transcribable)… closing submissions.

In Mr To’s written submissions (dated 30 September 2016) handed up to the Commissioner at the commencement of the Council’s closing submissions, Mr To wrote:

(48) There is also the issue of use of public land – for which a lease was granted for particular purposes, i.e. bowling. As the residents made clear, if the use (of the outdoor area and northern green) is now not for that purpose it should be returned to the public. The consent of the Crown to the lodgement of the development application is, at best, a neutral factor. It is not unusual for a public authority to provide owner’s consent to facilitate consideration of a proposal on its merits – provision of that consent does not necessarily signify support for the merits.

During Mr To’s closing oral submissions (submissions which ran from page 160, line 41 of the transcript to page 172, line 46), he did not advert further to this matter.
Mr McEwen’s earlier comments (the transcript material set out at [52] above) appropriately responded to this aspect of the Council’s contentions.
Although pleaded as a matter of the public interest, I am left with the impression that this issue was but faintly pressed by the Council. Indeed, given that there was no basis put before the Commissioner that contention (5)(iii) placed some hurdle of permissibility to approval of the Club's application, and the fact that it was not strongly pressed on any merit basis for the Council, it is unsurprising that the Commissioner felt no need to deal with the contention further than his oblique reference to it in the second sentence of [92] in his decision.
Although I have dealt with contention (5)(iii) for completeness, there is no basis why it should found any complaint about the Commissioner’s reasoning and his overall consideration of the issues genuinely in dispute between the parties.

Conclusion on Ground 1

Ground 1 therefore fails.

Ground 3

Introduction

I have set out above, in my consideration of Ground 1, the relevant elements of the Commissioner’s decision that led to his imposition of condition I1 as one of the conditions of development consent. His discussion of this was set out in [122] to [125] of his decision (set out above). As earlier noted, condition I1 contains elements concerning hours of operation of the Club and as to the permitted number of patrons at the Club, together with matters relating to their management and dispersal, at various hours, in order to address what might otherwise be unacceptable impacts of those residing in the area zoned R2 to the south of Ridge Street.

The Council's complaint

As earlier noted, Ground 3 claims that the Commissioner had denied the Council procedural fairness by imposing, as one of the conditions attaching to the development consent he granted, condition I1 – a condition concerning the approved hours of operation and patron numbers – in circumstances where the Council was led to believe that they would be given an opportunity to address the Commissioner on matters of detail on such a condition.
The Council’s specific complaint was that, by his formulation and imposition of condition I1 relating to the special event provision applying to New Year's Eve functions at the Club, the Commissioner had denied the Club procedural fairness.
I need to consider this complaint in circumstances where the Commissioner’s decision discloses (for example at [63], [97] and [101]) that any condition dealing with patron numbers and their management, together with proposed special event days, was a matter of direct and particular contest before the Commissioner.

The transcript basis for Ground 3

Mr To submits that an examination of the transcript of the proceedings before the Commissioner makes it clear that the Council (and the Club) had been given the clear understanding by the Commissioner that, were he to conclude that it was appropriate to approve the Club’s proposed development (whether to the full extent sought or not being immaterial, Mr To submitted by necessary implication), the Commissioner had given the parties a well‑founded expectation that his decision would merely incorporate findings on such matters.
The transcript of the closing submissions on the third day of the hearing before the Commissioner discloses that both Mr McEwen and Mr To adopted the proposition that the appropriate course (if the outcome were to be favourable to the Club in whole or in part) was that matters of detail to determine the appropriate conditions to be attached to any development consent would be arrived at on a subsequent occasion.
A proper reading of the transcript on this point discloses that this was proposed by both parties as the appropriate process to be undertaken.
During the course of his closing submissions (Transcript 30 September 2016, page 140, lines 23 to 28), Mr McEwen said:

The conditions which you have in evidence do not deal with all the matters which have come through from the hearing. We would submit that if the application finds favour with you, you would make findings and give the parties the opportunity to adjust conditions and, indeed, amend the plan of management to be consistent with your findings, if that's a convenient way for the court to proceed.
Commissioner: Yes
McEwen: it also allows the court to supervise or superintend the final outcome.

In his final closing submissions, Mr To said, on this point (Transcript 30 September 2016, page 172, lines 30 to 34):

As a general proposition I don't have a difficulty with the suggestion of my learned friend that if findings are made then – and if those findings are such that we need to consider conditions, we can do it at that point. There is no issue that the condition about staged shutdown starting at 6 PM needs to be in there.

Conclusion on Ground 3

It was not unreasonable for the parties to assume, from the Commissioner’s agreement with Mr McEwen and, subsequently, Mr To’s endorsement of the proposed process, that further consideration of conditions of consent would follow from any findings favourable to the Club.
It is clear from these transcript extracts that both parties held the reasonable expectation that the Commissioner would, in fact, make findings of principle concerning matters such as were subsequently dealt with in the relevant detail of condition I1, and that the parties would have a subsequent opportunity to address on what was the appropriate detail to be included (if the parties were, by necessary implication, unable to reach agreement on such matters). The Council submitted that, by dealing with the matter in the specifically determinative fashion that had arisen, the Council had been denied procedural fairness.

However, by going beyond this and making conclusive and specific determinations on these aspects of the proposed development, and incorporating those, relevantly, in condition I1, the Commissioner denied the parties the opportunity to be heard on what would be the appropriate detail to be incorporated in the conditions of consent in the event the Commissioner considered that provision should be made for special events.
That the Commissioner followed this course contrary to the approach adopted by the parties, and impliedly agreed to by him in his response to Mr McEwen, did constitute a denial of procedural fairness to the Council in this respect.
As this was one of the matters appropriate to be regarded as fundamental to one of the Council's pleaded contentions (contention (4)), it follows that Ground 3 succeeds.

