HDND Enterprise Pty Ltd v The Council of the City of Sydney

[2024] NSWLEC 1325

Land and Environment Court

New South Wales

Medium Neutral Citation:

HDND Enterprise Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1325

Hearing dates:

Conciliation Conference on 9, 23 April, 15 May 2024

Date of orders:

17 June 2024

Decision date:

17 June 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent No D/2021/71 for the use of land at 78-80 George St Redfern NSW 2016, for the purposes of a gym, is modified in the terms of Annexure A.

(3) Development consent No D/2021/71 as modified by the Court is subject to the consolidated modified conditions set out in Annexure B.

Catchwords:

APPEAL – MODIFICATION – modification of gym trading hours – 24/7 trading – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

HDND Enterprise Pty Ltd ABN 60143472084 (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
P Clarke (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2024/42605

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by Council of the City of Sydney (the Council) to modify development consent No D/2021/71 approving a gym (approved development) on land known as 78-80 George St Redfern, NSW being Lot 1 in DP1208937 (the Site). The modification application No D/2021/71/A (MOD) sought to modify the approved development to permit 24/7 trading hours for the gym.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on-site and back at the Council Chambers. I presided over the conciliation conference.

3. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. The agreed position is for the Court to uphold the Class 1 appeal and amend the approved development consent by amending condition 7 ‘Hours of Operation’ to allow 24 hour trading 7 days a week for a one year trial period from the date of this judgment (the Proposal).

4. Under s 34(3) of the LEC Act, I must dispose of the Class 1 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.

5. The parties agree that all contentions have been resolved in principle as a result of the additional operational measures set out in the following documents:

1. Prestige Town Planning – Plan of Management dated 8 April 2024;

2. Acoustic Dynamics – Operational Noise Emission Assessment dated 8 April 2024; and

3. Acoustic Dynamics – Supplementary Advice Acoustic Assessment & Advice dated 17 April 2024.

6. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(1A) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided to the Court.

7. Taking into account the parties advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below.

Section 4.55 Environmental Planning and Assessment Act 1979

8. The Applicant lodged the MOD under s 4.55(1A) of the EPA Act - modifications involving minimal environmental impact.

9. With reference to the additional material listed above at paragraph [5], the parties are satisfied and the Court accepts that the Proposal is of minimal environmental impact. The additional hours of operation set out in the Proposal will not result in an unacceptable increase in noise or traffic experienced by the immediate neighbours.

10. The Proposal is substantially the same development as that approved by the Respondent in June 2021, in that it is a gym that operates late at night and early in the morning and the increase in trading hours does not materially alter or change the use of the approved development.

11. The MOD was notified, and three submissions were made in respect of the Proposal which have been considered. Amendments have been made by the Applicant to the Plan of Management for the Site to mitigate and otherwise offset the impacts described in the submissions.

12. Accordingly, the parties agree and the Court accepts that all applicable jurisdictional preconditions in s 4.55 of the EPA Act have been met and the Court has the power to approve the MOD.

13. Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant Environmental Planning Instruments and planning controls. I refer to the analysis undertaken in the Statement at paragraph (22) and accept the agreed position of the parties.

Conclusion

14. Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. 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.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. Development consent No D/2021/71 for the use of land at 78-80 George St Redfern NSW 2016, for the purposes of a gym, is modified in the terms set out in Annexure A.

3. Development consent No D/2021/71 as modified by the Court is subject to the consolidated modified conditions set out in Annexure B.

L Byrne

Acting Commissioner of the Court

42605.24 Annexure A

42605.24 Annexure B

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Decision last updated: 17 June 2024