Land and Environment Court New South Wales Medium Neutral Citation: KDA Enterprise Pty Ltd v Newcastle City Council [2022] NSWLEC 1069 Hearing dates: Conciliation conference on 9 December 2021 and 31 January 2022 Date of orders: 21 February 2022 Decision date: 21 February 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1)The Applicant is to pay the Respondent's costs, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000. (2)The appeal is upheld. (3)Development Application DA 2020/01212 seeking consent for alterations and additions to existing licensed premises currently operating as The Beach Hotel (including various internal renovations, new amenities and external terrace) at 99 Frederick Street, Merewether is determined by granting development consent subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to hotel – conciliation conference – agreement between the parties – orders Legislation Cited: Coal Mine Subsidence Compensation Act 2017, Pt 3 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Newcastle Local Environmental Plan 2012, cll 2.3, 5.10, 6.1, 6.5, Sch 5 State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Category: Principal judgment Parties: KDA Enterprises Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel: A Pearman (Applicant) T To (Respondent) Solicitors: Hatzis Cusack Lawyers (Applicant) Newcastle City Council (Respondent) File Number(s): 2021/228983 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Newcastle City Council (the Respondent) of Development Application No. DA 2020/01212 seeking consent for alterations and additions to existing licensed premises currently operating as The Beach Hotel (including various internal renovations, new amenities and external terrace) at 99 Frederick Street, Merewether (the site). 2. On 9 December 2021, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties' advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters. 4. On 31 January 2022, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 4 February 2022, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 5. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the Newcastle Local Environmental Plan 2012 (NLEP), the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) and State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). 8. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 9. The site is located within the B1 Neighbourhood Corridor zone as identified in the NLEP, in which the uses proposed are permitted with consent, including commercial premises, function centre and registered club, according to the land use table at cl 2.3 of the NLEP and in which the zone objectives are: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To provide for residential development that maintains active retail frontages in order to contribute to a safe, attractive, friendly, accessible and efficient pedestrian environment. • To maintain the hierarchy of urban centres throughout the City of Newcastle and not prejudice the viability of centres within Zone B2 Local Centre or Zone B3 Commercial Core. 1. The site is identified by Sch 5 of the NLEP as an item of local heritage significance, and so the provisions of cl 5.10 of the NLEP apply. On the basis of the agreement of the heritage experts, and the information contained in the Supplementary Heritage Assessment prepared by EJEArchitecture, dated 17 January 2022, I accept that the alterations and additions will not compromise the heritage significance of the site. 2. While the site is identified in the Acid Sulfate Soils map at cl 6.1(2) of the NLEP as class 5 soils within 500m of class 4 soils, the site is not below 5m Australian Height Datum and the proposed development does not propose excavation that would trigger the provisions at cl 6.1 of the NLEP. 3. As the proposal is in respect of a licensed premises, I have considered the impact of the proposed development on public safety in accordance with cl 6.5 of the NLEP. I consider the public safety to be addressed by the following: 1. The Plan of Management prepared by Mr Mark Delaney dated 31 January 2022, including, but not limited to: 1. Preventing patrons from leaving the venue with alcohol in opened containers (Section 13); 2. The requirement for the Licensee to consider, and proactively respond to ensuring the amenity of the neighbourhood, including the convening of a Working Group comprising hotel management, local police, and residents to meet at least 4 times per year Section 16); 3. A complaint management system that includes the provision of the Licensee's mobile telephone number to residents (Section 18); 4. Provision for security and supervision of patrons within, and in the vicinity of, the premises including, but not limited to external patrols at intervals of no greater than 30 minutes (Section 24). 1. 'Crime Prevention through Environmental Design Report' (CPTED) prepared by Rathmore Group (undated). 2. Conditions of consent that limit the number of patrons on the site, and within certain areas of the site such as external terraces, and require the continuous operation of CCTV and lighting. State Environmental Planning Policy (Coastal Management) 2018 1. As the site is located within the Coastal Environment area, and the coastal use area, the provisions of cll 13 and 14 of the Coastal Management SEPP apply. 2. As the proposal seeks consent for alterations and additions that are largely within the 3 dimensional envelope of the existing built form, and are agreed by the relevant experts to not adversely impact the heritage significance of the site, I am satisfied the development is designed, sited, and will be managed to avoid an adverse impact on those matters set out at cll 13(1) and 14(1) of the Coastal Management SEPP. Coal Mine Subsidence Compensation Act 2017 1. Part 3 of the Coal Mine Subsidence Compensation Act 2017 requires approval for certain development within mine subsidence districts. Stamped plans and a Notice of Determination dated 20 October 2020 confirm approval by Subsidence Advisory NSW. Conclusion 1. I note here that as the proposal is for alterations and additions to an existing building, the land does not require remediation to be made suitable for the purpose for which the development is proposed to be carried out, pursuant to cl 7 of the SEPP 55. . 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application Number 2020/01212, with the amended plans and documents filed with the Court, and uploaded on the NSW Planning Portal on 4 February 2022. 2. The Applicant has filed the amended development application with the Court on 4 February 2022. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000. 2. The appeal is upheld. 3. Development Application DA 2020/01212 seeking consent for alterations and additions to existing licensed premises currently operating as The Beach Hotel (including various internal renovations, new amenities and external terrace) at 99 Frederick Street, Merewether is determined by granting development consent subject to the conditions set out in Annexure 'A'. …………………… T Horton Commissioner of the Court Annexure A (214875, 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: 21 February 2022