JDA Jannali Holdings Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1303

Land and Environment Court New South Wales

Medium Neutral Citation: JDA Jannali Holdings Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1303 Hearing dates: Conciliation conference on 29 May 2019 Date of orders: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is granted leave to amend their modification application in accordance with the plans referred to in condition 1 of Annexure "A". (2) The appeal is upheld. (3) Modification Application No. MA18/0312 varying conditions of consent relating to the trading operations of the Jannali Hotel at 34-38 Railway Crescent, Jannali is approved and the development consent (DA18/0222) is now subject to the modified conditions set out in Annexure "A". Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: JDA Jannali Holdings Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: T Hatzis, Hatzis Cusack Lawyers (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/328673 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by JDA Jannali Holdings Pty Ltd against the deemed refusal of an application to modify development consent number DA/18/0222 in respect of the fit out and use of premises as a pub at 34-38 Railway Crescent, Jannali NSW 2226. The modification application seeks variations to the conditions imposed on the operation of the pub, including a new Plan of Management, deleting required changes to the location of an external smoking area, deleting the trial period for trading hours between 10pm and 12midnight, correcting errors in the trading hours, correcting a note with respect to carrying liquor away from the pub, reductions to minimum security numbers and reductions to minimum CCTV requirements. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference. 2. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. 3. 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 29 May 2019. I presided over the conciliation conference. 4. Following 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the modification application in accordance with a new Plan of Management, and for the grant of the amended modification application, which results in a number of changes to the conditions of consent for the development. As the presiding Commissioner, I was satisfied that the decision was one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for reasons that there are no built form changes to the development and the modifications are confined to conditions concerning the management of the premises, minimum CCTV and security requirements, location of the smoking area, design changes for the canopy and landscaped area, and trading hours. 5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 7. The Court orders that: 1. The Applicant is granted leave to amend their modification application in accordance with the plans referred to in condition 1 of Annexure "A". 2. The appeal is upheld. 3. Modification Application No. MA18/0312 varying conditions of consent relating to the trading operations of the Jannali Hotel at 34-38 Railway Crescent, Jannali is approved and the development consent (DA18/0222) is now subject to the modified conditions set out in Annexure "A".