Land and Environment Court New South Wales Medium Neutral Citation: 89 Ebley Street Pty Limited v Waverley Council [2021] NSWLEC 1365 Hearing dates: Conciliation conference on 27 May 2021 Date of orders: 22 June 2021 Decision date: 22 June 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is granted leave to rely on the amended Architectural Plans, Plan Nos DA00 (Issue P2), DA010 (Issue P3), DA101 (Issue P3), DA201 (Issue P3), DA 301 (Issue P3) prepared by Squillace Architects dated 27 May 2021 and annexed at Annexure A. (2) The Applicant is granted leave to rely on the revised Plan of Management (Rev O) dated 27 May 2021 annexed at Annexure B. (3) The Applicant is granted leave to rely on the amended Assessment of Population Capacity, prepared by City Plan and dated 25 May 2021 annexed at Annexure C. (4) The appeal is upheld. (5) Development Application DA-195/2020, as amended, for the change of use of part of the building from approved café and bottleshop to an extension of the hotel use, known as "The Grand", to include a sports bar and smoking area, including internal works, at the ground floor level of the shop top housing development at 73-89 Ebley Street Bondi Junction NSW is approved subject to the conditions annexed at Annexure D. Catchwords: DEVELOPMENT APPEAL – change of use –conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Waverley Local Environmental Plan 2012, cl 2.3 & 6.5 Texts Cited: Waverley Development Control Plan 2012 Category: Principal judgment Parties: 89 Ebley Street Pty Limited (Applicant) Waverley Council (Respondent Representation: Counsel: A Pickles SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2020/236248 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application number DA-195/2020 seeking development consent for change of use of part of the building from approved café and bottleshop to an extension of hotel uses, known as "The Grand", to include a sports bar and smoking area, including internal works, (the Proposed Development) at the ground floor level of the shop top housing development at 73-89 Ebley Street, Bondi Junction legally described as Lot 2 DP 100092 (the Site). 2. The matter was listed for hearing commencing on 27 May 2021 with an onsite inspection of the Site which is located in zone B4 Mixed Use under the Waverley Local Environmental Plan 2012 (WLEP) and forms part of the overall site which was recently redeveloped for a four-storey shop top housing development comprising ground floor tenancies and residential units above pursuant to the development consent DA-572/2015 granted by the Court on 30 June 2017. The development incorporates a hotel, known as "The Grand" (formerly the "Cock N' Bull Hotel"). The Site, is the western-most part of the commercial or non-residential aspect of the ground floor level of the shop top housing development. It fronts both Ebley Street to the North and Mackenzie Street to the West. 3. The Court heard from 3 resident objectors and from the NSW Police during the onsite inspection. 4. The parties' experts conferred and prepared a joint report. Following consideration of the agreements reached between the experts the parties requested that the hearing be adjourned and for the matter to be listed for conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). 5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 May 2021. I presided over the conciliation conference. 6. 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 granting leave to the Applicant to rely on amended plans and documents, upholding the appeal and granting development consent to the development application subject to conditions. 7. 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 development application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. Permissibility and cl 6.5 requiring active frontages on certain land as set out in the WLEP; and 2. The provisions of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). 1. The parties explained how the jurisdictional prerequisites have been satisfied in a written submission on jurisdictional matters as follows: 1. In relation to permissibility the land is zoned B4 under WLEP and is permissible with consent. The objectives of the B4 zone are as follows: ● To provide a mixture of compatible land uses. ● To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. ● To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core. 1. These objectives are not pre-conditions to the grant of consent, but cl 2.3(2) requires consideration of them. The experts have considered these objectives in the joint report and have concluded that the objectives are met. 2. Clause 6.5 of WLEP requires active frontages on certain land in the Bondi Junction Centre as shown on the Active Frontages Map. The Site is not shown on the Active Frontages Map. In contrast, the Site is shown as a secondary active frontage in the Waverley Development Control Plan 2012 (clause 1.7 of D1), but this is not a jurisdictional requirement. 3. Clause 7 of SEPP 55 provides as follows: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. 1. In this respect the Site was approved for mixed use development and has been constructed in accordance with a consent granted by the Court. The requirements of cl 7 of SEPP 55 were considered and determined by the original grant of consent. The Site is not contaminated. 1. I am 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 and I adopt the reasons provided by the parties detailed above in this judgment. 2. 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. 3. The Court orders: 1. The Applicant is granted leave to rely on the amended Architectural Plans, Plan Nos DA00 (Issue P2), DA010 (Issue P3), DA101 (Issue P3), DA201 (Issue P3), DA 301 (Issue P3) prepared by Squillace Architects dated 27 May 2021 and annexed at Annexure A. 2. The Applicant is granted leave to rely on the revised Plan of Management (Rev O) dated 27 May 2021 annexed at Annexure B. 3. The Applicant is granted leave to rely on the amended Assessment of Population Capacity, prepared by City Plan and dated 25 May 2021 annexed at Annexure C. 4. The appeal is upheld. 5. Development Application DA-195/2020, as amended, for the change of use of part of the building from approved café and bottleshop to an extension of the hotel use, known as "The Grand", to include a sports bar and smoking area, including internal works, at the ground floor level of the shop top housing development at 73-89 Ebley Street Bondi Junction NSW is approved subject to the conditions annexed at Annexure D. ……………………. E Espinosa Commissioner of the Court Annexure A (2002843, pdf) Annexure B (363398, pdf) Annexure C (161828, pdf) Annexure D (423433, 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: 22 June 2021