Land and Environment Court New South Wales Medium Neutral Citation: Hifu Investment Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1327 Hearing dates: Conciliation conference on 7 June 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No. D/2019/900 is modified in the terms set out in Annexure A. (3) Development Consent No. D/2019/900, as modified by the Court, is set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Sydney Local Environmental Plan 2012 Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Category: Principal judgment Parties: Hifu Investment Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: L Nurpuri (Applicant) J Mort (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2023/199973 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to a modification application with reference number D/2019/900/A under the City of Sydney Council (Council) record system. D/2019/900/A sought consent to modify a deferred commencement consent referenced as D/2019/900. D/2019/900/A was refused by Council on 7 June 2023. Hifu Investment Pty Ltd (applicant) is appealing this determination under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). Background 1. D/2019/900 approved the change of use of a ground floor tenancy to a recreation facility (indoor) and associated fit out works and signage at 1-5 Link Road, Zetland, legally identified as Lot 4 in DP 1234006 (site). The deferred commencement conditions related to traffic management and pedestrian safety; and linked to the completion of certain proposed upgrading works to the adjacent Epsom Road/Link Road intersection. 2. D/2019/900/A would remove the deferred commencement conditions imposed on D/2019/900 in their entirety and, in a sense, instead provide for imposition of a suite of other requirements concerned with providing for traffic management and pedestrian safety. Conciliation and agreement reached between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conference was held on 7 June 2024. I was appointed to preside. 2. Prior to the conference, the parties advised the Court that agreement had been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties, and that this decision involved a decision that the Court could have made in the proper exercise of its functions. The parties' decision involved the Court approving D/2019/900/A, as amended, in accordance with further agreed conditions. Jurisdiction 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 2. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the Council's "Jurisdictional Statement" which was provided during the conciliation conference, I am satisfied in regard to the matters listed below. 3. Having regard to s 4.55(2) of the EPA Act: 1. Mindful of s 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. On this, I accept the direct advice to this effect in the Jurisdictional Statement. More specifically I can readily find that the development application as modified would continue to provide an indoor recreational facility as a gym, albeit with some changes to the accessibility arrangements. The building form and use would remain 'essentially' or 'materially' the same. 2. The parties advise that there has been consultation and notification as per the requirements of subss 4.55(2)(b) and (c) of the EPA Act. I am advised that two submissions were received. The parties' Jurisdictional Statement outlined the substance of the submissions and how these have been considered. The requirements of s 4.55(2)(d) of the EPA Act have been met. 1. Having regard to s 4.55(3) of the EPA Act, I am advised by Council that consideration has been given to the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. These include the consideration of the provisions of Sydney Local Environmental Plan 2012. With respect to this instrument in particular, mindful of North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (481 D) and subsequent decisions, I note that there is no requirement for a jurisdictional finding of the Court in regard to such provisions. 2. Further, and again having regard to s 4.55(3) of the EPA Act, I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. This includes the nominated reasons for approval for D/2019/900 as indicated in the consent notice dated 7 July 2021, a copy of which was provided to me. Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. 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. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Notation 1. The Court notes: 1. That pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation) the applicant applied to the respondent consent authority for an amendment to modification application D/2019/900/A in accordance with the following plans and documents (collectively 'D/2019/900/A as amended'): 1. Amended Statement of Environmental Effects prepared by The Planning Lab dated 28 March 2024 2. Amended Plan of Management prepared by The Planning Lab dated 28 March 2024 3. Green Travel Plan (Rev 3) prepared by PDC consultants dated 14 May 2024; and 4. Vehicle and Pedestrian Traffic Impact Assessment (Rev 3) prepared by PDC Consultants dated 22 November 2023 1. That pursuant to s 113(4) of the EP&A Regulation the respondent consent authority has approved the application to amend D/2019/900/A. 2. The Applicant filed D/2019/900/A as amended with the Court on 27 May 2024. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. D/2019/900 is modified in the terms set out in Annexure A. 3. Development Consent No. D/2019/900, as modified by the Court, is set out in Annexure B. P Walsh Commissioner of the Court Annexure A Annexure B ********** 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: 18 June 2024