Land and Environment Court New South Wales Medium Neutral Citation: B & S Fitness Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1422 Hearing dates: Conciliation Conference 22 May, 5, 12, 25 June 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders: (1) The appeal is upheld; (2) Development Consent is granted to development application No D/2023/519 for alterations to use the premises as a gym, including new signage and new proposed trading hours between 6.00am and 6.10pm Monday to Friday and 8.00am to 10.00am Saturday, at 278 Palmer Street, Darlinghurst, subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPEAL – gym – signage – trading hours - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Industry and Employment) 2021, ss 3.6, 3.8, Pt 3.3, Chs 2, 3 Sydney Local Environmental Plan 2012, cl 5.10 Texts Cited: Sydney Development Control Plan 2012 Sydney Community Participation Plan Category: Principal judgment Parties: B & S Fitness Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: C Rose (Solicitor)(Applicant) P Canning (Solicitor)(Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2023/335770 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Council of the City of Sydney (the Council) of development application No D/2023/519 (the DA) for alterations to use the existing premises as a gym, including new signage and proposed new trading hours between 6.00am and 6.10pm Monday to Friday and 8.00am to 10.00am Saturday, at 278 Palmer Street, Darlinghurst, being Lot 1 in DP 1223833 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Council's chambers. 3. 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 and which addressed the Council's contentions. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the existing gym use, new signage and hours of trade, subject to the conditions at Annexure A. Background Facts 1. The Site is located at 278 Palmer Street, Darlinghurst, and comprises Lot 1 in Deposited Plan 1223833. The existing building on the Site is currently occupied at the ground floor level by a gym, operating without development consent but generally in accordance with what is sought by the development application. 2. The DA was refused by Council on 14 August 2023 and the appeal was lodged on 23 October 2023. On 5 September 2023, Council filed its Statement of Facts and Contention (SOFC). The Council's contentions included amenity – noise and vibration; design excellence; and insufficient information (waste matters). The parties agree that all contentions have now been resolved by the preparation of an amended Acoustic Assessment and Plan of Management as detailed in the conditions at Annexure A. 3. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the SOFC. Satisfaction as to Jurisdiction 1. Regarding jurisdiction and taking into account the parties assessment and advice in the Statement, I am satisfied in regard to the following relevant matters. Section 4.15(a)(i) of the EPA Act 1. For the purposes of s 4.15(1)(a) of the EPA Act, the consent authority is required to take into consideration the provisions of any environmental planning instrument. The consent authority is therefore required to take into consideration the State Environmental Planning Policies as outlined below. State Environmental Planning Policy (Industry and Employment) 2021 1. On 1 March 2022, the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment) commenced. The Site is not located within the land identified on the Land Application Map for the purposes of Chapter 2. Chapter 3 Advertising and Signage applies to the Site and the DA. For the purposes of s 3.6 of the SEPP Industry and Employment, the proposed development is: a. consistent with the objectives of Chapter 3 as set out in section 3.1(1)(a), in that the proposed signage; and b. the signage satisfies the assessment criteria specified in Schedule 5. 1. For the purposes of Part 3.3 and s 3.8 of the SEPP Industry and Employment, the proposed signage is not 'advertisement', but rather 'signage'. Sydney Local Environmental Plan 2012 1. The Site is zoned R1 General Residential under the Sydney Local Environmental Plan 2012 (Sydney LEP). A gymnasium, which is a type of indoor recreation facility, is permissible with consent in the R1 General Residential Zone. The proposed alterations and use do not propose to alter the height or floor space ration of the existing building. The proposed development complies with the objectives of the R1 Zone. 2. The site is identified as being located within the East Sydney Heritage Conservation Are (map reference C13) on the Heritage Map in the Sydney LEP. The site is identified as a contributing building on the Building Contributions Map in the Sydney Development Control Plan 2012. No changes are proposed to the structure or external appearance of the building and so cl 5.10 of the Sydney LEP is not applicable. Public Participation 1. For the purposes of s 4.15(1)(d) and (e) of the EPA Act, the consent authority is required to take into consideration any submissions made in accordance with the EPA Act or Environmental Planning and Assessment Regulation 2021, and the public interest. 2. The DA was notified between was notified between 27 June 2023 and 19 July 2023, in accordance with the requirements of the City's Community Participation Plan. Eleven Submissions were received. Council considers the matters raised by the submissions have been addressed in the amended documents provided. Conclusion 1. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 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. 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 orders: 1. The appeal is upheld; 2. Development Consent is granted to development application No D/2023/519 for alterations to use the premises as a gym, including new signage and new proposed trading hours between 6.00am and 6.10pm Monday to Friday and 8.00am to 10.00am Saturday, at 278 Palmer Street, Darlinghurst, subject to the conditions contained in Annexure A. L Byrne Acting Commissioner of the Court ********** Annexure A 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: 25 July 2024