Ground 2

Given that I have concluded that there is no general basis upon which I should conclude that the Commissioner’s decision was vitiated and should be remitted to him, but that the Council did succeed on Ground 3 (its procedural fairness ground – a ground to be resolved in the fashion described below), it is unnecessary for me to determine whether or not the Commissioner’s decision with respect to the contested elements of condition I1 suffered from unreasonableness, in the fashion discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63, and thus requiring to be set aside on that basis. This is because resolution of matters arising from Ground 2 are also dealt with by the resolution of those arising under Ground 3.

Remedying the denial of procedural fairness

Introduction

During the course of Mr To’s opening submissions, I raised with him and Mr McEwen the possibility of my utilisation of subs 56A(2)(b) to resolve the outcome of the appeal, if I were to conclude that Ground 1 failed but Ground 2 and/or Ground 3 succeeded. I enquired as to whether it was possible that the parties might be able to agree on what would be an appropriate form of a revised condition I1 that could be substituted for the condition imposed by the Commissioner by me using subs 56A(2)(b) to do so.
Upon resumption after taking the morning adjournment early in order to provide Mr To and Mr McEwen with an opportunity to obtain instructions on this proposition, they advised me that such a course was potentially appropriate if the appeal outcomes fell in that fashion and that they had commenced discussing what might be an appropriate revised condition I1. I therefore adjourned for a further period of time to permit those discussions to continue.
At the conclusion of those discussions, I was advised that agreement had been reached on what would be a mutually acceptable revision of the condition, in the event that it arose for consideration in the outcome of the appeal.

The Commissioner’s condition

To understand the nature of that revision, it is appropriate to set out, first, the terms of condition I1, as imposed by the Commissioner. This condition read:

I1.   The normal hours of operation and maximum patron numbers are:
●   7am to 12 midnight, Monday to Saturday.
●   7am to 10pm, Sunday.
●   7am to 2am on the following day for special events days.
●   the Outdoor Area is to cease use at 9pm.
●   a maximum of 600 patrons between 7am and 9pm, 7 days per week.
●   a maximum 400 patrons between 9pm and midnight for the Club, Monday to Saturday and 9pm to 10pm Sundays.
●   a maximum 900 patrons for special event days until midnight, irrespective of the other normal hours of operation and maximum patron numbers, 7 days per week.
●   Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.
Except as amended or restricted by the following:
●   the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7days for a 12 month trial period,
●   the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,
●   the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.
●   the Club may operate for special event days with a maximum 900 patrons until midnight and a maximum 400 patrons between midnight and 2am the following day, irrespective of the other normal hours of operation and maximum patron numbers, 7 days per week for a 12 month trial period.
Definitions
“Outdoor Area” is the area of the most northerly bowing green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.
“Special event days” are New Year’s Eve.
“Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. (see conditions I12 to I17). The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.
Upon expiry of the permitted hours, including trial period hours:
(a)   all restaurant service (and entertainment) must immediately cease;
(b)   no person shall be permitted entry; and
(c)   patrons on the premises must leave within the following 15 minutes of any change to the number of patrons required by the conditions of consent, including the trial period requirements..
(Reason: to ensure that amenity of the surrounding locality is maintained and hours of operation are consistent with those in surrounding locality)

The parties’ agreed revised condition

The revised version agreed to by the parties is reproduced below:

I1.   The normal hours of operation and maximum patron numbers are:
●   7am to 12 midnight, Monday to Saturday.
●   7am to 10pm, Sunday.
●   the Outdoor Area is to cease use at 9pm.
●   a maximum of 600 patrons between 7am and 9pm, 7 days per week.
●   a maximum 400 patrons between 9pm and midnight for the Club, Monday to Saturday and 9pm to 10pm Sundays.
●   Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.
Except as amended or restricted by the following:
●   the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7 days for a 12 month trial period,
●   the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,
●   the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.
●   the Club may operate for special event days in accordance with the following table:

Special Event Days (Not the Trial Period)

Special Event Days (Trial Period)

A maximum of 900 patrons until 9.30pm

A maximum of 900 patrons until 10pm

A maximum of 600 patrons between 9.30pm and 12.30am (the following day)

A maximum of 600 patrons between 10pm and 12.30am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

Definitions
●   “Outdoor Area” is the area of the most northerly bowling green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.
●   “Special event days” are New Year’s Eve.
●   “Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. (see conditions I12 to I17). The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.
Upon expiry of the permitted hours, including trial period hours:
(a)   all restaurant service (and entertainment) must immediately cease;
(b)   no person shall be permitted entry; and
(c)   patrons on the premises must leave within the following 15 minutes of any change to the number of patrons required by the conditions of consent, including the trial period requirements.
(Reason:    To ensure that amenity of the surrounding locality is maintained and hours of operation are consistent with those in surrounding locality.)

Conclusion on disposal of the proceedings

As a consequence of the failure of the Council on Ground 1, but its success on Ground 3 (it therefore not being necessary to consider Ground 2), I am satisfied that the appropriate way to dispose of the appeal is to uphold it, but not to remit it to the Commissioner pursuant to subs 56A(2)(a), but to dispose of the proceedings by utilising subs 56A(2)(b) to give effect to the agreement between the parties as to what would be an appropriate revised condition I1.
In doing so, it is also appropriate to attach consolidated amended conditions of consent to this decision so that there is a full, publically available set of conditions of consent showing the revised condition I1 in its context.

