UPO Pty Ltd Trading as Urban Planning Outcomes v Wyong Shire Council

[2010] NSWLEC 1283

Land and Environment Court

of New South Wales

CITATION:	UPO Pty Ltd Trading as Urban Planning Outcomes v Wyong Shire Council [2010] NSWLEC 1283 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT UPO Pty Ltd T/as Urban Planning Outcomes RESPONDENT Wyong Shire Council
FILE NUMBER(S):	10835; 10837; 10905 of 2009
CORAM:	Moore SC
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT APPLICATION :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wyong Local Environmental Plan 1991
DATES OF HEARING:	4 June 2010
EX TEMPORE JUDGMENT DATE:	4 June 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton, barrister INSTRUCTED BY Gilbert + Tobin Solicitors RESPONDENT Mr J Reilly, solicitor HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

4 June 2010

10835 of 2009 UPO Pty Ltd T/as Urban Planning Outcomes v Wyong Shire Council
10837 of 2009 UPO Pty Ltd T/as Urban Planning Outcomes v Wyong Shire Council
10905 of 2009 UPO Pty Ltd v Wyong Shire Council

JUDGMENT

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

1 SENIOR COMMISSIONER: These three matters come before me for hearing and determination following a conciliation conference conducted by a Commissioner at which agreement was not able to be reached between the parties. Subsequently, on 23 April 2010, by agreement between the parties, the Acting Registrar referred the matter to mediation. The outcome of that mediation is that the parties have reached agreement in all three matters.

2 As it is not possible for that agreement to be given effect pursuant to s 34(3) of the Land and Environment Court Act 1979 (as the Commissioner who conducted the conciliation conference has now retired), the matter comes to me to be dealt with by way of proposed consent orders to be entered into by the parties.

3 The premises that are the subject of all three matters are recorded in the Wyong Local Environmental Plan 1991 (the LEP), as a listed heritage item in the Wyong precinct, and is listed on sch 1 of the LEP for those purposes - being located at Alison Road, Wyong, and comprising the former Wyong Dairy Cooperative Complex, which is listed as an item of local heritage significance.

4 In matter number 10835 of 2009, the proposed use for which consent is sought, is to use part of a building as a café; and in matter 10837 of 2009, to use another building forming part of the complex and the area immediately adjacent to it, as a recreation facility (including a gymnasium; multipurpose hall; bicycle and kayak hire facility); and the third matter 10905 of 2009, is a proposal to use an existing vacant building on the site for local produce stalls.

5 I have been advised (and see no reason to question the fact) that each of those proposed uses is a prohibited use for the zone where these premises are located. However, cl 36 of the LEP provides that the council may grant consent to the use for any purpose of a building that is a heritage item or if the land on which the building is erected is so listed, even though the use would otherwise be prohibited by the LEP, if the consent authority is satisfied as to two matters:

• First, that the proposed use would not adversely affect the heritage significance of the item, and would have little or no adverse affect on the amenity of the area; and
• Second, that the conservation of the building depends on the granting of the consent.

6 Mr Reilly, solicitor for the council, tells me that the council is satisfied that each of those tests is met. There are no objections to any of the proposals and, as a consequence, I accept, as I have no basis to contest it, the opinion formed by the council that those two tests are satisfied with respect to each of the proposed uses that arise from these three proceedings.

7 Clause 36 of the LEP also permits the council to deal with a number of other matters concerning such conservation incentives, but those matters are not relevant for the purposes of these proceedings. The consequence of the foregoing (and the absence of any objectors in any of the proceedings) is that there is no basis upon which I could decline to give effect to the agreement between the parties. It follows, although there will be a necessity for formal orders to be prepared to give effect to the decisions that I have reached in these matters, the orders in each of the matters will be.

8 In matter 10835 of 2009, by consent, the Court orders

1. Appeal is upheld; and
2. Development Application No: 648\2009 for the fit out of existing Building 4 for use as a cafe including the area for outdoor seating for approximately 120 people on the existing deck and roof terrace at Wyong Milk Factory, 141 - 155 Alison Road, Wyong, contained in Lots 31, 32 and 33, DP 5019, Lots 12, 13, 14, 15 and 16 in DP 25532, and Lot 7 in DP 21462, is granted development consent subject to the conditions set out in annexure A.

9 In matter 10837 of 2009, the orders of the Court by consent are as follows,

1. The appeal is upheld; and
2. Development Application No: 597\2009 for the use of existing Building 9, the area immediately adjacent to it as a recreation facility including a gymnasium, multipurpose hall, bicycle and kayak hire facility within existing building 12 at Wyong Milk Factory, Alison Road, Wyong, contained in Lots 31, 32, and 33 DP 5019, Lots 12, 13, 14, 15 and 16 in DP 255532 and Lot 7 there DP 21462, is granted development consent subject to the conditions set out in annexure A.

10 In matter 10905 of 2009, the orders of the Court by consent are as follows,

1. The appeal is upheld; and
2. Development Application No: 982\2009 for the use of an existing vacant building for local produce stalls at the Wyong Milk Factory, 141 - 155 Alison Road, Wyong, contained in Lots 31, 32 and 33 DP 5019, lots 12, 13, 14, 15 and 16 in DP 255532, and Lot 7 in DP 21462, is granted development consent subject to the conditions set out in Annexure “A”.

Senior Commissioner

27/01/2011 - Punctuation - Paragraph(s) Cover sheet