[2011] NSWCA 349
Stokes v Waverley Council (No 2) (2019) 242 LGERA 392
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCA 349
Stokes v Waverley Council (No 2) (2019) 242 LGERA 392
Judgment (3 paragraphs)
[1]
Judgment
COMMISSIONER: Since 1879, a hotel or pub has stood at the corner of Bridge Street and Macquarie Street, in Windsor. From 1973, it has been known as the Jolly Frog Hotel, but it was severely damaged by fire in January 2014, which resulted in the destruction of the roof and first floor of the remnant Victorian building, and substantial damage to the remaining 20th century additions. MM Atelier Architects now seeks development consent for alterations or additions to the pub, conservation works to restore the heritage item, the construction of a car park, and landscaping works. The development application was refused by Hawkesbury City Council on 28 October 2022. These proceedings are an appeal against that decision, pursuant to s 8.7 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 development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [17] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
Following an adjournment of the hearing of the appeal, 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 28 June 2024. I presided over the conciliation conference.
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 was acceptable to the parties. The signed agreement was filed the same day.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by agreed submissions on Jurisdictional Matters. I have considered the contents of the submissions, together with the documents referred to therein, the documents tendered in the hearing, the joint reports of the parties' experts, and the documents that are referred to in condition 2 of Schedule B of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent subject to conditions of consent is a decision 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 as each of the jurisdictional preconditions identified by the parties is met, for the reasons that follow.
The site, legally identified as Lot 102 DP 1151845 and known as 25 Bridge Street, Windsor is split across both the E2 Commercial Centre and RE2 Private Recreation zones, pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP). The proposed development is for the purpose of a pub, which is a type of food and drink premises. "Food and drink premises" are a nominated permissible use in the RE2 zone, and fall within the definition of "retail premises" which is a type of "commercial premises", a nominated permissible use in the E2 zone.
The development application form was endorsed with the signature and consent of the owners of the site, and accompanies the Class 1 Application (Volume 1, Tab 1). The development the subject of the development application does not propose works on adjoining land. Whilst the stormwater plans depict a path for the disposal of stormwater over adjoining land, those plans are provided to allow an assessment of the off-site impacts of the proposed development (see Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349), but the works on the adjoining land do not form part of the development to which the development application relates. The works on the adjoining land will require the obtaining of an easement (to create a property right for stormwater drainage, so as to avoid a nuisance), which is the subject of a deferred commencement condition. The works on adjoining land may also require a development consent or other planning approval, and do not form part of the development for which consent is agreed to be granted. The fact that the stormwater works are required for this development does not mean they form part of the land to which the development relates: see Stokes v Waverley Council (No 2) [2019] NSWLEC 174 at [75]-[77] and [86]-[88]. As such, the site is the only land to which the development relates.
In relation to the jurisdictional matters that arise under the HLEP:
The proposed development complies with the height development standard in that part of the site to which the standard applies, and there is no floor space ratio development standard that applies to the site.
The site contains a listed heritage item, and cl 5.10(4) of the HLEP requires consideration of the effect of the development on the heritage significance of the heritage item. I am satisfied that, based on the Heritage Impact Statement prepared by City Plan dated August 2019, the Schedule of Conservation Works dated 24 June 2024, and the joint heritage expert reports of 3 June and 27 June 2024, elements of the existing building will be protected and conserved as a result of the proposed development, and, together with the restoration works that form part of the proposed development, this will have a beneficial impact on the heritage item and its significance.
Clause 5.21 of the HLEP does not apply to the proposed development, as a result of the savings provision in cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, and the earlier clause concerning flood planning was repealed by the State Environmental Planning Policy Amendment (Flood Planning) 2021 (see also Hawkesbury Riverside Retreat Limited v Hawkesbury City Council [2022] NSWLEC 1359 at [10(5)]). There are therefore no mandatory considerations with respect to flood planning. Nevertheless, the proposed development includes a draft Flood Emergency Response Plan to ensure that there is no adverse risk to life or property, which will be updated through compliance with the deferred commencement conditions.