Conclusion

I have concluded that, taking the submissions on behalf of the Club at their highest, that subcl 2.5(2) of the LEP does not exclude the entirety of cl 6.7 of the LEP from consideration in proceedings such as those that were conducted before the Commissioner. However, on a “fair reading” of the Commissioner’s decision, despite his disavowal (at [69] of his decision) that there was any necessity to address the matters engaged by the Council's contentions that fell within the scope of cl 6.7, the Commissioner’s conventional assessment pursuant to s 79C of the EP&A Act nonetheless properly encompassed assessment of all relevant matters that would have arisen had the Commissioner engaged with the relevant substantive elements of cl 6.7 of the LEP raised by the Council's contentions.
As a consequence, the Council's primary ground of complaint, Ground 1, fails.
In light of the way Grounds 2 and 3 were argued, I considered it appropriate to deal with Ground 3 before considering whether or not it was necessary to address Ground 2.
For the reasons I have set out, I am satisfied that the relevant portion of the transcript of the proceedings before the Commissioner on 30 September 2016 discloses that a reasonable and realistic expectation was given by the Commissioner that he would merely make findings and that he would, subsequently, provide the parties with an opportunity to consider those findings and, if the parties were unable to reach agreement in light of those findings, address the Commissioner further on the terms of alternative conditions of consent for which each party contended.
As the Commissioner’s decision was not confined to the making of findings on such matters but proceeded to determine, to finality, relevant issues relating to special events and the management prescriptions to attach to them without providing that additional opportunity to the parties to be heard, I have concluded that the Commissioner denied the Council (as the Appellant in these proceedings) procedural fairness on that matter of narrow compass. The result of this is that the Council has succeeded on Ground 3.
It therefore follows, from my finding on Ground 3, that it is unnecessary to consider whether Ground 2 has been made out.
However, as discussed in some detail earlier, in anticipation of the potential for such an outcome, I had asked the parties to consider whether disposition of the proceedings pursuant to subs 56A(2)(b) of the Court Act would be appropriate if the parties were able to agree on settled terms of a replacement condition to condition I1, the condition of primary concern to the Council.
The parties were able to agree on the terms of such a substitute condition in the event that I did not find that the Commissioner’s broader decision-making process had miscarried. It is, therefore, appropriate to dispose of these proceedings by upholding the appeal but resolving the necessary outcome by deleting condition I1 of the terms of the development consent conditions imposed by the Commissioner and substituting the version agreed to by the parties. In doing so, it is also appropriate to incorporate, in my orders, a consolidated set of conditions of development consent, substituting the revised condition for that originally included.

Costs

Costs in appeals such as these ordinarily follow the event and there is nothing in these proceedings that would displace that presumption.

Orders

The orders of the Court, therefore, are:

The appeal is upheld;

Pursuant to subs 56A(2)(b) of the Land and Environment Court Act 1979, condition I1 of the conditions of development consent contained in Annexure A to the orders of the Court in Matter No 170886 of 2016 and dated 6 January 2017 is deleted, and revised condition I1, as set out in Annexure 1 to these orders, is substituted in lieu thereof;

As a consequence of (2), the consolidated conditions of development consent applying to the approval of Development Application 78/16 are those set out in Annexure 2 to these orders;

Exhibit A is returned; and

The Respondent is to pay the Appellant’s costs of the appeal as agreed or assessed.

**********

ANNEXURE 1

I1.   The normal hours of operation and maximum patron numbers are:
●   7am to 12 midnight, Monday to Saturday.
●   7am to 10pm, Sunday.
●   the Outdoor Area is to cease use at 9pm.
●   a maximum of 600 patrons between 7am and 9pm, 7 days per week.
●   a maximum 400 patrons between 9pm and midnight for the Club, Monday to Saturday and 9pm to 10pm Sundays.
●   Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.
Except as amended or restricted by the following:
●   the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7 days for a 12 month trial period,
●   the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,
●   the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.
●   the Club may operate for special event days in accordance with the following table:

Special Event Days (Not the Trial Period)

Special Event Days (Trial Period)

A maximum of 900 patrons until 9.30pm

A maximum of 900 patrons until 10pm

A maximum of 600 patrons between 9.30pm and 12.30am (the following day)

A maximum of 600 patrons between 10pm and 12.30am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

Definitions
●   “Outdoor Area” is the area of the most northerly bowling green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.
●   “Special event days” are New Year’s Eve.
●   “Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. (see conditions I12 to I17). The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.
Upon expiry of the permitted hours, including trial period hours:
(a)   all restaurant service (and entertainment) must immediately cease;
(b)   no person shall be permitted entry; and
(c)   patrons on the premises must leave within the following 15 minutes of any change to the number of patrons required by the conditions of consent, including the trial period requirements.
(Reason: to ensure that amenity of the surrounding locality is maintained and hours of operation are consistent with those in surrounding locality.)

ANNEXURE 2

Land and Environment Court

Case Number: 2016/170886

North Sydney Leagues Club Ltd. V North Sydney Council

50 Ridge Street North Sydney

Conditions of Consent

PART A - Base Conditions

A. Conditions that Identify Approved Plans

Development in Accordance with Plans/documentation

A1. The development must be carried out in accordance with Drawings numbered DA2-0090; DA2-1002; DA2-4000 and DA2-4001, dated 11 February 2016, drawn by Humphrey + Edwards, and Drawings numbered DA2-0001.02; DA2-1000.02 and DA2-1001.02, dated 12 May 2016, drawn by Humphrey+ Edwards, and endorsed with Council's approval stamp, except where amended by the following conditions and this consent.

