Sydney Park Hotel Trading Pty Ltd v Inner West Council

[2019] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sydney Park Hotel Trading Pty Ltd v Inner West Council [2019] NSWLEC 1455
Hearing dates:	Conciliation conference on 2 August 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [13] below
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Sydney Park Hotel Trading Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: D Manca (Solicitor) (Applicant) M Mantei (Solicitor) (Respondent)   Solicitors: Las Lawyers & Consultants (Applicant) Planning Law Solutions (Respondent)
File Number(s):	2018/372678
Publication restriction:	No

Judgment

1. COMMISSIONER: On 26 September 2018, the applicant, Sydney Park Hotel, lodged an application with the Inner West Council under s 4.55 of the Environmental Planning and Assessment Act1979 (EPA Act) for consent to modify the hours of operation of the hotel – 5:00am to 3:00am Monday to Saturday and 10:00am to 12:00am Sundays (Application) at 631 King Street, Newtown (Site).

2. The Application was deemed to have been refused on lodgement of this appeal on 6 December 2018 pursuant to s 8.7 of the EPA Act.

3. The Site is located on the western side of King Street at the intersection of King Street and Lord Street, Newtown. The existing improvements on the Site include a two storey building with a basement used as a pub known as the ‘Sydney Park Hotel’ which is a listed item of local environmental heritage under Schedule 5 of the Marrickville Local Environmental Plan 2011 (Item I159).

4. An unnamed laneway adjoins to the Site at the rear.

5. The hotel is located within a mixed use area. There are two and three storey mixed commercial and residential buildings to the north and east of the Site fronting King Street, a primarily low density residential area consisting mainly of single and two storey dwellings to the west of the Site and St Peters railway station and a heavy rail corridor to the south of the Site.

6. The neighbouring property of 617-623 King Street to the north of the Site contains a three storey mixed use development with commercial tenancies on the ground floor fronting King Street and residential units on the ground floor fronting the rear unnamed laneway and on the first and second floors.

7. In accordance with its usual practice, 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 2 August 2019. I presided over the conciliation conference.

8. After 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 consent to the modification of the original consent subject to conditions.

9. 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 4.55 of the EPA Act to modify the trading hours of the hotel. Importantly, the agreed terms have reduced the extended late trading hours to Friday and Saturday 12:00am to 1:00am and Sunday 10:00pm to 11:00pm in an effort to protect the amenity of the surrounding area and to comply with Police requirements.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified these jurisdictional prerequisites. The terms of s 4.55 of the EPA Act to modify a consent requires me to be satisfied about the following matters:

4.55   Modification of consents—generally

(1) …

(2) Other modifications

…

(a)  … that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

11. After a consideration of the amended plans, agreed conditions of consent, the plan of management dated August 2019 I accept that there is no jurisdictional impediment to me granting conditional consent to the application.

12. 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.

13. The Court orders:

1. Leave is granted to the Applicant to amend the modification application the subject of these proceedings as follows:

1. the reference to the original development consent is changed from DA173959 to DA200000748;

2. the proposed extended trading hours are:

Friday and Saturday 12:00 am to 1:00 am

Sunday 10:00 pm to 11:00 pm

3. to rely on the following plans and plan of management:

Plan No. and Issue	Plan/Cert Type	Date Issued	Prepared by
MD02	CCTV Plan	01.07.09	Elaine Richardson Architect
-	Plan of Management	August 2019	Sydney Park Hotel

2. The Applicant is to pay the Respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,500, within 28 days.

3. The appeal is upheld.

4. Development Consent No. DA 200000748 for the extended trading hours of the Sydney Park Hotel at 631 King Street Newtown (lot 1 DP 956255) is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

5. As a consequence of order (4), Development Consent No. DA 200000748 (as modified) is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (22.5 KB)

Annexure B (40.5 KB)

**********

Decision last updated: 27 September 2019