Land and Environment Court New South Wales Medium Neutral Citation: Iris Capital Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1148 Hearing dates: Conciliation conference on 27 January 2021, 10, 17 and 24 February 2021 Date of orders: 25 March 2021 Decision date: 25 March 2021 Jurisdiction: Class 1 Before: Clay AC Decision: Refer to orders at [10] Catchwords: DEVELOPMENT APPLICATION – appeal against two conditions of consent – two adjoining pub premises – deletion of conditions requiring no internal access between the premises – plans of management – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Iris Capital Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: A Whealy/R McCann (Solicitors) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2020/284992 Publication restriction: Nil Judgment 1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the imposition of two conditions of the development consent granted on 28 May 2020 (consent) to development application No DA/2019/1184 for alterations and additions to two pubs known as the Columbian Hotel and the Gaslight Inn which are adjoining at 117-125 Oxford Street and 278 Crown Street Sydney respectively. 2. The development application included an interconnecting door between the two pubs. The appeal was limited objection to the imposition of two conditions of consent – condition 2(c) which required the deletion of an interconnecting door, and condition 6(a)(iv) which made reference to the interconnecting door. 3. On 27 January 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. The proposed decision was to grant leave to amend the development application, rely upon amended and updated plans of management for the pubs and to grant development consent with the interconnecting door reinstated and some consequential changes to the conditions. 5. It took some time to prepare the necessary documents to give effect to the agreement and the conciliation continued on 10, 17 and 24 February 2021. 6. On 24 February 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle, together with the supporting documents. 7. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council's contentions concerning the interconnection between the hotels. 8. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 9. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. The appeal only concerns conditions of consent relating to the interconnecting door and that is the only issue to which the parties have directed their attention, as has the Court. The parties observe that the Council has obviously granted the development consent the subject of the appeal, that there was no question that it had jurisdiction so to do, and there are no jurisdictional barriers to the grant by the Court of development consent in the amended form. 10. I make the following orders: 1. The Applicant is granted leave to rely on the following documents: 1. Amended architectural plans prepared by Squillace listed in the below table: Drawing Number Drawing Name Date DA-050 Issue C Existing & Demolition Ground Floor Plan 18 November 2020 DA-100 Issue C Proposed Ground Floor Plan 18 November 2020 1. Plan of Management for The Columbian, prepared by Hamptons Property Service Pty Ltd, dated 24 January 2021 (V11). 2. Plan of Management for the Gaslight Inn, dated 13 January 2021. 1. The appeal is upheld. 2. Development consent is granted upon the terms of Development Consent No. D/2019/1184 as approved by the Council on 28 May 2020 and amended on 19 August 2020, for alterations and additions and continued use of the pub known as 'The Columbian' Hotel at 117-125 Oxford Street and the alterations to the pub known as "The Gaslight Inn" at 276-278 Crown Street Darlinghurst, and modified in the following manner: 1. Insertion of Condition 1A as follows: (1A) Sites to which conditions apply The following conditions apply to The Columbian Hotel and the Gaslight Inn: (A) Condition 1 Approved Development (B) Condition 2A Interconnecting Door (C) Condition 6 Plan of Management (D) Condition 7 Copies of Consents and Management Plans (E) Condition 8 Incidents – Recording and Notification (F) Condition 23 Materials for Making Good (G) Condition 31 DILAPIDATION REPORT – MINOR (H) Condition 32 ASBESTOS REMOVAL WORKS (I) Condition 47 Occupation Certificate to be submitted (J) Condition 48 Hours of work and noise – outside CBD (K) Condition 49 USE of intrusive appliances not approved (L) Condition 50 ENCROACHMENTS – NEIGHBOURING PROPERTIES (M) Condition 52 SURVEY CERTIFICATE AT COMPLETION (N) Condition 53 COVERING OF LOADS (O) Condition 54 NO OBSTRUCTION OF PUBLIC WAY (P) Condition 55 LOADING AND UNLOADING DURING CONSTRUCTION The following conditions only apply to The Columbian Hotel: (Q) Condition 2 Design Modifications (R) Condition 3 Hours of Operation (S) Condition 4 Maximum Capacity of Persons (T) Condition 5 Operational Conditions (U) Condition 9 Security – Hotels (V) Condition 10 Surveillance Cameras (W) Condition 11 Neighbourhood Amenity (X) Condition 12 No Spruiking Noise (Y) Condition 13 Queuing Outside the Premises (Z) Condition 14 Glass Crusher (AA) Condition 15 Noise from Glass Removal (BB) Condition 16 Noise – Entertainment (CC) Condition 17 Noise – Commercial Plant / Industrial Development (DD) Condition 18 Noise Limiters (EE) Condition 19 Compliance with the Acoustic Report Prior to Construction and or Occupation Certificates (FF) Condition 20 Acoustic Verification – Mechanical Plant (GG) Condition 21 General Heritage (HH) Condition 22 Heritage Conservation Works (II) Condition 24 Photographic Archival Documentation (Minor Works) (JJ) Condition 25 Use of Heritage Consultant (KK) Condition 26 Building Works to Comply with BCA – Heritage Buildings or Buildings within Conservation Areas (LL) Condition 27 Structural Integrity of Retained Building Elements (MM) Condition 28 Protection of Public Features in Conservation Areas (NN) Condition 29 BCA compliance – Alterations and Additions – Upgrade of Building is Required – BCA Report has been provided (OO) Condition 30 ACCESS AND FACILITIES FOR PERSONS WITH DISABILITIES (PP) Condition 33 CONSTRUCTION AND FITOUT OF FOOD PREMISES (QQ) Condition 34 COOLROOMS (RR) Condition 35 GREASE AND LIQUID WASTE TRAPS (SS) Condition 36 HOT WATER SERVICE (TT) Condition 37 NOTIFICATION OF CONDUCT OF FOOD BUSINESS (UU) Condition 38 PERSONAL LOCKERS (VV) Condition 39 TOILETS FOR FOOD HANDLERS (WW) Condition 40 WASTE STORAGE AREA (XX) Condition 41 MECHANICAL VENTILATION (YY) Condition 42 No charcoal or Solid fuel cooking (ZZ) Condition 43 DELIVERY OF GOODS (AAA) Condition 44 WASTE AND RECYCLING COLLECTION CONTRACT (BBB) Condition 45 WASTE/RECYCLING COLLECTION (CCC) Condition 46 APPLICATION FOR HOARDINGS AND SCAFFOLDING INSTALLED ON OR ABOVE A PUBLIC ROAD AND OPERATING HOISTING DEVICES INCLUDING BUILDING MAINTENANCE UNITS OVER A PUBLIC ROAD (DDD) Condition 51 ENCROACHMENTS – PUBLIC WAY 1. Amendment of Condition 1(a) as follows – 'Development must be in accordance with Development Application No. D/2019/1184 dated 25 October 2019 and the following drawings prepared by Squillace and Chris Jeffaries Charterbuild: Drawing Number Drawing Name Date DA-049 Issue B Existing Basement Floor Plan 20.02.2020 DA-050 Issue C Existing & Demolition Ground Floor Plan 20.02.2020 18.11.2020 DA-051 Issue C Existing & Demolition First Floor Plan 20.02.2020 DA-052 Issue C Existing & Demolition Second Floor Plan 20.02.2020 DA-053 Issue C Existing and Demolition Roof Plan 20.02.2020 DA-100 Issue DC Proposed Ground Floor Plan 20.02.2020 18.11.2020 DA-101 Issue D Proposed First Floor Plan 20.02.2020 DA-102 Issue D Proposed Second Floor Plan 20.02.2020 DA-103 Issue C Proposed Roof Plan 20.02.2020 DA-201 Issue C Proposed Oxford Street Elevation 20.02.2020 DA-202 Issue C Proposed Crown Street Elevation 20.02.2020 DA-301 Issue C Proposed Section 20.02.2020 DA-302 Issue C Proposed Section 20.02.2020 DA-901 Issue C Proposed External Finishes 20.02.2020 101 Revision A L2 Kitchen Plan 17.02.2020 102 Revision A L2 Bar Plan 17.02.2020 201 Revision A L0 Cashier Bar Plan 17.02.2020 and as amended by the conditions of this consent. 1. Deletion of Condition 2(c): 'The interconnecting door located on the eastern ground floor property boundary of No. 117-123 Oxford Street connecting to The Gaslight Inn is not approved and must be deleted.' 2. Insertion of Condition 2A, as follows: (2A) INTERCONNECTING DOOR (A) The interconnecting door located on the southern ground floor property boundary of The Columbian Hotel connecting to The Gaslight Inn Hotel is approved for patron access for a trial period of 1 year from the date of the issue of the Occupation Certificate. (B) A further application may be lodged to continue the operation of the interconnecting door not less than 30 days before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the trial will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police. 1. Modification of Condition 6 as follows: 'The use must always be operated / managed in accordance with the Plan of Management The Columbian, prepared by HAMPTONS PROPERTY SERVICES Pty Ltd and dated 24 January 2021 (V11) 19 August 2020 (V8) and the Plan of Management The Gaslight Inn Hotel, dated 13 January 2021 that has been approved by Council. In the event of any inconsistency, the conditions of this consent will prevail over the Plan of Management.' 2. Modification of Condition 20(b) as follows: 'Prior to issue of an Occupation Certificate, a final acoustic verification report must be and be submitted to the PCA and Council's Area Planning Manager for approval. The report must certify that any acoustic controls as recommended in the initial mechanical plant acoustic assessment report submitted prior to the issue of a Construction Certificate have been incorporated into the development and that that maximum individual and combined operational noise levels from commercial plant complies with the noise criteria outlined within the City of Sydney "Noise - Commercial Plant / Industrial Development" condition which forms part of the consent.' 1. As a consequence of Order (3), Development Consent No. D/2019/1184 (as modified) is subject to the consolidated, modified conditions of consent set out in Annexure "A". ………………………… P Clay Acting Commissioner of the Court Annexure A (293127, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2021