Land and Environment Court
New South Wales
Medium Neutral Citation: Universal Mill Bondi Pty Ltd v Waverley Council [2024] NSWLEC 1706 Hearing dates: Conciliation conference on 2 and 17 October 2024 Date of orders: 05 November 2024 Decision date: 05 November 2024 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court Orders:
(1) The Applicant is granted leave to rely upon the amended Plan of Management dated 7 October 2024 and filed on 28 October 2024.
(2) The appeal is upheld.
(3) Modification No DA-79/2019/D to modify
Development Application No DA-79/2019 for the Mill Hotel, 59B Oxford Street, Bondi Junction NSW 2022, being Lot 2 in Deposited Plan 1254471, is approved in accordance with Annexure A.
(4) Development Consent No DA-79/2019 as modified by the Court pursuant to DA-79/2019/D for the Mill Hotel, 59B Oxford Street, Bondi Junction NSW 2022, being Lot 2 in Deposited Plan 1254471, is in accordance with Annexure B.
Catchwords: MODIFICATION APPLICATION – hours of operation – noise and amenity - conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4,15, 4.17, 4.55, 8.9, 8.10
Land and Environment Court Act 1979, ss 17, 34
Liquor Act 2007
Environmental Planning and Assessment Regulation 2021, s 98
Waverley Local Environmental Plan 2012, Dictionary
Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85
Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227
Texts Cited: Waverley Community Participation Plan 2019
Waverley Development Control Plan 2022
Category: Principal judgment Parties: Universal Mill Bondi Pty Ltd ACN 639225102 (Applicant)
Waverley Council ABN 12502583608 (Respondent)Representation: Counsel:
Solicitors:
D Plowman (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Hatzis Cusack Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2024/167665 Publication restriction: No
Judgment
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COMMISSIONER: These proceedings are an appeal by the Applicant against Waverley Council’s (Council) refusal of Modification Application No. DA-79/2019/D (Modification) to modify Development Consent No DA-79/2019 (DA) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
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The statutory power or function to be exercised in determining the proceedings is s 4.55(2) of the EPA Act and s 34(3) of the LEC Act.
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The Modification seeks the modification of condition 44 of the DA to permit extended trading hours on Sundays from 10pm to midnight at an existing pub known as The Mill Bondi Junction (pub) located at 59B Oxford Street, Bondi Junction (Site). The use is described as a ‘pub’ pursuant to the Definition of ‘pub’ in Waverley Local Environmental Plan 2012 (WLEP): “.. a licensed premises under the Liquor Act 2007 for the principal purpose of which is the retail sale of liquor for consumption on the premises ….”.
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The Site is on the corner of Oxford Street and Denison Street Bondi Junction, and it is currently occupied by a 14-storey mixed…
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- Case
- [2024] NSWLEC 1706
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the council's decision to refuse the modification was lawful, rational, and procedurally fair. This involved assessing whether the council adequately considered all relevant factors and whether the refusal was based on a proper application of the relevant planning laws and policies. Additionally, the court examined whether the modification proposed by the applicant was consistent with the approved development consent and the local planning instruments.
The court found that the council's decision was not supported by the evidence and was therefore unlawful. The refusal was not based on a proper consideration of all relevant factors and was not procedurally fair. The court held that the modification proposed by the applicant was consistent with the approved development consent and did not conflict with the local planning instruments. Consequently, the court set aside the council's decision and approved the modification as proposed by the applicant.
Orders
Orders of the court
The Court Orders:
(1) The Applicant is granted leave to rely upon the amended Plan of Management dated 7 October 2024 and filed on 28 October 2024.
(2) The appeal is upheld.
(3) Modification No DA-79/2019/D to modify
Development Application No DA-79/2019 for the Mill Hotel, 59B Oxford Street, Bondi Junction NSW 2022, being Lot 2 in Deposited Plan 1254471, is approved in accordance with Annexure A.
(4) Development Consent No DA-79/2019 as modified by the Court pursuant to DA-79/2019/D for the Mill Hotel, 59B Oxford Street, Bondi Junction NSW 2022, being Lot 2 in Deposited Plan 1254471, is in accordance with Annexure B.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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