Land and Environment Court New South Wales Medium Neutral Citation: The Artists' Outlook Pty Ltd v Wollongong City Council [2021] NSWLEC 1305 Hearing dates: Conciliation conference on 21 April 2021 Date of orders: 01 June 2021 Decision date: 01 June 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA-2019/644 for the use of part of an existing motel as a café/restaurant (premises) at Lot 2 Deposited Plan 578279 known as 222-226 Lawrence Hargrave Drive, Thirroul subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – café/restaurant within existing motel – existing use rights – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.65, 8.7 Environmental Planning and Assessment Regulation 2000 cl 41 Land and Environment Court Act 1979 ss 30, 34 Wollongong Local Environmental Plan 2009 cl 7.3 Texts Cited: Illawarra Planning Scheme Ordinance 1968 Category: Principal judgment Parties: The Artists' Outlook Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: A Pearman (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: RMB Lawyers (Applicant) Wollongong City Council (Respondent) File Number(s): 2020/7171 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 refusal by Wollongong City Council (Council) of development application DA-2019/644 for the use of part of an existing motel as a café/restaurant (premises) at Lot 2 Deposited Plan 578279 known as 222-226 Lawrence Hargrave Drive, Thirroul (site). 2. The parties undertook conciliation pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act) in September and October 2020 but the matter was not resolved, and the conciliation was terminated. 3. On 21 October 2020 the Registrar fixed the matter for hearing on 21 – 23 April 2021. The Chief Judge delegated the hearing to me pursuant to s 30 of the Court Act. 4. I arranged for a case management conference on 19 April 2021 because it appeared that the matter was not ready for hearing. At the case management conference, the parties informed me that they were working towards a resolution of the matter and were seeking to undertake conciliation on 21 April 2021, the first day scheduled for the hearing. I informed the parties that that was not an acceptable approach and that the matter was fixed for hearing for 3 days and the hearing would proceed in the absence of an agreement between the parties pursuant to s 34 of the Court Act. 5. The hearing commenced on site and I heard evidence from concerned local residents, principally about the noise from the premises in the past. It was clear that the conduct of the premises in the past was more in the nature of a music venue, causing nuisance both from the noise emanating from the premises and also from patrons on the premises and their coming and going. 6. After hearing that evidence, I was informed by the parties that they had reached agreement in principle as to the determination of the appeal and sought to adjourn the hearing and move the Court for an order for further conciliation pursuant to s 34 of the Court Act. I adjourned the hearing until 3pm on 21 April 2021. 7. The Registrar ordered that there be further conciliation and the Chief Judge delegated that power to me. Accordingly, on 21 April 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Court Act. At the conciliation conference, the parties confirmed that they had reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. 8. The proposed decision was to grant development consent subject to conditions and in reliance upon the flooding, acoustic, traffic and engineering information which had been provided by the Applicant in late March 2021, together with an amended plan of management. The conditions include a limitation on the number of patrons, the prohibition of live music and the limitation of other music to background level and only from within the premises. Importantly for the Council, the proposed development consent is limited to permit the operation of the café/restaurant for a period of two years. 9. 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. 10. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. 11. The site is zoned R2 Low Density Residential pursuant to Wollongong Local Environmental Plan 2009 (WLEP 2009). Development for the purposes of "hotel and motel accommodation" (which embraces the present use) and "food and drink premises" (the proposed use) is prohibited in the R2 zone. The Applicant relies on existing use rights pursuant to Div 4.11 of the EP&A Act and cl 41(1)(e) of the Environmental Planning and Assessment Regulation 2000 (EP&A Reg) to enliven the power of the Court to grant development consent. 12. The existing motel was granted development consent on 22 September 1969 pursuant to Illawarra Planning Scheme Ordinance 1968. Upon the gazettal of WLEP 2009, "hotel and motel accommodation" was prohibited on the site, and the use for the purpose of "hotel and motel accommodation" became an existing use as that phrase is defined in s 4.65(b) of the EP&A Act. 13. The development application proposes a change of use from one commercial use to another pursuant to cl 41(1)(e) of the EP&A Reg. I am satisfied that each of "hotel and motel accommodation" and "food and drink premises" is a commercial use as that term is defined in cl 41(3) of the EP&A Reg and that the change does not involve any of the matters set out in cl 41(2) of the EP&A Reg. 14. Accordingly, I am satisfied that there is power to grant development consent pursuant to Div 4.11 of the EP&A Act and cl 41(1)(e) of the EP&A Reg. 15. Clause 7.3 of WLEP 2009 applies to the site because the site is identified as "Flood Planning area" on the Council's Flood Planning Map. The Detailed Flood Study prepared by Rienco Consulting dated 23 March 2021 addresses the matters about which I am required to be satisfied pursuant to cl 7.3(3) of WLEP 2009 and I am so satisfied. 16. The parties have not raised, and I am not aware of any other jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 17. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA-2019/644 for the use of part of an existing motel as a café/restaurant (premises) at Lot 2 Deposited Plan 578279 known as 222-226 Lawrence Hargreaves Drive, Thirroul subject to the conditions in Annexure A. ………………………… P Clay Acting Commissioner of the Court Annexure A (175521, 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: 01 June 2021