Gym Operating Hours Extended After Appeal Success

The appeal was upheld, granting consent to the development application for extending operating hours of an existing gym to 24 hours, 7 days a week, subject to conditions. The Court considered the application's compliance with the Inner West Local Environment Plan 2022 and other relevant regulations.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v Inner West Council [2023] NSWLEC 1739 Hearing dates: Conciliation conference held on 1 December 2023 Date of orders: 07 December 2023 Decision date: 07 December 2023 Jurisdiction: Class 1 Before: [NAME] C Decision: [ADDRESS] orders: (1) The appeal is upheld. (2) Development Application [NAME]/2023/0587, which seeks to change operating hours to 24 hours, 7 days a week for an existing gym with associated signage on Lots 2 and 3 Deposited Plan 1261043, also known as 32-[ADDRESS], Newtown, is determined by the grant of consent, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – change in operating hours for gym – signage - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Inner West Local Environment Plan 2022, cl 2.3 Land and [ADDRESS] 1979, s 34 Texts Cited: Inner West Community Participation Strategy 2022 Marrickville Development Control Plan 2011 Category: Principal judgment Parties: [COMPANY] (Applicant) Inner West Council (Respondent) Representation: Counsel: [redacted] [NAME] (Solicitor) (Respondent)

Solicitors: [redacted] Inner West Council (Respondent) File Number(s): 2023/309751 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal against conditions in the approval of Development Application [NAME]/2023/0587 (the [NAME]) by the Inner West Council (the Council), which relates to the (trial) operating hours of an existing gym, with associated signage, on Lots 2 and 3 Deposited Plan 1261043, also known as 32-[ADDRESS], Newtown (the site).

Background 1. The [NAME] was lodged with Council on 20 July 2023. The [NAME] seeks to change (increase) the operating hours to 24 hours, 7 days per week for a trial period to an existing approved development, a gym, under [NAME]/2021/1315 (original [NAME]). The original [NAME] relates to an indoor recreational facility (a gym), located in the basement of an existing building on the site.

2. The Applicant appealed against the deemed refusal of the [NAME], pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). Subsequent to the filing of the appeal, the Council approved the [NAME] on 24 October 2023, subject to conditions. The appeal remains relevant for conditions 9 and 18, as approved by Council.

3. Pursuant to s 34(1) of the Land and [ADDRESS] 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties' request, commenced without a site view and held before me as Duty Commissioner.

4. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the [NAME], pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council's merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application [NAME]/2023/0587, with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to [NAME]/2023/0587, subject to conditions in Annexure A.

Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Inner West Local Environment Plan 2022 (IWLEP):

1. Pursuant to cl 2.3 of the IWLEP, the proposed residential development is situated over land zoned MU1 Mixed use. The proposed development, as described to the Court, is permissible with consent. The amended [NAME] addresses all the relevant objectives, aims, standards and requirements of the IWLEP.

1. The relevant requirements of the Marrickville Development Control Plan 2011 have been considered in Council's merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended [NAME], and as described in the agreed conditions of consent.

2. The original [NAME] was publicly notified in accordance with the Council's Community Participation Strategy 2022, with seven submissions received.

3. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent 1. Based on the amended plans and supporting documents to the [NAME], the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

2. The Council has undertaken the appropriate merit assessment of the proposed development. [ADDRESS] is advised that the issues raised in contention have been addressed by the amendments made to the application.

3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application [NAME]/2023/0587 can be granted consent.

4. 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. 5. [ADDRESS] notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application [NAME]/2023/0587.

2. The Applicant has filed the amendments to the Development Application [NAME]/2023/0587 with the Court on 27 November 2023. 1. [ADDRESS] orders that:

1. The appeal is upheld.

2. Development Application [NAME]/2023/0587, which seeks to change operating hours to 24 hours, 7 days a week for an existing gym with associated signage on Lots 2 and 3 Deposited Plan 1261043, also known as 32-[ADDRESS], Newtown, is determined by the grant of consent, subject to the conditions in Annexure A.

[NAME]

Commissioner of the Court

********** Annexure A 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: 07 December 2023