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information)

Plans on Site

A2. A copy of all stamped approved plans, specifications and documents (including the plans, specifications and documents submitted and approved with the Construction Certificate) must be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority.

All documents kept on site in accordance with this condition must be provided to any officer of the Council or the certifying authority upon their request.

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance)

No Demolition of Extra Fabric

A3. Alterations to, and demolition of the existing building shall be limited to that documented on the approved plans.

(Reason: To ensure compliance with the approved development) Paved Outdoor Area

A4. Deleted (see condition 11)

A5. Deleted (see condition 11).

C Prior to the Issue of a Construction Certificate

Structural Adequacy of Existing Building

Cl. A report prepared by an appropriately qualified and practising structural engineer, certifying the structural adequacy of the property and its ability to withstand the proposed additional, or altered structural loads during all stages of construction shall be submitted to the Certifying Authority for approval prior to issue of any Construction Certificate. The certified report must also include all details of the methodology to be employed in construction phases to achieve the above requirements. The methodology in the certified report must be complied with at all times.

(Reason: To ensure the structural integrity of the building is maintained)

Heritage Architect to be commissioned

C2. An appropriately qualified and experienced heritage architect must be commissioned to assist the design development, contract documentation and overseeing of construction works on the site for their duration by undertaking regular inspections of the works in progress and providing advice in relation to heritage matters.

Written details of the engagement of the experienced heritage architect must be submitted to the Certifying Authority prior to the issue of any Construction Certificate.

Note: if advice provided by the heritage architect is to the effect that works requiring development consent be carried out, such works would require an application under s96 of the Environmental Planning and Assessment Act 1979 or further development application. This condition, and any advice given by the heritage architect, should not be construed as authorising the carrying of development with/ otherwise than in accordance with the development consent.

(Reason: To ensure that all matters relating to significant fabric and spaces are resolved and recorded using best practice for heritage conservation)

External Colours and Finishes

C3. The external colours and finishes shall match those as existing and/ or be compatible with surrounding development. A schedule of external colours and finishes must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the building plans and specifications submitted, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure that the completed colours and finishes of the works are compatible with surrounding development)

Stormwater Disposal

C4. Stormwater runoff generated by the approved development must be conveyed by gravity to the existing site stormwater drainage disposal system. A licensed tradesman shall install plumbing components to achieve this requirement in accordance with the BCA and current plumbing standards and guidelines. Plans and specifications which comply with this condition must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the building plans and specifications submitted, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure appropriate provision for disposal and stormwater management arising from the development)

Works to Out Buildings

C5. Roof tiles to be replaced only where necessary and are to match the original roof tiles.

Existing original pedestrian door to be restored and retained in situ such that n is visible from the interior of the existing out building.

A nib wall (minimum of 230 mm) to be retained where the internal walls are proposed for demolition within the out building.

New windows and doors to the out buildings are to be timber framed.

Exterior Colour Scheme of the new works to be sympathetic to the existing out buildings.

The Certifying Authority must ensure that the building plans and specifications submitted, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To allow for the interpretation of the original internal space and to conserve the heritage significance of the buildings.)

D. Prior To Any Commencement

Public Liability Insurance -Works on Public Land

D1. Any person or contractor undertaking works on public land must take out Public Risk Insurance with a minimum cover of $20 million in relation to the occupation of public land and the undertaking of approved works within Council's road reserve or public land, as approved by this consent. The Policy is to note, and provide protection/full indemnification for North Sydney Council, as an interested party. A copy of the Policy must be submitted to Council prior to commencement of any works. The Policy must be valid for the entire period that the works are being undertaken.

(Note: Applications for hoarding permits, vehicular crossings etc will require evidence of insurance upon lodgement of the application.)

(Reason: To ensure the community is protected from the cost of any claim for damages arising from works on public land)

Sydney Water Approvals

D2. Prior to the commencement of any works, the approved plans must be submitted to a Sydney Water Quick Check agent or Customer Care Centre to determine whether the development application will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. The Certifying Authority must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the commencement of building works.

Note: For Quick Check agent details please refer to 'Your Business" section of

Sydney Water's web site at then see Building and

Renovating under the heading Building and Developing, or telephone 13 20 92.

(Reason: To ensure compliance with Sydney Water requirements)

Asbestos Material Survey

D3. Prior to the commencement of any works, a report must be prepared by a suitably qualified person in relation to the existing building fabric to be demolished and/or disturbed identifying the presence or otherwise of asbestos contamination and, if asbestos contamination is present, making recommendations as to the work required to safely address the contamination.

Any demolition works or other works identified in the report as having to be carried out must be carried out in accordance with the recommendations of the report and the following:

i.   the removal of asbestos must be undertaken by a WorkCover licensed contractor;
ii.   all removal must be in strict accordance with the requirements of the WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and any Work Safe Australia requirements.
iii.   during the removal of any asbestos a sign stating "DANGER ASBESTOS REMOVAL IN PROGRESS" must be erected in a visible position at the boundary of the site; and
iv.   Waste disposal receipts must be provided to the Certifying Authority as proof of correct disposal of asbestos laden waste.
The report must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the report, and other plans, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily)

Commencement of Works Notice

D4. Building work, demolition or excavation in accordance with this development consent must not be commenced until the developer has given at least 2 days notice to North Sydney Council of the person's intention to commence building work, demolition or excavation in accordance with this development consent.

