Railway Projects Pty Ltd v The Hills Shire Council [2021] NSWLEC 1629

Railway Projects Pty Ltd v The Hills Shire Council [2021] NSWLEC 1629

The agreed modification was within the Court's power because the development remained, in essence, a hotel; the extension of hours did not change the nature or essence of the development; acoustic evidence indicated that, with conditions including an increased acoustic barrier and a rigorous plan of management, acoustic impacts would be contained and relevant noise criteria met; and the extended hours were limited to a 12 month trial. The modified development was therefore substantially the same as the originally approved development, and the parties' agreed decision was one the Court could have made, requiring disposition in accordance with the agreement under s 34(3).

Jurisdiction
Australia
Judgment Date
20 October 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Pursuant to S 4.55(2) to Modify Development Consent 1028/2017/ha/d / Final Orders Following Conciliation Conference Pursuant to S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification Application' 'extension of Hotel Trading Hours' 'live Music' 'acoustic Impacts' 'conciliation Agreement' 'substantially the Same Development']
['environmental Planning and Assessment' 'land and Environment Court Procedure'] ['modification Application' 'extension of Hotel Trading Hours' 'live Music' 'acoustic Impacts' 'conciliation Agreement' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Pursuant to S 4.55(2) to Modify Development Consent 1028/2017/ha/d / Final Orders Following Conciliation Conference Pursuant to S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the modified development is substantially the same development as the originally approved development under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' "Whether the parties' agreed decision was one that the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The agreed modification was within the Court's power because the development remained, in essence, a hotel; the extension of hours did not change the nature or essence of the development; acoustic evidence indicated that, with conditions including an increased acoustic barrier and a rigorous plan of management, acoustic impacts would be contained and relevant noise criteria met; and the extended hours were limited to a 12 month trial. The modified development was therefore substantially the same as the originally approved development, and the parties' agreed decision was one the Court could have made, requiring disposition in accordance with the agreement under s 34(3).

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' "Modification of Development Consent 1028/2017/HA/D to provide for the extension of trading hours for the lower ground floor and the provision of live music and an increase in the maximum permitted music level for the hotel located at Lots 2 and 3 in Deposited Plan 270106 known as Mullane's...