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

1. 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).

2. 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).

3. 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.

4. 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 ….”.

5. The Site is on the corner of Oxford Street and Denison Street Bondi Junction, and it is currently occupied by a 14-storey mixed use building containing the pub at ground level, and commercial and residential uses above. Vehicular access to the six levels of basement parking is provided from Denison Street.

Figure 1: Aerial photograph of the area with subject Site coloured in red (Source: NearMaps and taken from Council’s Statement of Facts and Contentions filed 19 June 2024).

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 and 17 October 2024. I presided over the conciliation conference.

7. 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 upholding the appeal, and approving the Modification to the DA, subject to conditions.

8. 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(2) of the EPA Act to uphold the appeal and approve the Modification to the DA. 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 and explained how they been satisfied, as set out below:

1. The Modification Application was made pursuant to s 4.55(2) of the EPA Act, and lodged with Council on 14 February 2024.

2. The Modification was made with the consent of the owner MHH Project Pty Ltd) in accordance with s 98(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

3. The Modification was notified for 14 days from 23 February 2024 in accordance with Council’s Community Participation Plan 2019, and s 4.55(2)(c) of the EPA Act. Three submissions were received.

4. On 23 April 2024 Council refused the Modification pursuant to s 4.55(2) of the EPA Act.

5. The Class 1 Application was filed on 6 May 2024 in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.

6. Section 4.55(2)(a) provides that I must be “satisfied 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)”:

1. The Modification seeks to modify the operational hours of the pub known as The Mill Bondi Junction on Sundays from 10am to 10pm to from 10am to Midnight. The pub is currently permitted to trade 7am to Midnight on Mondays to Saturdays, and 10am to 10pm on Sundays.

2. The Modification does not propose any physical works to be carried out on the Site.

3. The modified hours of operation for Sundays will be contained within condition 44 of the DA, and condition 44 is a ‘reviewable condition’ under its terms.

4. I have compared the Modification with the DA as originally approved, and after applying the tests in Arrage v Inner West Council [2019] NSWLEC 85 at [24] and Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112], find that the DA which is to be modified will be substantially the same as the original DA.

5. I agree with the parties that the Modification is substantially the same as the original DA, with an extension of 2 hours on Sundays for trading, and note that during those 2 hours the number of patrons attending the pub will be reduced from 250 to 100 patrons.

7. The Council has considered the matters raised in submissions as required by s 4.55(2)(d) of the EPA Act, which resulted in an updated Plan of Management dated 17 October 2024 (Updated POM) and amended conditions of consent. I also note that the updated POM enacts provisions to ensure minimum acoustic and amenity impacts on surrounding residential developments.

8. In accordance with s 4.55(3) the parties have considered the matters of relevance to the Modification under s 4.15(1) of the EPA Act, as well as the reasons given by the consent authority for the grant of the DA that is sought to be modified, and concluded the Modification is worthy of approval.

9. The ‘pub’ benefits from an hotel licence. The extended trading hours on Sundays for the Site are consistent with the standard trading hours for an hotel licence under the Liquor Act 2007, which allows trading up to 12.00am on Sundays.

10. The pub has not received substantiated complaints during its operations. The extended trading hours would be subject to the existing reviewable conditions of the development consent, that is conditions 44 and 45, which enable Council to take appropriate action should substantiated complaints be made against the ‘pub’ during the life of its operations. Council imposed conditions 44 and 45 pursuant to s 4.17(10B) of the EPA Act. Such action could, in accordance with the procedure laid out in the conditions 44 and 45 and regulated by the EPA Act, involve restricting the ‘pub’ to the base trading hours specified in condition 43 of the DA.

11. The patron capacity will be restricted to a maximum of 100 patrons between 10pm and 12.00am on Sundays and special management measures within these hours on Sundays that are outlined on pages 14 and 15 of the Updated POM will also require a dedicated staff member to monitor and counsel patrons at the entrance/exit on the corner of Oxford Street and Denison Street of the ‘pub’ to depart the premises in a quiet and orderly manner.

12. The mechanisms and measures outlined in sub-par 10 and 11 above provide safeguards to minimise impacts upon the amenity of nearby residential properties during the extended trading hours on Sundays. I perused the 3 submissions lodged with Council in response to notification of the Modification, and note that at the commencement of the s 34 conciliation conference on site no objectors attended to make oral submissions.

9. 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.

10. As set out above, 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. Pursuant to s 34(3) of the LEC Act, and s 4.55(2) of the EPA Act, I shall uphold the appeal, and approve the Modification subject to conditions in Annexure A.

11. The Court orders:

1. The Applicant is granted leave to rely upon the amended Plan of Management dated 17 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.

M Peatman

Acting Commissioner of the Court

167665.24 Annexure A

167665.24 Annexure B

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Decision last updated: 05 November 2024