Sunbolt Pty Ltd v Campbelltown City Council

[2021] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sunbolt Pty Ltd v Campbelltown City Council [2021] NSWLEC 1144

Hearing dates:

Conciliation conference on 16 December 2020, 4, 18 and 25 February 2021, 5 and 9 March 2021

Date of orders:

23 March 2021

Decision date:

23 March 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on an amended Plan of Management dated February 2021.

(2)   The appeal is upheld.

(3) Development Consent No. 1435/2008/DA-C granted by Campbelltown City Council on 14 October 2008 for the construction of a hotel (known as the Macarthur Tavern) with car park on the land at 3 Bolger Street, Campbelltown (being Lot 500 in DP 817216 and Lot 3 in DP 1071804) is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

(4) As a consequence of Order (3), Development Consent No. 1435/2008/DA-C is subject to the consolidated, modified conditions of consent set out in Annexure “B”.

Catchwords:

DEVELOPMENT APPEAL – modification application – change of operating hours – licenced premises – conciliation conference – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, Pt 4

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Sunbolt Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
D Plowman (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/249585

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) being an appeal against the actual refusal of an application to modify a development consent being Modification Application No. 1435/2008/DA-C/E seeking consent to modify Development Consent No. 1435/2008/DA-C granted by the Respondent on 14 October 2008 for the construction of a hotel (known as the Macarthur Tavern) with car park. The modification sought is to modify the approved trading hours of the Macarthur Tavern, and associated modifications to the Plan of Management (the Proposed Development) at 3 Bolger Street Campbelltown legally described as Lot 500 DP 817216 (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 was held on 16 December 2020, 4, 18 and 25 February 2021 and 5 and 9 March 2021. I 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 modification application subject to conditions.

4. The parties provided an agreed Jurisdictional Note to which I have had regard and I note their agreement that the modified conditions of consent satisfactorily address the contentions raised in the Respondent’s Statement of Facts and Contentions filed on 3 November 2020, comprising the following:

Contention 1: Social Impacts

Contention 2: Zone Objectives

Contention 3: Crime Prevention

Contention 4: Acoustic Impacts

Contention 5: Public Interest

Contention 6: Precedent

5. The modified conditions of consent forming Annexure B to the Section 34 Agreement generally propose the following:

1. Substitute the new Plan of Management dated February 2021 (Condition 1A);

2. Modify the approved operating hours to permit a 9:00am opening on a permanent basis, as follows (Condition 11A):

Monday:    9.00am to midnight

Tuesday:    9.00am to midnight

Wednesday:    9.00am to midnight

Thursday:    9.00am to 3.00am (the next day)

Friday:    9.00am to 3.00am (the next day)

Saturday:    9.00am to 3.00am (the next day)

Sunday:    9.00am to midnight

3. Allow the following additional modified operating hours proposed by the modification application for a trial period of 24 months by way of a reviewable condition under s 4.17(10B) of the EP&A Act, after which time the operating hours revert back to those specified in Condition 11A unless a further modification application has been approved beforehand, or is still under consideration by Council (Conditions 11B and 11C):

Monday:    9.00am to 3.00am (the next day)

Tuesday:    9.00am to 3.00am (the next day)

Wednesday:    9.00am to 3.00am (the next day)

Thursday:    9.00am to 3.00am (the next day)

Friday:    9.00am to 3.00am (the next day)

Saturday:    9.00am to 3.00am (the next day)

Sunday:    9.00am to midnight

4. Require an updated acoustic report to be provided by the Applicant to the Council, Council’s written approval of the same and the implementation of all recommendations prior to the extended hours of operation in Condition 11B commencing (Conditions 11D and 11E).

5. Various other modifications to the conditions concerning the following matters:

1. Collection of CCTV footage;

2. The responsibilities of security guards servicing the premises after-midnight on Monday to Wednesday (the next day);

3. Maximum patrons, entry/exit points and service of alcohol after 1:00am on Monday to Wednesday (the next day);

4. Preservation of crime scenes.

6. 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 EP&A Act to grant consent to the modification application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EP&A Act to modify a consent.

8. The parties explained how the jurisdictional prerequisites have been satisfied.

9. The modification application is made pursuant to s 4.55(2) of the EP&A Act. The parties make the following comments in this regard:

1. The parties agree that the development as proposed to be modified is substantially the same as the development approved pursuant to the development consent as required by s 4.55(2)(a).

2. The modification application was notified in accordance with the requirements of the EP&A Act, Environmental Planning and Assessment Regulation 2000 and the Respondent’s Community Participation Plan as required by s 4.55(2)(c). Nil submissions were received (other than the submission from the Campbelltown City Police Area Command).

3. The relevant heads of consideration under s 4.15(3) of the EP&A Act have been adequately taken into consideration as outlined in the Jurisdictional Note.

10. Conditions 11B and 11C are imposed pursuant to s 4.17(10B) of the EP&A Act which permits development consent to be granted subject to a reviewable condition and a condition that enables the consent authority to review that condition at any time.

11. In relation to the relevant heads of consideration under s 4.15(3) of the EP&A Act, I note the following:

1. The modified development (a Hotel) is permissible with consent within Zone B4 Mixed Use pursuant to Campbelltown Local Environmental Plan 2015 (CLEP 2015).

2. The proposed modified conditions of consent are considered to address the objectives of Zone B4 Mixed Use pursuant to CLEP 2015.

3. The modified development does not offend a principal development standard in Part 4 of CLEP 2015.

4. The provisions of Parts 5, 6 and 7 of CLEP 2015 are not relevant to the modified development or site.

5. There are no other relevant environmental planning instruments containing jurisdictional prerequisites in respect of which the Court is required to be satisfied.

12. In relation to the remaining relevant heads of consideration in s 4.15(1) of the EP&A Act, the parties agree and I accept that any adverse impacts of the modified development have been addressed by conditions, there are no outstanding likely adverse impacts of the modified development that warrant its refusal, that the site is suitable for the modified development and that no public interest considerations warrant refusal.

13. 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.

14. 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.

15. The Court orders that:

1. The Applicant is granted leave to rely on an amended Plan of Management dated February 2021.

2. The appeal is upheld.

3. Development Consent No. 1435/2008/DA-C granted by Campbelltown City Council on 14 October 2008 for the construction of a hotel (known as the Macarthur Tavern) with car park on the land at 3 Bolger Street, Campbelltown (being Lot 500 in DP 817216 and Lot 3 in DP 1071804) is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

4. As a consequence of Order (3), Development Consent No. 1435/2008/DA-C is subject to the consolidated, modified conditions of consent set out in Annexure “B”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (210520, pdf)

Annexure B (259668, pdf)

Plan of Management 2021 (744681, pdf)

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