Wilken Coopers Pty Ltd v The Council of the City of Sydney

[2023] NSWLEC 1754

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilken Coopers Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1754

Hearing dates:

Conciliation conference held on 1 December 2023

Date of orders:

08 December 2023

Decision date:

08 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application D/2022/780, which seeks a one-year trial period for extended hours of operation for part of the ground floor of the Coopers Hotel, on Lot 1 Deposited Plan 780078, also known as 221 King Street, Newtown, is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,800 within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION – change in hours to existing development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 2.3, 6.10, 6.21C

Texts Cited:

Sydney Community Participation Plan 2019

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Wilken Coopers Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Cowper (Solicitor) (Applicant)
J Mort (Solicitor) (Respondent)

Solicitors:
Mills Oakley
Sydney City Council

File Number(s):

2022/366185

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2022/780 (the DA) by the City of Sydney Council (the Council), which seeks a (trial) for extending operating hours of an existing hotel, on Lot 1 Deposited Plan 780078, also known as 221 King Street, Newtown (the site).

Background

2. The DA was lodged with Council on 3 August 2022, which seeks to trial extended operating hours of trading for an existing approved development (D/2006/392), which has been subject to a number of modifications. The existing development relates to the Coopers Hotel. The trial is sought for a one-year period with extended hours of operation between 12:00 midnight and 2:00 AM on Mondays to Saturdays; and, between 10:00 PM and 12:00 midnight on Sunday, for part of the ground floor of the Coopers Hotel.

3. The DA was determined as refused by Council on 11 November 2022. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held before me as Duty Commissioner.

5. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by objectors the DA have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application D/2022/780, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to D/2022/780, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Sydney Local Environmental Plan 2012 (SLEP):

1. Pursuant to cl 2.3 of the SLEP, the proposed residential development is situated over land zoned B2 Local Centre. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the SLEP.

2. The DA is supported by an amended Statement of Environmental Effects, prepared by Design Collaborative, dated July 2023, and an Acoustic Report, prepared by Renzo Tonin & Associates, dated 19 May 2023. The DA is also supported by a Plan of Management, prepared by Design Collaborative, dated August 2023. The proposed external alterations to the building seeking to address noise related to the extended hours of operation are considered minor, and do not impact the design significance of the building, pursuant to cll 5.10 and 6.21C of the SLEP. The management of the site during the extended hours of operation seeks to address any adverse noise impact.

9. The original and amended DA were publicly notified in accordance with the Sydney Development Control Plan 2012 (SDCP) and Council’s Community Participation Plan 2019, with five and four submissions received, respectively. Further to this the objectors were advised by Council of the amendments adopted in reaching the agreement.

10. The relevant requirements of the SDCP have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

11. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent

12. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application D/2022/780 can be granted consent.

15. 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.

16. The Court notes that:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application D/2022/780, as follows:

1. Drawing No. D.011 Roof Plan (Rev B), prepared by Luchetti Krelle,

2. Drawing No. D.201 External Elevation – For Acoustic Screening (Rev C), prepared by Luchetti Krelle,

3. Drawing No. D.202 Acoustic Screening Details (Rev B), prepared by Luchetti Krelle,

4. Amended Statement of Environmental Effects (Reference no. 221728.12S), prepared by Design Collaborative, dated July 2023,

5. Acoustic Report (Rev 5), prepared by Renzo Tonin & Associates, dated 19 May 2023, and

6. Plan of Management (Rev 8, Reference no. 221728.5P), prepared by Design Collaborative, dated 2 August 2023.

17. The Applicant has filed the amendments to the Development Application D/2022/780 with the Court on 24 November 2023.

18. The Court orders that:

1. The appeal is upheld.

2. Development Application D/2022/780, which seeks a one-year trial period for extended hours of operation for part of the ground floor of the Coopers Hotel, on Lot 1 Deposited Plan 780078, also known as 221 King Street, Newtown, is determined by the grant of consent, subject to the conditions in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,800 within 28 days of the date of these orders.

Sarah Bish

Commissioner of the Court

Annexure A

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Amendments

14 December 2023 - Pursuant to rule 36.17 of the UCPR, amendment to correct typographical error of Respondent's name at [16(1)]

Decision last updated: 14 December 2023