Land and Environment Court New South Wales Medium Neutral Citation: Whitehouse Properties Pty Ltd v Waverley Council [2022] NSWLEC 1273 Hearing dates: Conciliation Conference on 28 April 2022, 10 and 25 May 2022 Date of orders: 30 May 2022 Decision date: 30 May 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application DA-626/2002/G is approved and development consent DA-626/2002 granted on 18 November 2004 to vary the mix of patrons between the upper and lower levels of the Beach Road Hotel 71 Beach Road Bondi is modified in the terms set out in Annexure A. (3) As a consequence of the modification, development consent DA-626/2002 is subject to the consolidated, modified conditions of consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – hotel – modification to condition of development consent requiring acoustic upgrade – removal of trial period for increased patron numbers on first floor – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9, 8.10, Sch 1 s 10 Environmental Planning and Assessment Regulation 2000, cl 119 Environmental Planning and Assessment Regulation 2021, Sch 6 cl 3 Land and Environment Court Act 1979, s 34 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Whitehouse Properties Pty Limited v Waverley Council [2004] NSWLEC 645 Texts Cited: Waverley Community Development Participation and Consultation Plan 2019 Category: Principal judgment Parties: Whitehouse Properties Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: C Ireland (Applicant) M Staunton with N Hammond (Respondent) Solicitors: Riley Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/144501 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: The Applicant appeals from the Council's determination of its modification application DA-626/2002/G (Modification Application) for the modification of development consent DA/626/2002 granted by the Court on 18 November 2004: Whitehouse Properties Pty Limited v Waverley Council [2004] NSWLEC 645 (Consent). 2. The Consent relates to the Beach Road Hotel (the Hotel). The Consent varied the mix of patrons between the upper and lower levels of the Hotel. The Consent included conditions which limited the total number of patrons in the Hotel to 1215 and increased the number of patrons permitted on the first floor from 465 to 650 for a 1 year trial period. That trial period has been the subject of a number of extensions and continues to the present time. 3. The Modification Application (as amended on 10 November 2021) seeks to amend condition 5B of the Consent to require certain acoustic upgrade works recommended by the Applicant's acoustic engineer to be completed and certified within 18 months of the date that the Modification Application is approved, or within 6 months of the end of restrictions on patron numbers at the Hotel due to any COVID-19 related regulation, whichever is the later. The Modification Application also seeks to amend condition 12 of the Consent to remove the existing trial period referred to in par [2] above which will allow a total of 1215 patrons in the Hotel at any time, comprising a maximum of 750 on the ground floor and 650 on the first floor. 4. The Hotel is located on the corner of Beach Rd and Glenayr Ave, Bondi and is situated on the land described as Lots 21, 22 and 23 DP 8193, Lots A, B, C and D DP 307035, Lot 3 DP 321980 and Lot B DP 342041 and is known as 71 Beach Rd Bondi (Site). 5. The Modification Application was made to the Council on 30 April 2020 and was refused by the Council on 22 May 2020. On 21 May 2021, the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 6. The hearing of the appeal commenced before me on 8 and 9 December 2021 and was listed for further hearing on 27, 28 and 29 April 2022. On 27 April the parties informed the Court that they were close to reaching an agreement as to the resolution of the appeal and the Court granted an adjournment of the hearing to enable the parties to confer. On 28 April 2022 the Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which took place on 28 April 2022, 10 and 25 May 2022. I presided over the conciliation conference. 7. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 25 May 2022 and was supported by a Jurisdictional Statement provided by the parties on the same date. The agreement involves the Court modifying the Consent in the way described in par [3] above. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 9. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The appeal was brought pursuant to s 8.9, and was made within the time required by s 8.10, of the EPA Act. 2. The Applicant is the owner of the Site and therefore a person entitled to act on the Consent and to make the Modification Application in accordance with s 4.56(1) of the EPA Act. 3. 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 was modified, this being the test required by s 4.56(1)(a) of the EPA Act. The Consent varied the mix of numbers of its patrons between the upper and lower levels of the hotel subject to conditions which require the Hotel to be operated in accordance with an approved plan of management and which otherwise regulate the operations and impacts of the hotel. A comparison between the originally approved development for the use of the Hotel and the development as proposed to be modified demonstrates that there is no radical transformation of the development, and the essence of the development remains the same: Arrage v Inner West Council [2019] NSWLEC 85. I am satisfied that the development as proposed to be modified will remain substantially the same as the development for which the Consent was originally granted. 