Siwogu Pty Ltd v Penrith City Council

[2021] NSWLEC 1492

Land and Environment Court

New South Wales

Medium Neutral Citation:

Siwogu Pty Ltd v Penrith City Council [2021] NSWLEC 1492

Hearing dates:

Conciliation conference on 16 and 30 July and 9 August 2021

Date of orders:

26 August 2021

Decision date:

26 August 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders as follows:

(1) The Applicant is to pay the Respondent’s costs in the sum of $5,000 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development Application 20/0521 for the alterations and additions to the Wallacia Hotel including the relocation of an existing gaming area into an existing drive through bottle shop area, construction of internal and external accessible ramps and toilet facilities, reconfiguration of car park and new signage at 1590-1594 Mulgoa Road Wallacia, is approved subject to the conditions contained in Annexure “A” hereto.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to hotel – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 5.10, 5.21, 7.6, 7.7, Sch 5

State Environmental Planning Policy (Infrastructure) 2007

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

State Environmental Planning Policy No 64—Advertising and Signage, cl 8, Sch 1

Texts Cited:

Wallacia Hotel Conservation Management Plan

Category:

Principal judgment

Parties:

Siwogu Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
George Gourlas Lawyer (Applicant)
Penrith City Council (Respondent)

File Number(s):

2021/59479

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of a development application DA20/0521 seeking development consent for alterations and additions to the Wallacia Hotel including the relocation of an existing gaming area into the existing drive through bottle shop area, the construction of internal and external accessible ramps and toilet facilities, the reconfiguration of the car park and new signage (the Proposed Development) at 1599-1594 Mulgoa Road, Wallacia NSW 2745 legally described at Lot A DP 334601 and Lot 17 DP 129387 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 and 30 July and 9 August 2021. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied as set out in a document titled ‘The check on jurisdiction’ as follows:

6. In relation to the Penrith Local Environmental Plan 2010 (PLEP) the following jurisdiction items were identified:

1. The zoning of the site is RU 5 Village pursuant to the PLEP;

2. The Proposed Development is permissible with consent;

3. The Proposed Development is compliant with the development standards contained in the PLEP;

4. The subject building is an item of environmental heritage listed in Schedule 5 of the PLEP (item 352). Pursuant to cl 5.10(4) of the PLEP prior to the grant of consent the consent authority must consider the effect of the development on the heritage significance of the item. The parties agree that on the basis of the amended plans the proposed development will have an acceptable effect on the heritage significance of the item;

1. In addition to the submission of the parties, I have referred to the Statement of Facts and Contentions filed by the Respondent on 15 April 2021 and in relation to heritage I note that the State heritage inventory provides the following Statement of Significance for the Site:

“The Wallacia Hotel is an excellent example of an inter-war country resort style hotel in the Stockbroker’s Tudor style. Historically the building amply demonstrate the theme of leisure which is expressed through its scale, architectural style, public bar and provision of accommodation.”

2. The relevant document that guides future development of the Site is the Wallacia Hotel Conservation Management Plan prepared by Graham Brooks and Associates Pty Ltd dated October 2010 (CMP). I have considered the effect of the Proposed Development on the heritage significance of the Wallacia Hotel and am satisfied that the alterations and additions are sympathetic in form and does not erode the integrity of the heritage item.

5. Pursuant to cl 5.21 of the PLEP the site is not within a flood planning area;

6. Pursuant to cl 7.6 of the PLEP the site and the development will not have any effect on salinity processes; and

7. Pursuant to cl 7.7 of the PLEP the site has access to adequate facilities and services.

7. The parties addressed the requirements of cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) and they inform the Court that the building erected on the site was erected circa 1937.  There is no fact or matter to suggest that the land is contaminated or that the land is not suitable for the proposed development pursuant to cl 7 of SEPP 55.

8. Pursuant to the State Environmental Planning Policy (Infrastructure) 2007 the proposed development is not a traffic-generating activity and is not adjacent to a road containing high daily traffic volumes. That notwithstanding, the proposal has been referred to Transport for NSW (TfNSW) as Mulgoa Road is a classified road and TfNSW has provided its referral response and the conditions of consent reflect that referral response.

9. Pursuant to cl 8 of State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64) the parties agree that the proposed signage satisfies the objectives of SEPP 64 and the assessment criteria in Schedule 1. The SEPP 64 assessment forms annexure 12 to the Class 1 application.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out above in this judgment.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The Court Notes:

1. That the parties have reached agreement as to terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. That Penrith City Council agrees that the development application is to be amended or varied in accordance with the amended plans listed in Annexure “A” hereto (the Amended Plans).

3. That the parties agree that in the event that the Court makes final Orders (a) and (b) below the Applicant is to pay the Respondent’s costs in the sum of $5,000 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of the date of those Orders.

13. The Court makes the following Directions:

1. The Respondent, Penrith City Council, is to lodge the Amended Plans on the NSW Planning Portal within seven (7) days of the date of this Agreement and notify the Applicant and Court after lodgment.

2. The Applicant is to file the Amended Plans with the Court within seven (7) days after lodgment on the NSW Planning Portal.

3. In the event that the Respondent in unable to lodge the amended plans in accordance with Order 1, then the proceedings are to be relisted by the Respondent for further mention before the Court within fourteen (14) days of the date of this Agreement.

14. The Court orders as follows:

1. The Applicant is to pay the Respondent’s costs in the sum of $5,000 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of the date of these Orders.

2. The appeal is upheld.

3. Development Application 20/0521 for the alterations and additions to the Wallacia Hotel including the relocation of an existing gaming area into an existing drive through bottle shop area, construction of internal and external accessible ramps and toilet facilities, reconfiguration of car park and new signage at 1590-1594 Mulgoa Road Wallacia, is approved subject to the conditions contained in Annexure “A” hereto.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (217687, pdf)

Plans (10160856, pdf)

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Decision last updated: 26 August 2021