Tompkin Whittle Pty Limited v Parramatta City Council

[2009] NSWLEC 1252

Land and Environment Court

of New South Wales

CITATION:	Tompkin Whittle Pty Limited v Parramatta City Council [2009] NSWLEC 1252
PARTIES:	APPLICANT Tompkin Whittle Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	11062 of 2008
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION :-
LEGISLATION CITED:	Land and Environment Court Act 1979 s34
DATES OF HEARING:	12 May 2009
EX TEMPORE JUDGMENT DATE:	12 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr D O'Donnell, solicitor Malleson Stephen Jaques RESPONDENT Mr P Marincowitz, solicitor DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

12 May 2009

11062 of 2008 Tompkin Whittle Pty Limited v Parramatta City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: On 30 May 2008, the applicant applied to Parramatta City Council (the council) for an integrated development comprising the demolition of the existing building on 5-7 Parkes Street, Parramatta (the site) which is a licensed restaurant for the replacement of that with a two storey registered club with two levels of basement car parking.

2 The matter proceeded to consideration by the council and, as a consequence, an appeal was commenced in the Court concerning the application. The appeal was set down for a conciliation conference pursuant to s 34 of the Land and Environment Act and I conducted the first stage of that conciliation conference on 13 March 2009 at the site.

3 During the course of those discussions [which the parties have agreed pursuant to s 34(12) can be carried forward into these proceedings in which I am invited to hear and determine the application], a number of persons took part in addition to the formal representative of the parties. These relevantly included senior representatives of the New South Wales Police Force and the proprietor and the advisers to the proprietor of another set of licensed premises immediately across the road from the site known as PJ Gallagher’s.

4 During the course of that s 34 conference, a wide range of matters were resolved between the parties including the applicant agreeing to alter the regime for hours of operation and patron numbers at various parts of the premises on the basis that that amendment offered voluntarily did not constitute any acceptance by the applicant that what the applicant had originally proposed was inappropriate on its merits but was offered in order to assist the resolution of the matters. The result of all of that and some preliminary discussions about the desirability of security arrangements for these premises being undertaken in conjunction with PJ Gallagher’s, if that were to be possible, has meant that, effectively, all issues are to be regarded as resolved. I am satisfied, as I am for reasons that I propose to outline, that the application should be approved.

5 First, I note that the application involves the consolidation of two existing licensed clubs in the Parramatta area, the Parramatta Club and the Tingha Club, on to a new site. The Tingha Club is located virtually adjacent and slightly to the northwest of the present premises. Each of the clubs has, it is agreed, a trouble free and unblemished record as far as the behaviour of its patrons is concerned. During the course of the discussions with the representatives of the New South Wales Police Force, it became apparent that the only incidents that had occurred were armed hold ups which had taken place, from my memory, on at least one prior occasion at one of the clubs. This is hardly a circumstance that could be held as a blemish on the clubs record, rather an antisocial act committed against it.

6 PJ Gallagher’s was the subject of a number of comments by the New South Wales Police representatives and by the security adviser to the council, matters about which I do not propose to draw any conclusions or speculate.

7 I do however note that in a conversation during a separate meeting which I had with Mr Gallagher, the proprietor of these premises [held with the agreement of the parties], Mr Gallagher disputed that version of events but I indicated to Mr Gallagher that I did not propose to make any judgment in that regard.

8 In that respect, I did have with the consent of the parties this morning at the resumed s 34 conference, as noted above, a separate discussion with Mr Gallagher and his adviser.

9 During the course of that discussion, I explained to Mr Gallagher that the proposed plan of management agreed to by the parties to these proceedings did not bind his premises; could not bind his premises; and was not intended to bind his premises but that the parties to these proceedings had agreed that it was desirable to incorporate in that plan of management the option [which the applicant in these proceedings has offered and has been accepted by the council], of the applicant in these proceedings seeking to cooperate on a joint security arrangement with Mr Gallagher’s premises.

10 Mr Gallagher indicated that as he was not bound and as there would be a period of time after a consent is given to the applicant before the new premises became operational, he was happy to enter into cooperative discussions with all parties who would be involved in security of the precinct within which both premises were located. In that respect he indicated he expected that such discussions would involve the council, the police, the applicant in these proceedings and himself and his management and advisers.

11 I therefore have formally recorded the fact that, although he was not and cannot be a party to these proceedings, Mr Gallagher had indicated to me a preparedness this morning to enter into those discussions. Whether they lead anywhere or not a matter upon which I should not speculate because it is unusual in these proceedings for a Commissioner of the Court to undertake separate discussions with a third party who is not part of the proceedings. Mr Gallagher’s adviser was asked this morning to confirm to me that the comments I have just made were to be regarded as being “on the record” and capable of being recorded in this decision and he agreed that that was the case.

12 I have dealt perhaps at some greater length than might ordinarily be the case with those issues because it is my view that the constructive way this has been approached by the parties and also the preparedness by Mr Gallagher to enter into future discussions contains the potential seeds of a significant public benefit if those joint security arrangements can be realised between all operational parties involved in security in this precinct – that is the police and the two licensed premises with the local regulatory authority, the council, also being involved.

13 However, I should make it clear for the purpose of this decision that, in a colloquial sense, any co-operative arrangement with PJ Gallagher’s would be “the icing on the cake” and is not necessary for the purposes of me being satisfied as to the appropriateness of the plan of management and the regime that is now before me for the purposes of granting development consent.

14 Ppublic safety issues were the primary matters that were the course of discussion during the s 34(3) part of this process. Other matters relating to sustainability and waste management and engineering issues relating to entry of water into the basement car parking [because of the proximity of an adjacent creek] have been dealt with to the satisfaction of the council and I need not deal with them in any more intense a fashion than noting this agreement.

15 I should make it clear, in conclusion, that I am independently satisfied that the applicant is proposing an acceptable basis upon which development consent should be given and that the opportunity for a co-operative arrangement with PJ Gallagher’s will be a bonus in the public interest, if it is able to be achieved, as I am satisfied it is the desire of the applicant and the council coupled with the willingness of Mr Gallagher to take part in those discussions.

16 Finally, I observe that my preparedness to adopt the hours, patron numbers and other operational elements that have been agreed to between the parties in these proceedings does not involve and should not be concluded to have involved me drawing any conclusion that any other operational regime as to hours, patron numbers and the like would not have been appropriate. I have not been asked to consider anything other than the agreed operational pattern in terms of patron hours, numbers, security and the like that have been agreed to between the parties as appropriate.

17 I am therefore satisfied, under all the circumstances, that I should uphold the appeal and grant development consent in terms of the conditions that have been settled between the parties and orders to that effect will be issued and the exhibits which comprise the plans of the proposal will be retained.

Tim Moore
Senior Commissioner