Maxi Shine (Belmont) Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1444

Maxi Shine (Belmont) Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1444

As the parties reached an agreed decision that the Court could have made in the proper exercise of its functions, the Court upheld the appeal and modified the Development Control Order to require construction of a three-metre Colorbond acoustic fence along the southern perimeter, satisfying both statutory prerequisites and the objectives of the original order.

Parties
Applicant: Maxi Shine (Belmont) Pty Ltd; Respondent: Hornsby Shire Council
Jurisdiction
Australia
Judgment Date
10 August 2023
Procedural Posture
Class 1 Planning Appeal / Principal Judgment Following Conciliation Conference
Outcome
Appeal upheld; Development Control Order modified in accordance with parties' agreement
Legal Topics
Development Control Order, Compliance With Development Consent, Acoustic Fence Requirements, Conciliation Conference, Modification of Order
Planning and Environment Development Control Order Compliance With Development Consent Acoustic Fence Requirements Conciliation Conference Modification of Order

Case Brief

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Parties

Maxi Shine (Belmont) Pty Ltd

Applicant

Hornsby Shire Council

Respondent

Procedural Posture

Class 1 Planning Appeal / Principal Judgment Following Conciliation Conference

Legal Issues

  1. 1 Whether compliance order properly issued for failure to construct required acoustic fence under development consent conditions
  2. 2 Whether jurisdictional prerequisites for modifying the development control order are met

Ratio Decidendi

As the parties reached an agreed decision that the Court could have made in the proper exercise of its functions, the Court upheld the appeal and modified the Development Control Order to require construction of a three-metre Colorbond acoustic fence along the southern perimeter, satisfying both statutory prerequisites and the objectives of the original order.

Court Disposition

Appeal upheld; Development Control Order modified in accordance with parties' agreement

Orders

  • The appeal is upheld.
  • Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant on 30 March 2020 (the Order) is modified as set out in Annexure A.