Railway Projects Pty Ltd v The Hills Shire Council

[2021] NSWLEC 1629

Land and Environment Court

New South Wales

Medium Neutral Citation:

Railway Projects Pty Ltd v The Hills Shire Council [2021] NSWLEC 1629

Hearing dates:

Conciliation conference 21 September 2021

Date of orders:

20 October 2021

Decision date:

20 October 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification of Development Consent 1028/2017/HA/D to provide for the extension of trading hours for the lower ground floor and the provision of live music and an increase in the maximum permitted music level for the hotel located at Lots 2 and 3 in Deposited Plan 270106 known as Mullane’s Hotel 34-36 Brookhollow Ave, Norwest NSW is approved subject to the conditions set out in Annexure A.

(3) The Court notes that Development Consent 1028/2017/HA/D as so modified is in accordance with Annexure B.

Catchwords:

MODIFICATION APPLICATION – variation of trading hours of hotel – increase in background noise levels – live music – conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s34

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (April 2021)

Category:

Principal judgment

Parties:

Railway Projects Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
GLC Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/55504

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent of an application pursuant to s 4.55(2) of the EP&A Act to modify Development Consent 1028/2017/HA/D (modification application) to provide for the extension of trading hours for the lower ground floor and the provision of live music and an increase in the maximum permitted music level for the hotel located at Lots 2 and 3 in Deposited Plan 270106 known as Mullane’s Hotel (Hotel) 34-36 Brookhollow Ave, Norwest NSW (site).

2. The modification application seeks:

1. The extension of the trading hours of the lower ground floor of the hotel to operate between midnight and 3am the following day Monday to Saturday with a maximum of 45 patrons;

2. An increase in the maximum permitted volume of background music for the hotel to 80dB(A);

3. To permit live music to a maximum volume of 95dB(A) in the public bar areas of the upper ground and first floors; and

4. To amend the Plan of Management accordingly.

3. The matter had been fixed for hearing and commenced on 21 September 2021 by audio-visual means in accordance with the Court’s Covid-19 Pandemic Arrangements Policy April 2021. The Court heard evidence from two objectors who live in the general neighbourhood of the hotel. Their concern was the potential impact of noise from the hotel on their residential amenity.

4. After their evidence was taken, I was informed by the parties that having regard to the acoustic evidence which had been provided to them, they sought a short adjournment to discuss the matter. I granted a short adjournment. The parties subsequently requested the Registrar make an order that the matter be the subject of conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). The Registrar made that order and the Chief Judge delegated the conciliation to me.

5. Later on 21 September 2021 I presided over a conciliation conference between the parties pursuant to s 34(1) of the Court Act.

6. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to allow the appeal and to modify the development consent subject to conditions.

7. On 21 September 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. The proposed consolidated conditions of development consent were provided on 1 October 2021.

8. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

9. The parties’ agreement involves the Court exercising the function under s 4.55 of the EP&A Act to grant the application to modify the development consent.

10. Section 4.55(2)(a) of the EP&A Act requires that I must be satisfied that the modified development "is substantially the same development" as the originally approved development. The most common approach to determining whether what is proposed is substantially the same as the original development is to identify and compare both the quantitative and qualitative changes. The modified development must be essentially or materially the same, and the nature of the development must remain the same (see generally Arrage v Inner West Council [2019] NSWLEC 85).

11. The essence of the development is a hotel, about which there is no change. The extension of the hours is not of itself a change in the nature or essence of the development. It is possible that if there are greater impacts then the modified development may not be substantially the same. In this case however the acoustic evidence from Mr D Suwandi retained by the Applicant and Mr S Gauld retained by the Council concludes that, taking into account certain measures, that the acoustic impacts will be contained and noise emissions from all sources will comply with the relevant criteria. It follows that there is no material change in the impacts of the development.

12. The measures included by way of condition include the increase in height of an acoustic barrier by 1m and the adoption of a rigorous plan of management. I also note that the extension of trading hours is for a trial period of 12 months.

13. I am satisfied that the modified development is substantially the same development as the originally approved development in accordance with s 4.55(2)(a) of the EP&A Act.

14. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act.

15. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

16. 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 modification application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

17. The Court orders:

1. The appeal is upheld.

2. Modification of Development Consent 1028/2017/HA/D to provide for the extension of trading hours for the lower ground floor and the provision of live music and an increase in the maximum permitted music level for the hotel located at Lots 2 and 3 in Deposited Plan 270106 known as Mullane’s Hotel 34-36 Brookhollow Ave, Norwest NSW is approved subject to the conditions set out in Annexure A.

3. The Court notes that Development Consent 1028/2017/HA/D as so modified is in accordance with Annexure B.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (312826, pdf)

Annexure B (485572, pdf)

**********

Decision last updated: 20 October 2021