Land and Environment Court New South Wales Medium Neutral Citation: KX Operations Pty Limited v The Council of the City of Sydney [2021] NSWLEC 1221 Hearing dates: Conciliation conference on 9 April 2021 Date of orders: 04 May 2021 Decision date: 04 May 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld; (2) The Modification Application D/2003/765/I, seeking to modify development consent D/2003/765 in relation to the property at 248 William Street, Potts Point NSW 2011 (Lot 1 DP 201712), is approved and the development consent is modified as set out in the conditions of consent in Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Sydney Development Control Plan 2012 Category: Principal judgment Parties: KX Operations Pty Limited (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: C McEwen SC (Applicant) M Mallos (Solicitor) (Respondent) Solicitors: Bulford Legal Pty Limited (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2020/36465 Publication restriction: No Judgment 1. COMMISSIONER: KX Operations Pty Limited (the Applicant) has appealed the deemed refusal by the Council of the City of Sydney (the Respondent) of its modification application (D/2003/765/I) made under cl 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act), to amend 13 conditions and delete a further 14 conditions within the consent (D/2003/765) (the Proposed Modification) concerning works in relation to, and the operation of, the Kings Cross Hotel at 248 William Street, Kings Cross (the Subject Site). 2. The Kings Cross Hotel has a consent to operate 24 hours per day with a total capacity of 1,300 patrons on the ground floor and 200 patrons on each of the other levels. 3. The Subject Site is a heritage item (item number I1194) under the provisions of Sydney Local Environmental Plan 2012 (SLEP) and is zoned B4 (Mixed Use) under the provisions of SLEP. 4. The appeal comes to the Court pursuant to s 8.9 of the EP&A Act and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 8.13 of the EP&A Act. 5. The Court had 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 2021, and I presided over the conciliation conference. 6. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of 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 the Court upholding the appeal and granting consent to the Applicant's development application, 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. 9. Under the provisions of s 4.55(2) of the EP&A Act there are jurisdictional matters that must be satisfied in order for the Court to have power to approve the Applicant's modification application, and that these requirements have been satisfied as follows: 1. the Parties have confirmed, and I am 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 in satisfaction of the provisions of s 4.55(2)(a) of the EP&A Act; 2. the Parties have confirmed, and I accept, that there is no need to consult the Minister pursuant to any requirement under s 4.55(2)(b) of the EP&A Act; 3. in relation to the provisions of s 4.55(2)(c) of the EP&A Act, the Parties have advised, and I accept, that, consistent with the provisions of Sydney Development Control Plan 2012 (SDCP), notification of the modification application was not required as approval of the amendments sought would not increase environmental impacts arising from the modified consent; 4. as notification of the Applicant's modification application was not required under the provisions of SDCP, there were no submissions to be considered in relation to the provisions of s 4.44(2)(d) of the EP&A Act. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 8.13 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.13 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. The Court orders that: 1. The appeal is upheld; 2. The Modification Application D/2003/765/I, seeking to modify development consent D/2003/765 in relation to the property at 248 William Street, Potts Point NSW 2011 (Lot 1 DP 201712), is approved and the development consent is modified as set out in the conditions of consent in Annexure A. ………………………….. M Chilcott Commissioner of the Court Annexure A (479413, 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: 04 May 2021