(Reason: To ensure appropriate safeguarding measures are in place prior to the commencement of any building work, demolition or excavation)

Section 60 application

D5. An application under section 60 of the NSW Heritage Act must be submitted and approved by the NSW Heritage Council prior to work commencing.

(Reason: Statutory)

Photographic Survey

D6. The applicant shall prepare a digital photographic archival recording of the existing building to record the building prior to, during and after completion of works.

The digital photographic archival recording is to be in accordance with the Heritage Council of NSW guidelines How to Prepare Archival Records of Heritage Items (1998) and Photographic Recording of Heritage Items Using Film or Digital Capture (2006).

The applicant shall submit the digital photographic archival recording to the Heritage Division prior to the occupation of the building.

(Reason: To provide a historical record of heritage significant fabric on site for archival purposes)

E. During Demolition and Building Work

Historical fabric and relics

E1. Significant built elements and landscape features to be adequately protected during the works from potential damage. Protection systems must ensure significant fabric is not damaged or removed.

The installation of new services shall be carried out in such a manner as to minimise damage to or removal of historic fabric and shall not obscure historic features. Any penetrations through heritage fabric for supply and waste pipes should be prevented.

The Applicant must ensure that if any historical archaeological 'relics' within the meaning of Heritage Act 1977, are disturbed by the works necessary for the new development, the Heritage Council of NSW is notified in accordance with Section 146 of the Heritage Act 1977. Further advice, assessment and approval may be required before works continue in the area subject to the nature of the discovery.

Should any Aboriginal 'objects' be uncovered by the work, excavation or disturbance of the area is to stop immediately and the Office of Environment & Heritage is to be informed in accordance with Section 89A of the National Parks and Wildlife Act, 1974 (as amended). Aboriginal 'objects' must be managed in accordance with an approved Aboriginal heritage impact permit under Section 90 of the National Parks and Wildlife Act, 1974.

(Reason: To prevent the unnecessary destruction or removal of unrecorded historical or Aboriginal relics)

Parking Restrictions

E2. Existing public parking provisions in the vicinity of the site must be maintained at all times during works. The placement of any barriers, traffic cones, obstructions or other device in the road shoulder or kerbside lane is prohibited without the prior written consent of Council. Changes to existing public parking facilities/restrictions must be approved by the North Sydney Local Traffic Committee. The Developer will be held responsible for any breaches of this condition, and will incur any fines associated with enforcement by Council regulatory officers.

(Reason: To ensure that existing kerbside parking provisions are not compromised during works)

Road Reserve Safety

E3. All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works, with no obstructions caused to the said footways and roadways. Construction materials and plant must not be stored in the road reserve without approval of Council. A safe pedestrian circulation route and a pavement route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site.

Where public infrastructure is damaged, repair works must be carried out in when and as directed by Council officers (at full Developer cost). Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) "Traffic Control Devices for Work on Roads". If pedestrian circulation Is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

(Reason: Public Safety)

Temporary Disposal of Stormwater Runoff

E4. During construction, stormwater runoff must be disposed in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to reasonably manage and control runoff as far as the approved point of stormwater discharge. Such ongoing measures must be to the satisfaction of the Certifying Authority.

(Reason: Stormwater control during construction)

Removal of Extra Fabric

E5. Should any portion of the existing building, trees, or curtilage of the site which is indicated on the approved plans to be retained be damaged for whatever reason, all the works in the area of the damaged portion are to cease and written notification of the damage is to be given to Council forthwith. No work is to resume until the written approval of Council to do so is obtained. Failure to comply with the provisions of this condition may result in the Council taking further action including legal proceedings if necessary.

(Reason: To ensure compliance with the terms of this development consent)

Noise and Vibration

E6. The works must be undertaken in accordance with the "Interim Construction Noise Guideline" published by the NSW Environment Protection Authority, to ensure excessive levels of noise and vibration do not occur so as to minimise adverse effects experienced on any adjoining land.

(Reason: To ensure residential amenity is maintained in the immediate vicinity)

No Work on Public Open Space

E7. No work can be undertaken within adjoining public lands (ie Parks, Reserves, Roads etc) without the prior written consent of Council. In this regard the developer is to liaise with Council prior to the commencement of any design works or preparation of a Construction and Traffic Management Plan.

(Reason: Protection of existing public infrastructure and land and to ensure public safety and proper management of public land)

Developer's Cost of Work on Council Property

E8. The developer must bear the cost of all works associated with the development that occurs on Council's property, including the restoration of damaged areas.

(Reason: To ensure the proper management of public land and funds)

No Removal of Trees on Public Property

E9. No trees on public property (footpaths, roads, reserves, etc.) unless specifically approved by this consent shall be removed or damaged during construction including for the erection of any fences, hoardings or other temporary works.

(Reason: Protection of existing environmental infrastructure and community assets)

Spacial Permits

E10. Unless otherwise specifically approved in writing by Council, all works, processes, storage of materials, loading and unloading associated with the development must occur entirely on the property.

