Waldorf Australia Pty Ltd v Hornsby Shire Council (formerly in name of A.V.I. Rubinstein) v Hornsby Shire Council

[2008] NSWLEC 1149

Land and Environment Court

of New South Wales

CITATION:

Waldorf Australia Pty Ltd v Hornsby Shire Council (formerly in name of A.V.I. Rubinstein) v Hornsby Shire Council [2008] NSWLEC 1149

PARTIES:

APPLICANT
Waldorf Australia Pty Ltd (formerly in name of A.V.I. Rubinstein)

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11450 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Section 96 Application :- amending consent No 616 of 2004 dated 31 October 2006, parking, signage and noise, extension of trial period

LEGISLATION CITED:

Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28/03/2008

EX TEMPORE JUDGMENT DATE:

28 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Farland,
of Lander and Company

RESPONDENT
Mr P. Jackson, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

28 March 2008

11450 of 2005 Waldorf Australia Pty Ltd v Hornsby Shire Council (formerly in name of A.V.I. Rubinstein) v Hornsby Shire Council

JUDGMENT

1 This is a s 96AA application to amend the orders and conditions in appeal 11450 of 2005 between Waldorf Australia Group Pty Limited and Hornsby Shire Council. The Waldorf Australia Group was previously known as A.V.I. Rubinstein. The application involves amending consent No 616 of 2004 dated 31 October 2006 for premises known as the Chifley Motel, a five storey building on the corner of Pennant Hills Road, City View Road and Boundary Road at Pennant Hills.

2 The matter was listed initially for case management today however the parties advised on commencing that they had reached agreement and they sought consent orders. The applicant also sought to amend the s 96 application as included in order 1 of the consent orders. Bearing in mind the powers of the court under the Land and Environment Court Act 1979 No 294 s 36(2)(3) and the Uniform Civil Procedure Rules 2005 s 36.1A there is power to determine the matter and so I converted the case management to a hearing. Appearing for the respondent was Mr Jackson instructed by Mr Prior and appearing for the applicant was Mr Farland. The matter had been advertised for public comment and only one letter had been received, that being from the New South Wales Police, Eastwood Local Command Area.

3 A summary of that submission is that the police were aware that the trial period in the consent, which allowed a temporary increase of the number of attendees in the conference facility from 162 to 230, had never been put into practice.

4 The maximum number of people attending any one function in the trial period was 152 and there is concern by the police as well as the council that on-street parking may be a problem because of signage on Pennant Hills Road that prevents parking there. It is likely any overflow parking from the underground car park could extend into adjacent residential zones. There could be noise caused by people leaving a conference late at night, or a function, and this was the major test objective of the trial period.

5 I note that within the building there is also a bar and a café that operate separately to the conference facility, and it was a combination of these uses that the trial period is to monitor. There are 128 car parks under the building. Some of those are of course allocated to the serviced apartments and residential flats in the motel building and thirty-eight are allocated for the conference facility. It is felt that somewhere between the approved 160 and the sought 230 persons there would commence to be overflow parking.

6 The council had reflected its concerns in the issues and this was mainly because the applicant initially had sought to obtain 230 persons as a permanent number. The council remains concerned the trial period had never actually been fully exercised for the reasons mentioned above. In negotiating the matter the parties had come to an agreement that the trial period should be extended and this led to the changes agreed.

7 Having considered the matters put before me orally today and read the exhibits it seems to me there is no reason to refuse the consent orders sought by the parties therefore the orders of the Court by consent are:

1. Leave be granted to the Applicant to amend its section 96 application no. 616/04 dated 31 October 2006 as submitted to Hornsby council to reflect the following modification:

a. Condition 2(b) of the development consent no. 616/04 of 31 October 2006 (“the consent”) be modified to extend the trial period from 12 months to 24 months, with the trial period to conclude on 31 October 2008.

b. Condition 83 of the consent be modified to reflect a 24 month trial period in lieu of a 12 month trial period.

c. Delete the word “before” appearing in condition 84 of the consent.

d. Delete the word “after” appearing in condition 84 of the consent.

e. Add a new condition 2(c) of the consent as follows:
“ 2(c) At the conclusion of the 24 month trial period the maximum number of patrons in the conference facility shall not exceed 160 and the “inside” hours for the use of the conference facility shall be in accordance with condition 2(a) of the consent.”

2. The appeal relating to the amended application pursuant to section 96AA of the Environmental Planning and Assessment Act 1979 be upheld.

3. The development consent be modified pursuant to the amended section 96AA application in accordance with and subject to the conditions set out in Annexure A hereto.

4. The exhibits are returned to the parties except Exhibits 2.

___________________

K G Hoffman
Commissioner of the Court
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