Megaplay Properties Pty Ltd v Cessnock City Council [2021] NSWLEC 1712

Megaplay Properties Pty Ltd v Cessnock City Council [2021] NSWLEC 1712

The appeal was upheld because the Court accepted Mr Linnett's acoustic evidence that the future residential receivers were in an urban residential acoustic environment affected by Wine Country Drive traffic noise and that the appropriate sleep disturbance criterion was 65dB LAmax external between 11pm and 5am. The modelling of actual measured events and predicted use showed no exceedance of that criterion, and conditions requiring compliance with the Noise Assessment and a Noise Management Plan would manage the PNTL and MNTL. The proposed extension of trading hours was not incompatible with surrounding land uses, was not antipathetic to the RU2 zone objectives, and was consistent with the...

Jurisdiction
Australia
Judgment Date
23 November 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Determination of Appeal; Development Consent Granted Subject to Conditions
Outcome
Appeal upheld; development consent granted subject to conditions, including a 12-month trial period for extended trading hours.
Legal Topics
['extension of Trading Hours' 'service Station and Food and Drink Premises' '24 Hour Operation' 'acoustic Impacts' 'sleep Disturbance' 'rural Zone Objectives' 'character of the Area' 'trial Period for Consent']
['planning and Environment Law' 'development Consent'] ['extension of Trading Hours' 'service Station and Food and Drink Premises' '24 Hour Operation' 'acoustic Impacts' 'sleep Disturbance' 'rural Zone Objectives' 'character of the Area' 'trial Period for Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Determination of Appeal; Development Consent Granted Subject to Conditions

Legal Issues

  1. 1 ['Whether the proposed extension of trading hours to 24 hours, 7 days a week would cause unacceptable acoustic impacts, including sleep disturbance, on future residential receivers in Valley View Estate.' 'Whether the proposed 24-hour operation would be incompatible with surrounding land uses or inconsistent with the objectives of the RU2 Rural Landscape zone and the character of the area.' 'Whether any consent for extended trading hours should be limited to a trial period.' 'Whether Megaplay was required to justify a change in circumstances before seeking to alter trading hours fixed by condition 58 of the existing consent.']

Ratio Decidendi

The appeal was upheld because the Court accepted Mr Linnett's acoustic evidence that the future residential receivers were in an urban residential acoustic environment affected by Wine Country Drive traffic noise and that the appropriate sleep disturbance criterion was 65dB LAmax external between 11pm and 5am. The modelling of actual measured events and predicted use showed no exceedance of that criterion, and conditions requiring compliance with the Noise Assessment and a Noise Management Plan would manage the PNTL and MNTL. The proposed extension of trading hours was not incompatible with surrounding land uses, was not antipathetic to the RU2 zone objectives, and was consistent with the...

Court Disposition

Appeal upheld; development consent granted subject to conditions, including a 12-month trial period for extended trading hours.

Orders

  • ['The appeal is upheld.' 'Development consent is granted for the extension of trading hours to 24 hours, 7 days a week, for the service station and food and drink premises at 247 Wine Country Drive, Nulkaba, subject to the conditions of consent in Annexure A.' 'The exhibits are returned, except for Exhibits A and 5.']