Whitehouse Properties Pty Limited v Waverley Council

[2019] NSWLEC 1214

Land and Environment Court

New South Wales

Medium Neutral Citation:	Whitehouse Properties Pty Limited v Waverley Council [2019] NSWLEC 1214
Hearing dates:	Conciliation Conference on 9 April 2019; 3 May 2019; 9 May 2019
Date of orders:	16 May 2019
Decision date:	16 May 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) Leave is granted to the Applicant to amend Modification Application No. DA-626/2002/F to rely on the plans and documents referred to in Condition 1 of the attached conditions being Annexure A to these orders. (2) The appeal is upheld. (3) Modification Application No. DA-626/2002/F (as amended) is approved pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 on the conditions as set out in Annexure A.
Catchwords:	MODIFICATION APPLICATION – extension of a trial period for operating hours of a hotel – alterations and additions to the existing hotel
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Whitehouse Properties Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) M Staunton (Respondent)   Solicitors: Riley Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/237635
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application DA-626/2002/F to modify Development Consent No DA-626/2002/E for the Beach Road Hotel at 99-111 Glenayr Avenue, Bondi Beach (also known as 71 Beach Road, Bondi Beach) by Waverley Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 April 2019, 3 and 9 May 2019. I presided over the conciliation conference.

3. 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.

4. 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 4.16 of the EPA Act to grant consent to the modification application.

5. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act, as follows:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is 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), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

6. I am satisfied on the submissions of the parties that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted by the Court on 19 November 2004.

7. The Court notes the agreement of the parties that there is to be no application for costs.

Orders

8. The orders of the Court are:

1. Leave is granted to the Applicant to amend Modification Application No. DA-626/2002/F to rely on the plans and documents referred to in Condition 1 of the attached conditions being Annexure A to these orders.

2. The appeal is upheld.

3. Modification Application No. DA-626/2002/F (as amended) is approved pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 on the conditions as set out in Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (133 KB, pdf)

**********