The developer, owner or builder may apply for specific permits available from Council's Customer Service Centre for the undermentioned activities on Council's property. In the event that a permit is granted by Council for the carrying out of works, processes, storage of materials, loading and unloading associated with the development on Council's property, the development must be carried out in accordance with the requirements of the permit. A minimum of forty-eight (48) hours notice is required for any permit: -

1)    On-street mobile plant
Eg. cranes, concrete pumps, cherry-pickers, etc. restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the developer's, owner's and builder's responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owner's rights.
(Reason:   Proper management of public land)
2)    Hoardings
Permits are required to erect Class A and Class B hoardings. If an 'A' Class hoarding is to alienate a section of Council's property, that section will require a permit for the occupation of Council's property.
(Reason:    Proper management of public land)
3)    Storage of building materials and building waste containers (skips) on Council's property
Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given. Storage of building materials and waste containers on open space reserves and parks is prohibited.
(Reason:    Proper management of public land)
4)    Kerbside restrictions, construction zones
Attention is drawn to the existing kerbside restrictions adjacent to the development. Should alteration of existing kerbside restrictions be required, or the provision of a construction zone, the appropriate application must be made and the fee paid to Council. Alternatives to such restrictions may require referral to Council's Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.
(Reason:    Proper management of public land)

Construction Hours

E11. Building construction and works must be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays.

Demolition and excavation works must be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. For the purposes of this condition:

1)    "Building construction" means any physical activity on the site involved in the erection of a structure, cladding, external finish, formwork, fixture, fitting of service installation and the unloading of plant, machinery, materials or the like.
2)    "Demolition works" means any physical activity to tear down or break up a structure (or part thereof) or surface, or the like, and includes the loading of demolition waste and the unloading of plant or machinery.
3)    "Excavation work" means the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders, or the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site and includes the unloading of plant or machinery associated with excavation work.

All builders, excavators must display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.

(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community)

Out of Hours Work Permits

E12. Where it is necessary for emergency works to occur outside those hours allowed by these conditions, an application may be made to Council's Customer Services Centre for a permit to carry out emergency works outside of the approved hours. If a permit is issued the development must be carried out in accordance with any requirements of the permit. A permit and shall only be approved if public safety or convenience is at risk. Any further variation shall require the lodgement and favourable determination of a modification application pursuant to Section 96 of the Environmental Planning and Assessment Act 1979.

Notes:

1)    Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued, or Council pursuing any action required (including legal proceedings) to have the out of hours work cease, without prior warning.
2)    Further information on permits can be obtained from the Council website at    It is recommended that applications for permits be lodged as early as possible to allow sufficient time for determination by Council and avoid disruption or delay due to conflicting priorities.
4)    Permit Emergency for such occurrence shall be limited to two occasions per calendar month

(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community)

Health and Safety

E13. All work undertaken must satisfy applicable occupational health and safety and construction safety regulations, including any WorkCover Authority requirements to prepare a health and safety plan. Site fencing must be installed sufficient to exclude the public from the site. Safety signs must be erected that warn the public to keep out of the site, and provide a contact telephone number for enquiries.

Further information and details regarding occupational health and safety requirements for construction sites can be obtained from the internet at ensure the health and safety of the community and workers on the site)

Prohibition on Use of Pavements

E13.1 Building materials must not be placed on Council's footpaths, roadways, parks or grass verges, (unless a permit is obtained from Council beforehand). A suitable sign to this effect must be erected adjacent to the street alignment.

(Reason: To ensure public safety and amenity on public land)

Plant & Equipment Kept Within Site

E14. All plant and equipment used in the undertaking of the development/ works, including concrete pumps, wagons, lifts, mobile cranes, hoardings etc, must be situated within the boundaries of the site (unless a permit is obtained from Council beforehand) and so placed that all concrete slurry, water, debris and the like must be discharged onto the building site, and is to be contained within the site boundaries.

Details of Council requirements for permits on public land for standing plant, hoardings, storage of materials and construction zones and the like are available on Council's website at To ensure public safety and amenity on public land)

F. Operational Conditions imposed under EP&A Act and Regulations and other relevant Legislation

Building Coda of Australia

F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia

(Reason: Prescribed Statutory)

Appointment of a Principal Certifying Authority (PCA)

F2. Building work, demolition or excavation in accordance with the development consent must not be commenced until the developer has appointed a Principal Certifying Authority for the building work in accordance with the provisions of the EP&A Act and its Regulations.

(Reason: Statutory; To ensure appropriate safeguarding measures are in place prior to the commencement of any building work, demolition or excavation)

Construction Certificate

F3. Building work, demolition or excavation in accordance with the development consent must not be commenced until a Construction Certificate for the relevant part of the building work has been issued in accordance with the provisions of the EP&A Act and its Regulations.

(Reason: Statutory; To ensure appropriate safeguarding measures are in place prior to the commencement of any building work, demolition or excavation)

Occupation Certificate

F4. A person must not commence occupation or use of the whole or any part of a new building (new building includes an altered portion of, or an extension to, an existing building) unless an Occupation Certificate has been issued in relation to the building or part. Only the Principal Certifying Authority appointed for the building work can issue an Occupation Certificate.

(Reason: Statutory)

Critical Stage Inspections

F5. Building work must be inspected by the Principal Certifying Authority on the critical stage occasions prescribed by the EP&A Act and its Regulations, and as directed by the appointed Principal Certifying Authority.

(Reason: Statutory)

Commencement of Works

F6. Building work, demolition or excavation in accordance with this development consent must not be commenced until the developer has given at least 2 days notice to North Sydney Council of the person's intention to commence the erection of the building.

(Reason: Statutory; To ensure appropriate safeguarding measures are in place prior to the commencement of any building work, demolition or excavation)

Excavation/Demolition

F7. 1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

3) Demolition work must be undertaken in accordance with the provisions of AS2601- Demolition of Structures.