4. The notification requirements of s 4.56(1)(b) of the EPA Act have been met. Clause 119 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continues to apply to the Modification Application despite the repeal of the EPA Regulation by the Environmental Planning and Assessment Regulation 2021: see Sch 6, cl 3. Clause 119(2) of the EPA Regulation provides that a modification application of the kind the subject of this appeal must be notified or advertised for the minimum period specified in s 10 of Sch 1 to the EPA Act. The minimum period specified in that section is the period (if any) determined by the consent authority in accordance with the relevant community participation plan. The parties have informed the Court, and I accept, that the Modification Application was publicly notified between 2 and 16 July 2021 in accordance with the Waverley Community Development Participation and Consultation Plan 2019. 5. I am also satisfied that the notification requirements of s 4.56(1)(c) have been met. That provision requires the consent authority to notify, or make reasonable attempts to notify, each person who made a submission in respect of the relevant development application the subject of the Consent of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person. The parties have informed the Court that: 1. the Council does not have a record of the persons who made a submission in respect of the original development application in 2004 nor of those persons who objected to that development application during the Court proceedings; 2. the Council has examined its records in relation to the addresses of the persons who were notified of the original development application and compared those records with the addresses of the persons who were notified of the Modification Application; and 3. all of the persons residing at addresses that were notified of the original development application were also notified of the Modification Application. In these circumstances I am satisfied that the Council has made reasonable attempts to notify the persons who made a submission in respect of the original development application the subject of the Consent. 1. Following the public notification of the Modification Application referred to above, the Council received seven submissions. The Council's Statement of Facts and Contentions summarises the issues raised by those submissions as follows: 1. Lack of information submitted with the modification application. 2. Acoustic impacts 3. Overcrowding 4. Improved operations required or a change in business model to ensure hotel operates harmoniously with surrounding locality. 5. Covid restrictions make it hard to judge the operations or effectiveness of most previous consent, given hotel has not been able to operate in the usual manner. 6. Security personnel are not proactive in minimising impacts to surrounding residents. 7. Over 1200 patrons leaving hotel at end of night spilling into adjacent streets make it challenging for security and police to control. 8. Antisocial behaviour/inebriated and disorderly patrons leaving venue is very common. 9. Drunken behaviour of patrons when leaving venue (screaming, shouting, urinating, vomiting, running across road, smoking, vandalise nearby property). 10. Nearby residents feel unsafe from hotel operations, particularly with large number of patrons leaving venue late at night. 11. Issues have been ongoing for many years – resident fatigue to have to continually complain/object. Residents are suffering "victim fatigue". 12. Traffic management particularly at closing time (intoxicated patrons spill onto road, no dedicated traffic system to get patrons home safely, motorists driving through area run the risk of running patrons over). 13. Increased traffic and parking impacts. 14. Unclear what acoustic measures are sought to be changed from previous consent. 15. Residents are not acoustic experts – yet are clear there remains noise issues when hotel is operating. 16. Nearby building (54 Beach Road) installing double glazed windows in an attempt to reduce acoustic impacts from hotel operations. 17. Increased litter from patrons smoking and leaving cigarette butts around venue. 18. Reduced residential amenity and quality. 19. Request hotel be restricted to reduced hours of operation to 10pm – only resume extended trade on evidence or practical means by the hotel to control their patrons. 1. Oral evidence was also given to the Court on 8 December 2021 by three local residents. That evidence did not raise any additional issues to those set out in the written submissions but elaborated on the residents' concerns as previously expressed in those written submissions. 2. I have taken these submissions into consideration. I am satisfied that the proposed modifications to condition 5B, which will involve the carrying out of acoustic upgrade works, will reduce the amenity impacts of the approved development. A condition will also be imposed requiring the Applicant to implement a revised plan of management which, amongst other things, will assist in managing the impacts of hotel patrons on the amenity of the local area. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act. I have considered the reasons given by the Court for the grant of the Consent as required by s 4.56(1A) and am satisfied that the proposed modification of the Consent is consistent with those reasons. 3. The Court orders that: 1. The appeal is upheld. 2. Modification application DA-626/2002/G is approved and development consent DA-626/2002 granted on 18 November 2004 to vary the mix of patrons between the upper and lower levels of the Beach Road Hotel 71 Beach Road Bondi is modified in the terms set out in Annexure A. 3. As a consequence of the modification, development consent DA-626/2002 is subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (259848, pdf) Annexure B (393830, 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: 30 May 2022