Universal Mill Bondi Pty Ltd v Waverley Council - [2024] NSWLEC 1706

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:
D Plowman (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hatzis Cusack Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/167665
Publication restriction: No

Judgment

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).
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).
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.
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 ….”.
The Site is on the corner of Oxford Street and Denison Street Bondi Junction, and it is currently occupied by a 14-storey mixed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 1706
Decision Date: 05 November 2024

CaseChat Overview and Summary

Universal Mill Bondi Pty Ltd, the applicant, sought judicial review of a decision by the Waverley Council to refuse a development application concerning the Mill Hotel at Bondi Junction. The application was heard in the Land and Environment Court of New South Wales. The applicant contested the council's refusal of a modification to the original development application, which sought to amend the approved development consent to allow for an extension of the hotel's operating hours and certain internal alterations.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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: D Plowman (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hatzis Cusack Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2024/167665
Publication restriction:	No