(Reason: To ensure that work is undertaken in a professional and responsible manner and protect adjoining property and persons from potential damage)

Protection of Public Places

F8. 1) A hoarding and site fencing must be erected between the work site and adjoining public place.

2) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

4) Any such hoarding, fence or awning is to be removed when the work has been completed.

5) No access across public reserves or parks is permitted.

Note: Prior to the erection of any temporary fence or hoarding over property owned or managed by Council, written approval must be obtained. Any application needs to be accompanied by plans indicating the type of hoarding and its layout. Fees are assessed and will form part of any approval given. These fees must be paid prior to the approval being given. Approval for hoardings will generally only be given in association with approved building works, maintenance or to ensure protection of the public. An application form for a Hoarding Permit can be downloaded from Council's website.

(Reason: To ensure public safety and the proper management of public land)

Maximum Capacity Site Sign

F9. A sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in this development consent, that are permitted in the building.

(Reason: Prescribed Statutory)

On-Going/Operational Conditions

Hours of Operation/Patron Numbers

I1.   The normal hours of operation and maximum patron numbers are:
●   7am to 12 midnight, Monday to Saturday.
●   7am to 10pm, Sunday.
●   the Outdoor Area is to cease use at 9pm.
●   a maximum of 600 patrons between 7am and 9pm, 7 days per week.
●   a maximum 400 patrons between 9pm and midnight for the Club, Monday to Saturday and 9pm to 10pm Sundays.
●   Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.
Except as amended or restricted by the following:
●   the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7 days for a 12 month trial period,
●   the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,
●   the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.
●   the Club may operate for special event days in accordance with the following table:

Special Event Days (Not the Trial Period)

Special Event Days (Trial Period)

A maximum of 900 patrons until 9.30pm

A maximum of 900 patrons until 10pm

A maximum of 600 patrons between 9.30pm and 12.30am (the following day)

A maximum of 600 patrons between 10pm and 12.30am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

A maximum of 400 patrons between 12.30am and 2.00am (the following day)

Definitions
●   “Outdoor Area” is the area of the most northerly bowling green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.
●   “Special event days” are New Year’s Eve.
●   “Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. (see conditions I12 to I17). The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.
Upon expiry of the permitted hours, including trial period hours:
(a)   all restaurant service (and entertainment) must immediately cease;
(b)   no person shall be permitted entry; and
(c)   patrons on the premises must leave within the following 15 minutes of any change to the number of patrons required by the conditions of consent, including the trial period requirements.

(Reason: To ensure that amenity of the surrounding locality is maintained and hours of operation are consistent with those in surrounding locality.)

Parking

I2. Thirty (30) parking spaces shall be provided on site and car parking spaces must be clearly marked and made freely available to patrons and staff.

(Reason: To ensure that parking is available on site and to identify those spaces to visitors)

Loading within Site

I3. All loading and unloading operations must be carried out wholly within the confines of the site, at all times and must not obstruct other properties or the public way.

(Reason: To ensure that deliveries can occur safely within the site and does not adversely affect traffic or pedestrian amenity)

Patron Behaviour

I4. The proprietors/management of the premises must take all steps necessary to ensure that no noise nuisance occurs from persons entering or leaving the premises. The proprietors/management must ensure that:

(a) A sign is placed in clearly visible position adjacent to the entry/exit of the premises requesting patrons upon leaving the premises to do so quickly and quietly, having regard to maintaining the amenity of the area.

(b) The management must ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood.

(c) The management must be responsible for the control of noise and litter generated by patrons of the premises and must ensure that patrons leave the vicinity of the premises in an orderly manner to the satisfaction of Council.

(d) If so directed by Council, the management is to employ private security staff to ensure that this condition is complied with.

(Reason: To ensure patrons do not interfere with the acoustic amenity of residents in the immediate locality)

Plan of Management

I5. The management of the premises shall be conducted in accordance with the Plan of Management prepared by Design Collaborative Pty Ltd, dated August 2016, except Section 2.2 (hours) and Section 2.3 (capacity) and where otherwise amended by the conditions of this consent.

(Reason: To ensure the ongoing operation of the premises is in accordance with the terms of this consent)

Waste Collection

I6. Waste and recyclable material, generated by this premises, must not be collected between the hours of 10pm and 6am on any day.

(Reason: To ensure the amenity of surrounding properties)

Maximum Capacity

I7. Deleted (see condition 11)

Complaint Process

I8. The secretary must maintain in the Club's incident register details of any noise complaints, irrespective of when those complaints are made and irrespective of when the substance of the complaint may have occurred and any action taken in response to such complaint.

No party to any complaint concerning disturbance to the quiet and good order of the neighbourhood is to make known to any other person not being a party, the names or addresses of any other party in the proceedings; in particular, no member of the Club is to be informed either directly or indirectly of the identity or location of any complainant.

(Reason: To ensure that amenity impacts are addressed)

Noise

I9. The applicant shall ensure that No amplified music, speaker system or entertainment from within or outside of the clubhouse is heard at the boundary of the closest residential premises.

The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5HZ 8kHz inclusive) by more than 5dB between 07:00 am and 12:00 midnight at the boundary of any affected residence. The LA1o noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5HZ 8kHz inclusive) between 12:00 midnight and 07:00 am at the boundary of any affected residence. For the purposes of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licensed premises.

Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 07:00 am.

The Club shall utilise a noise limiter device on all amplified audio systems to ensure compliance with the above levels.

No additional amplified audio systems are to be utilised unless connected to a Noise limiting device.

