Steyne Hotel Operations Pty Ltd ATF Steyne Hotel Operations Trust v Northern Beaches Council

Texts Cited: Manly Development Control Plan 2013

Category: Principal judgment

Parties: Steyne Hotel Operations Pty Ltd ATF Steyne Hotel Operations Trust (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/296065

Publication restriction: No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the imposition of various conditions by the respondent in granting consent to the applicant’s development application No DA2023/1750 (Development Application) seeking consent for alterations and additions to the pub at 75 the Corso and 42 North Steyne, Manly, legally described as Lots 100-102 in Deposited Plan 1069144 and Lot 1 in Deposited Plan 1280856 respectively (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application as lodged with the respondent on 8 December 2023 sought consent for alterations and additions to the existing pub located on the Subject Land, including:

4. demolition;

5. structural amendments;

6. ground floor alterations, additions and refurbishment;

7. level 1 alterations;

8. level 2 alterations;

9. landscaping;

10. façade amendments;

11. roof amendments; and

12. acoustic treatments to beer garden.

13. The Development Application was notified between 18 December 2023 and 23 January 2024 and 17 submissions were received in response to the notification.

14. On 5 June 2024, the Development Application was approved by the Northern Beaches Local Planning Panel subject to conditions, including, relevantly, conditions 14, 27 and 34, which are extracted below:

“14. Conservation Management Plan

The CMP should be updated and all external and internal alterations should only be considered in conjunction with a professionally prepared CMP. Details demonstrating compliance with this condition are to be submitted to the Council’s Heritage Advisor for approval prior to commencement on site.

Reason: To ensure suitable protection of Heritage fabric and significance of the heritage item.

27. Noise Limiters

Prior to the issue of the Occupation Certificate, an acoustic consultant is to be engaged to set noise limiters to the venues internal sound systems located in all outdoor areas of the venue.

The acoustic consultant is to set the noise limiters to a level where the noise from the sound systems in all outdoor areas of the venue cannot be audible inside a habitable room of a residential dwelling.

The use of externally sources sound systems is not permitted in any outdoor areas of the venue.

Reason: To protect the noise amenity of nearby residential receivers.

34. Ongoing Noise Management

The ongoing management of the premises must be in full accordance with the Protection of the Environmental Operations Act 1997. Including but not limited to:

• Noise arising from patrons must not be audible within any habitable room of any neighbouring residential premises at any time.

• Noise arising from music, live entertainment or other such amplified sound must not be audible within any habitable room [sic] of any neighbouring residential premises at any time.

Reason: To ensure reasonable levels or amenity for adjoining residents in the surrounding area.

6. On 12 August 2024, the applicant commenced these Class 1 proceedings under s 8.7 of the EPA Act in respect of the imposition of condition 34. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

7. On 9 September 2023, the applicant filed an amended Class 1 form appealing the imposition of conditions 14 and 27, as well as condition 34.

8. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 22 January 2025 and adjourned on two occasions. I presided over the conciliation conference.

9. During the conciliation conference, the parties reached agreement as to the resolution of the proceedings. The decision agreed upon is for the grant of consent to the Development Application (amended again to include the Acoustic Statement prepared by Renzo Tonin, dated 9 August 2024) (Amended Development Application), subject to conditions of consent and in particular, the deletion of condition 14 and amendments to conditions 27 and 34. The signed agreement is supported by an agreed jurisdictional statement provided to the Court on 21 February 2025.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is 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 form this state of satisfaction for the reasons that follow.

Owner’s consent

12. The Development Application was accompanied by the consent of the owner of the Subject Land, being the applicant in the proceedings (see Class 1 Application, tab 1).

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I accept that the Subject Land is occupied by a historic building with known former uses that are unlikely to have led to contamination and that it is unlikely that the Subject Land has been contaminated from migrating contamination (Statement of Environmental Effects prepared by Gyde Consulting dated 27 November 2023 (SEE)). I am therefore satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Development Application.

State Environmental Planning Policy (Sustainable Building Index: BASIX) 2004

14. The parties agree that a BASIX Certificate was submitted with the Development Application and condition 3(b) of the Agreed Conditions requires fulfilment with the commitments set out in that certificate.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. The Subject Land is located within the Sydney Harbour Catchment and the provisions of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) therefore apply. I have had regard to the assessment carried out by the respondent in the Development Application Assessment Report under the heading “SEPP (Biodiversity and Conservation) 2021” in relation to the requirements of Ch 6 and am satisfied that the relevant provisions have been considered and satisfied.

Manly Local Environmental Plan 2013

16. The Subject Land is zoned E1 Local Centre pursuant to the Manly Local Environmental Plan 2013 (MLEP). The proposed development is permissible with consent in the E1 zone. I have had regard to the E1 zone objectives which are extracted below:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

• To encourage investment in local commercial development that generates employment opportunities and economic growth.

• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To minimise conflict between land uses in the zone and adjoining zones and ensure amenity for the people who live in the local centre in relation to noise, odour, delivery of materials and use of machinery.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To create urban form that relates favourably in scale and in architectural and landscape treatment to neighbouring land uses and to the natural environment.

17. The parties agree that the Amended Development Application is consistent with the objectives of the E1 zone.

18. Pursuant to cl 4.3 of the MLEP relating to height of buildings, the Subject Land is subject to a height limit of 10m and 12m in different parts of the site (Height Standard). The Development Application proposed a height of 13.9m, exceeding the Height Standard. The Development Application, as lodged, was accompanied by a cl 4.6 written request seeking to justify the exceedance of the Height Standard (see “Clause 4.6 Request - Height” prepared by Gyde Consulting dated 27 November 2023 – Class 1 Application, tab 5). This cl 4.6 request was accepted by the respondent as adequately demonstrating sufficient grounds for the height variation in its assessment of the Development Application. The amendments sought in this appeal to the conditions granted in the approval of the Development Application do not alter the proposed building height. Therefore, I am satisfied that cl 4.3 of the MLEP has been appropriately considered and addressed.

19. Clause 6.9 of the MLEP relating to the foreshore scenic protection area applies to the Amended Development Application as the Subject Land is shown as “Foreshore Scenic Protection Area” on the Foreshore Scenic Protection Area Map. The parties agree, and I accept, that the Amended Development Application will not have an impact on the visual aesthetics of the foreshore Manly and that the matters in cl 6.9(3) of the MLEP have been considered.

20. Pursuant to cl 6.15 of the MLEP regarding to tourist and visitor accommodation, development consent must not be granted to development for tourist and visitor accommodation unless the consent authority is satisfied that the development will not provide accommodation to the same person for a period of more than three consecutive months. The parties agree, and I accept that, Condition 29 of the Agreed Conditions ensures that the existing and approved tourist and visitor accommodation will not be provided to the same person for a period of more than three consecutive months.

21. Clause 6.16 of the MLEP relating to gross floor area in certain areas applies to the Amended Development Application as the Subject Land is identified as “Gross Floor Area for Certain Commercial Premises” on the Key Sites Map. Clause 6.16(4) relevantly provides that “development consent must not be granted for development on land to which this clause applies if the gross floor area of any retail premises on the land would exceed 1,000 square metres”. The Development Application proposed a gross floor area for the pub of 2,070m2. The Development Application, as lodged, was accompanied by a cl 4.6 written request seeking to justify the floor area exceedance. This cl 4.6 request was accepted by the respondent as adequately demonstrating sufficient grounds for the gross floor area variation (see Development Application Assessment Report at “Clause 6.16 Gross Floor Area in Certain Areas”). The amendments sought in this appeal to the conditions granted in the approval of the Development Application do not alter the proposed gross floor area. Therefore, I am satisfied that cl 6.16 of the MLEP has been appropriately considered and addressed.

22. Clause 6.21 of the MLEP applies to the Amended Development Application as the proposal involves the use of land as licensed premises under the Liquor Act 2007. Pursuant to cl 6.21(2) of the MLEP, the consent authority must consider the impact of any noise nuisance likely to be generated by the proposed development on residential accommodation in the vicinity of the proposed development. The parties agree, and I accept that, the assessment and recommendations set out in the Acoustic Assessment prepared by Renzo Tonin & Associates dated 26 September 2023, in conjunction with Conditions 11, 25, 27, 27A, 32 and 34 of the Agreed Conditions satisfy the provisions of cl 6.21 of the MLEP.

Manly Development Control Plan 2013

23. The parties agree, and I accept that, the Amended Development Application complies with relevant provisions of the Manly Development Control Plan 2013.

Remaining matters in s 4.15(1) of the EPA Act

24. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see p 29 of the SEE).

25. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the development (see p 28 of the SEE).

26. In respect of s 4.15(1)(d), the Development Application was publicly notified between 18 December 2023 and 23 January 2024. Seventeen objections were received in response to the notification. In addition, the Court heard from three objectors at the site view associated with the conciliation conference and inspected one property.

27. The parties agree that the Amended Development Application addresses the resident objections and concerns. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

28. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see pp 29-30 of the SEE).

Conclusion

29. 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.

Orders

30. The Court notes that, the respondent, as the relevant consent authority, has agreed, under ss 37(1) and 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA2023/1750 to include the following document:

31. Acoustic Statement prepared by Renzo Tonin, dated 9 August 2024.

32. The above amendment is considered minor.

33. The Court orders that:

34. The appeal is upheld.

35. Development Application No DA2023/1750, as amended, for alterations and additions to the pub at 75 The Corso and 42 North Steyne, Manly, is determined by the grant of consent subject to the conditions of consent at Annexure A.

N Targett

Commissioner of the Court

Annexure A (289431, pdf)

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