Argos Investments Pty Ltd T/as Thomas Hotels v Willoughby City Council [2019] NSWLEC 1326

Land and Environment Court New South Wales

Medium Neutral Citation: Argos Investments Pty Ltd T/as Thomas Hotels v Willoughby City Council [2019] NSWLEC 1326 Hearing dates: Conciliation conference on 1 July 2019 Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: 1) The Applicant is granted leave to rely on the amended plans and supporting documents listed in Condition 1 of the conditions at Annexure 'A'. 2) The appeal in respect of the property known as 53 Orchard Road, Chatswood is upheld. 3) Development Application DA-2018/238 for the extension of trading hours from 3am to 4am on Monday to Saturday at ground floor level of the Chatswood Monkey Bar at 53 Orchard Road, Chatswood is approved subject to the conditions at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – additional early morning trading hours – existing licensed premises – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Willoughby Local Environmental Plan 2012 Category: Principal judgment Parties: Argos Investments Pty Ltd T/as Thomas Hotels (Applicant) Willoughby City Council (Respondent) Representation: Counsel: C McEwan, SC (Applicant)

Solicitors: Hatzis Cusack Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/348236 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the deemed refusal of its development application DA/17/0482. The development application seeks approval for the extension of trading hours from 3am to 4am on Monday to Saturday at ground floor level of the Chatswood Monkey Bar Hotel at 53 Orchard Road, Chatswood ("the site"). The development application was lodged with Council on 30 July 2018. 2. 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. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 1 July 2019. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 4. 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 have formed this state of satisfaction for the following reasons: 1. Pursuant to the provisions of Willoughby Local Environmental Plan 2012 the site is zoned B4 Mixed Use Development. The proposed development is permissible with consent in the zone. 2. The development application was also referred to the New South Wales Police Force under the Crime Prevention Through Environmental Design Program ("CPTEP"). The matters raised by the NSW Police have been considered in the determination. 3. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, 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. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to rely on the amended plans and supporting documents listed in Condition 1 of the conditions at Annexure 'A'. 2. The appeal in respect of the property known as 53 Orchard Road, Chatswood is upheld. 3. Development Application DA-2018/238 for the extension of trading hours from 3am to 4am on Monday to Saturday at ground floor level of the Chatswood Monkey Bar at 53 Orchard Road, Chatswood is approved subject to the conditions at Annexure 'A'.

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D M Dickson

Commissioner of the Court Annexure A (39.0 KB, pdf)

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