The site is mapped as having Class 4 and 5 Acid Sulfate Soils and may require works more than 2m below the natural ground surface for deep piling works for the new building area. As such, cl 6.1 of the HLEP applies. Consistent with the requirements of cl 6.1(3), an Acid Sulfate Soils Management Plan has been prepared for the proposed development, dated 30 May 2024, and I am satisfied that any disturbance of acid sulfate soils will be managed to minimise adverse impacts.
The development application includes earthworks. Based on the Erosion and Sediment Control Plan dated 27 June 2024 and the minor extent of the earthworks, I have considered the matters set out in cl 6.2(3) of the HLEP.
The site is mapped as containing a portion of land identified as 'connectivity between significant vegetation' on the Terrestrial Biodiversity Map, such that cl 6.4 of the HLEP applies. Based on the site view, and the Statement of Environmental Effects dated August 2019, I have considered the matters in cl 6.4(3) and I am satisfied, pursuant to cl 6.4(4)(a), that the development is designed, sited and will be managed to avoid any significant adverse environmental impact.
I am satisfied that the essential services required by cl 6.7 of the HLEP are either available for the proposed development, or adequate arrangements have been made to make them available when required.
The site has frontage to Bridge Street and Macquarie Street, which are both classified roads, and the proposed development can be considered traffic generating development. As such, both cll 2.119 and 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) apply. Based on the traffic impact assessment report dated 24 July 2019, the subsequent assessments undertaken by McLaren Traffic dated 8 February 2023 and 28 March 2024, and the expert report of Mr Steal signed 30 May 2024:
I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development, consistent with cl 2.119(2)(b), and
I have considered the matters required to be considered by cl 2.122(4)(b)(ii) and (iii).
I have considered the design of the development, I am satisfied that the development includes measures to ameliorate noise and vehicle emissions within the site of the development, consistent with cl 2.119(2)(c) of the SEPP TI.
Further, consistent with cl 2.122(4)(a) and (b)(i) of the SEPP TI, written notice of the development application was provided to Transport for NSW on 26 August 2019 and on a number of occasions subsequent to that, following amendments to the application. I have considered the content of each letter received from Transport for NSW in response, dated 13 September 2019, 15 March 2022, 21 March 2023, 18 September 2023 and 3 May 2024.
In relation to the remaining jurisdictional matters identified by the parties, which arise for consideration under other instruments:
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned and a Detailed Site Assessment dated 30 May 2024. The report confirms that the site is able to be remediated in accordance with a Remedial Action Plan dated 30 May 2024 and, therefore, will be made suitable for the proposed development.
Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the MUSIC model by Taylor Consulting lodged with the Class 1 Application (Vol 3, Tab H, 21), the Erosion and Sediment Control Plan dated 27 June 2024, and the Remedial Action Plan dated 30 May 2024, I have considered the matters required to be considered by s 9.3 of the SEPP B&C.
The development application was notified between 12 September and 10 October 2019, and again on a number of occasions following its amendment. In total, three written submissions were received following the original notification and subsequent notifications. I have considered the issues raised in those written submissions.
The proposal is integrated development pursuant to s 91 of the Water Management Act 2000. The Natural Resources Access Regulator has provided general terms of approval under s 91 of the Water Management Act, and those terms of approval are incorporated into the conditions, at condition 1.
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 requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
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 s 4.15 of the EPA Act.
The Court orders that:
1. Leave is granted, pursuant to sections 64(1)(b) and 65 of the Civil Procedure Act 2005 (NSW) to amend the class 1 Application to insert the name of the Applicant as follows: RPSM Holdings Pty Ltd ACN 100 875 125 trading as MM Atelier Architects.
2. The appeal is upheld.
3. Development Application DA0330/19 for the redevelopment of the Jolly Frog Hotel located at Lot 102 in Deposited Plan 1151845 otherwise known as 25 Bridge Street Windsor NSW 2756 is determined by the grant of development consent subject to conditions contained in Annexure 'A'.
[2]
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Decision last updated: 04 July 2024