Rubinstein v Hornsby Shire Council [2006] NSWLEC 597

Rubinstein v Hornsby Shire Council [2006] NSWLEC 597

The s 96 application is substantially the same development. The proposed changes in hours and service of alcohol do not change the approved uses nor are they so fundamental as to render it a different application. Only some requirements from prior correspondence were incorporated into conditions, and it is open to an applicant to seek to amend its consent.

Jurisdiction
Australia
Judgment Date
26 September 2006
Procedural Posture
Appeal Against Refusal of S 96(2) Modification Application / Judgment on Appeal
Outcome
application approved subject to amended and additional conditions
Legal Topics
['development Consent Modification' 'hours of Operation' 'service of Alcohol' 'parking' 'noise Impact']
['planning Law'] ['development Consent Modification' 'hours of Operation' 'service of Alcohol' 'parking' 'noise Impact']

Case Brief

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Procedural Posture

Appeal Against Refusal of S 96(2) Modification Application / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the proposed modifications constitute substantially the same development under s 96(2) of the Environmental Planning and Assessment Act 1979' 'Whether the extended trading hours and service of alcohol will have acceptable traffic and noise impacts on residential amenity']

Ratio Decidendi

The s 96 application is substantially the same development. The proposed changes in hours and service of alcohol do not change the approved uses nor are they so fundamental as to render it a different application. Only some requirements from prior correspondence were incorporated into conditions, and it is open to an applicant to seek to amend its consent.

Court Disposition

application approved subject to amended and additional conditions

Orders

  • ['Amend condition 83 to permit a 12-month trial period for conference facility functions with more than 100 attendees between 6pm and 11pm, and any number between 10pm and 11pm.' 'Traffic and parking monitoring during trial period including parking survey, maintenance of attendance records, patronage levels, and...