McDonald’s Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773

Land and Environment Court New South Wales

Medium Neutral Citation: McDonald's Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773 Hearing dates: On the papers. Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Class 1 Before: Clay AC Decision: 1) The appeal is upheld. 2) Development consent is granted to Development Application No. DA-2019/1273 for the construction and use of a food and drink premises and the construction of four commercial tenancies, one ingress/egress driveway from West Dapto Road, 52 car parking spaces, business identification signage, communal open space areas and landscaping and other minor site works at lots 336 & 337 DP1241313, known as 1 – 9 Raven Street, Wongawilli subject to the conditions in Annexure A. 3) The exhibits may be returned other than exhibits A, B, C, G and 1. Catchwords: DEVELOPMENT APPLICATION – restaurant/takeaway with drive through, small retail/commercial premises and childcare centre – neighbourhood centre – findings made –– conditions Cases Cited: McDonald's Australia Limited v Wollongong City Council [2021] NSWLEC 1621 McDonald's Australia Limited v Wollongong City Council (No 2) [2021] NSWLEC 1752 Category: Principal judgment Parties: McDonald's Australia Limited (Applicant) Wollongong City Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) T To (Respondent)

Solicitors: Allens (Applicant) Wollongong City Council (Respondent) File Number(s): 2020/210503 Publication restriction: Nil

Judgment 1. COMMISSIONER: On 20 October 2021, I delivered findings (McDonald's Australia Limited v Wollongong City Council [2021] NSWLEC 1621) (the first judgment) concerning development application DA-2019/1273 (DA) for the following development: * A food and drink premises (McDonald's) with a drive-through facility operating 5am to midnight 7 days a week; * A centre-based child care facility with outdoor play area and capacity for 100 children; * 4 commercial/retail premises with trading hours 7am – 10pm seven days; * Construction of 2 ingress/egress driveways, one of each on West Dapto Road and Raven Street; * 83 car parking spaces including 3 disabled spaces; * Business identification signage including 2 pylon signs; * Communal plaza adjacent to the commercial/retail premises and a smaller communal area on the western boundary of the site; * Landscaping and other minor site works; and * Subdivision of the existing 2 lots into 3 lots. (the development, or proposed development) 1. In the first judgment my reasons left open the determination of the appropriate orders to be made. After further hearing, on 8 December 2021, I determined that development consent would be granted subject to conditions (McDonald's Australia Limited v Wollongong City Council (No 2) [2021] NSWLEC 1752) and made the following direction: 1. Within 2 business days the Council is to file in a form suitable for lodgement on the Planning NSW Portal an agreed set of conditions reflective of these reasons and the reasons given on 20 October 2021. 1. I also granted leave to the parties to identify any condition in dispute that I had overlooked. 2. On 13 December 2021, the parties provided agreed conditions and identified that I had indeed overlooked one condition which remains in dispute which is: "119 Hours of operation a McDonald's Restaurant and drive-through i) The approved operating hours for the business are between 5:00am and 12:00 midnight, 7 days per week. ii) All employees and staff must leave the site no later than 1:00am." 1. The Applicant seeks the inclusion of ii) whereas the Council seeks its deletion. 2. In my view the notion of "operation", the subject of the condition, means that premises are open to the public – that is, the business is operating. It is usually the case that there is a period of time after a business is closed to the public in which the staff carry out the necessary final cleaning and security tasks. However, given the lateness of the hour of closing, and the proximity of the McDonalds premises to residential premises, I do not consider that a whole hour is appropriate, nor likely necessary, for staff to leave the premises. 3. Some time should be permitted after midnight and, having a general understanding of the nature of the business, I consider that 20 minutes is sufficient time for the staff to have left the premises. The condition will be amended accordingly. 4. I am satisfied that the remaining conditions confirm with my prior reasons for judgment and make the following orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA-2019/1273 for the construction and use of a food and drink premises and the construction of four commercial tenancies, one ingress/egress driveway from West Dapto Road, 52 car parking spaces, business identification signage, communal open space areas and landscaping and other minor site works at lots 336 & 337 DP1241313, known as 1 – 9 Raven Street, Wongawilli subject to the conditions in Annexure A. 3. The exhibits may be returned other than exhibits A, B, C, G and 1.

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P Clay

Acting Commissioner of the Court Annexure A (1129924, pdf)

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Amendments 30 December 2021 - Pursuant to UCPR r 36.17, the Court amends the final orders of 17 December 2021 to replace Annexure A (conditions) with the corrected version. 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: 30 December 2021