Suitable signs are to be erected around the greens asking patrons to have regard to the club's neighbours and leave the area quickly and quietly.

(Reason: To protect neighbourhood amenity)

Security

I10. At any time there are more than 150 patrons at the Club, the licensee must ensure at least one security guard is deployed to continuously patrol and monitor the patron queue and the 50 metre vicinity of the Club.

On any day when the Club trades past 10:00pm the Club is to provide 2 security guards to monitor and patrol Ridge Street. Security is to actively ensure that patrons do not disturb the quiet and good order of the neighbourhood.

At any time there are more than 150 patrons at the Club, the licensee must ensure at least two security guards for the first 100 patrons and a ratio of 1 security guard per 100 patrons thereafter.

(Reason: To protect neighbourhood amenity)

End of Part A

PART B -

Outdoor Paved Area

I11. Deleted (see condition 11)

Trial Period

I12. The use of the premises pursuant to this development consent shall be for a trial period of 12 months only from the commencement of such use.

I13. The Applicant must notify the Council in writing, not later than three (3) days after the commencement of the use of the premises pursuant to this development consent of the date of such commencement

I14. If the Applicant wishes to extend the use of the premises as approved by this development consent beyond the 12 month trial period then it must make a development application or modification application not later than 9 months after the commencement of such use.

I15. The Applicant may continue the use of the premises beyond the 12 month trial period pending the determination by the Council of the Applicant's application referred to in the preceding condition. If the Council determines to refuse the application then, provided that the Applicant shall have filed an appeal to the Land and Environment Court not later than 28 days after the date of such determination, the Applicant may continue the use of the premises as approved by this development consent until the final determination of the Applicant's appeal.

I15. When submitting an application to extend the trial period, such application must be accompanied by the following information or documentation:

● An acoustic report not more than 28 days old at the date of the application, reporting as to compliance or otherwise with any conditions of this development consent that seek to control the emission of noise

● Evidence of compliance (or otherwise) with any conditions of this development consent that seek to control patron numbers

● Evidence of any complaints received by the Applicant as well as evidence of the response by the Applicant to each of those complaints in the period from the commencement of the use approved by this development consent up until the submission of the application for an extension or removal of the trial period

I17. The Applicant shall notify residents within the locality by means of signs at the Club premises and such other means as may reasonably be approved by the Council (such as newspaper advertisements) that the Applicant has a system of receiving complaints from residents (including by telephone to a telephone number to be notified to the public). The Applicant shall upon reasonable notice from the Police or the Council provide to the Police or to the Council details of such complaints and of the measures undertaken by the Applicant to respond to such complaints

G Brown

Commissioner of the Court

Decision last updated: 14 June 2017

Medium Neutral Citation:	North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69
Hearing dates:	31 May 2017
Date of orders:	14 June 2017
Decision date:	14 June 2017
Jurisdiction:	Class 1
Before:	Moore J
Decision:	Orders at [90]
Catchwords:	APPEAL – appeal on question of law against Commissioner’s decision– refurbishment of registered club premises; hours of operation and patron numbers – use of outdoor area (part of former bowling green) for dining – three grounds of appeal – incorrect interpretation of provisions of the applicable Local Environment Plan (Ground 1); manifestly unreasonable decision (Ground 2); and denial of procedural fairness (Ground 3) APPEAL – Ground 1 – cl 2.5 of the applicable Local Environment Plan provides special regime for site – whether Commissioner’s interpretation of clause correct to exclude applicability of other clauses of the Local Environment Plan – Commissioner’s reasoning incorrect – nonetheless, a “fair reading” of the Commissioner’s decision discloses that he considered and dealt with the relevant matters, notwithstanding his conclusion that the clause was not applicable – Ground 1 fails APPEAL – Ground 3 considered prior to Ground 2 – no necessity to consider Ground 2 given Appellant’s success on Ground 3 APPEAL – Ground 3 – reasonable expectation that Commissioner would make general findings and permit parties to be heard on conditions appropriate to reflect findings – imposition of condition of development consent without affording Appellant opportunity to be heard on its terms – denial of procedural fairness under the circumstances – Ground 3 made out – appeal upheld APPEAL– parties reached agreed position on what amended condition of development consent should be imposed if Ground 1 failed but Ground 2 and/or 3 succeeded – powers of the Court on appeal – s 56A(2)(b) permits making “such other order in relation to the appeal” as might be dispositive of appeal without remitter to the Commissioner – in light of the parties’ agreement to a replacement condition of consent, appropriate to order amendment of conditions of development consent granted by Commissioner in lieu of remitter – consolidated, amended conditions of development consent also ordered
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, s 56A North Sydney Development Control Plan 2013 North Sydney Local Environmental Plan 2013, cll 2.3, 2.5 and 6.7
Cases Cited:	Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
Category:	Principal judgment
Parties:	North Sydney Council (Appellant) North Sydney Leagues Club Ltd (Respondent)
Representation:	Counsel: Mr T To, barrister (Appellant) Mr C McEwen SC and Mr T March, barrister (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Dentons (Respondent)
File Number(s):	33609 of 2017
Publication restriction:	No

Special Event Days (Not the Trial Period)	Special Event Days (Trial Period)
A maximum of 900 patrons until 9.30pm	A maximum of 900 patrons until 10pm
A maximum of 600 patrons between 9.30pm and 12.30am (the following day)	A maximum of 600 patrons between 10pm and 12.30am (the following day)
A maximum of 400 patrons between 12.30am and 2.00am (the following day)	A maximum of 400 patrons between 12.30am and 2.00am (the following day)