Treetop Adventure Park the Hills Pty Ltd v The Hills Shire Council

[2017] NSWLEC 1436

Land and Environment Court

New South Wales

Medium Neutral Citation:	Treetop Adventure Park The Hills Pty Ltd v The Hills Shire Council [2017] NSWLEC 1436
Hearing dates:	Conciliation conference on 15 June, 12 July & 4 August 2017
Date of orders:	14 August 2017
Decision date:	14 August 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	NOISE CONTROL NOTICE – appeal - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Treetop Adventure Park The Hills Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: Mr Pickles SC (Applicant) Solicitor: Hones Lawyers (Applicant) Ms Simone Brew, Matthews Folbigg (Respondent)
File Number(s):	2017/110945
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Appeal is upheld.

2. The Noise Control Notice is revoked.

3. The Applicant agrees to amend the Noise Management Plan to include the following additional clauses:-

1. TreeTops Adventure Park is to have all staff members trained to actively monitor noise levels when Treetops Adventure Park is in use. The duties of all staff members would be to:

1. Advise all climbers and spectators associated with the TreeTops Adventure Park within the license area to refrain from making noise.

2. Noise complaint protocol to be in place to include:

1. The Treetops manager is to record all verbal and telephone complaints in writing; together with details of the circumstance leading to the complaint and all subsequent actions;

2. The Treetops manager will take all reasonable steps to investigate the complaints in order to determine whether a criterion exceedance has occurred or whether noise have occurred unnecessarily;

3. If excessive or unnecessary noise have been caused, corrective action will be planned and implemented by the project manager;

4. Nearest residents to be provided with the contact details for the management staff of Treetops Adventure Park.

4. The applicant agrees to provide to the respondent by no later than 25 August 2017 an amended Noise Management Plan which incorporates the additional clauses as set out in paragraph (3) above.

5. No order as to costs.

……………………….

Commissioner Gray