Land and Environment Court New South Wales Medium Neutral Citation: KJ Planning v Georges River Council [2020] NSWLEC 1453 Hearing dates: Conciliation conference on 31 July 2020; 21 August 2020; 24 August 2020; 18 September 2020 Date of orders: 24 September 2020 Decision date: 24 September 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent DA/145/2007 (LEC Order 10026 of 2008) is modified pursuant to Modification Application MOD 2018/0118 as shown in the modified conditions of consent included at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: KJ Planning (Applicant) Georges River Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/371035 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings arise following the Council's determination of a Modification Application No. MOD 2018/0118 made in respect of a Development Consent No. DA/145/2007 granted by the Court for an industrial manufacturing and plumbing supply business in operation at 69 Boundary Road, Mortdale NSW 2223 (the site). 2. The Modification Application was determined by Council under delegated authority on 14 October 2019, and the Council imposed conditions 53 and 54 as follows: "53 The use of the whole premises shall be restricted to the hours of 7am to 5pm Monday to Friday for the factory operations, and 7am to 6pm Monday to Friday and 7am to 12 noon on Saturday for the sales and office/administration operations. No work is permitted on Sundays or Public Holidays. (This condition has been amended as per MOD2018/0118 (07/DA-145) 54. All vehicular deliveries or dispatches from the premises shall be restricted to the hours of 7am to 6pm Monday to Friday. No work is permitted on Saturdays, Sundays or Public Holidays. (This condition has been amended as per MOD2018/0118 (07/DA-145)" 1. In addition, Council imposed conditions 73, 74 and 75, which state: "73. Noise Control The use of the premises must not give rise to the transmission of offensive noise to any place of different occupancy. Offensive noise is defined in the Protection of the Environment Operations Act 1997 (as amended). (This condition has been added as per MOD2018//0118 (07/DA-145) 74. Maintenance of Sound Attenuation Sound attenuation measures must be implemented in accordance with The Extension of Hours – Acoustic Assessment – Ace Gutters Pty Ltd report prepared by Rodney Stevens Acoustic dated 22 August 2018 (This condition has been added as per MOD2018/0118 (07/DA-145). 75. Amenity of neighbourhood The implementation of this development shall not adversely affect the amenity of the neighbourhood or interfere unreasonably with the comfort or repose of a person who is outside the premises by reason of the emission or discharge of noise, fumes, vapour, odour, steam, soot, dust, waste water, waste products, grit, oil or other harmful products. (This condition has been added as per MOD2018/0118 (07/DA-145)" 1. On 25 November 2019, the applicant lodged the subject appeal against the Council's determination of the Modification Application seeking to modify Conditions 53, 54 and 74 of the Modified Consent and the deletion of Conditions 73 and 75. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 July 2020, 21 & 24 August 2020 and 18 September 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modifications to conditions 53 and 54 of the development consent. Before the Court can exercise this function, I must be satisfied about the jurisdictional prerequisites of relevance in these proceedings arising from s 4.55(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). 5. In accordance with s 4.55(1A) of the EPA Act, I am satisfied that the proposed change to the hours of operation at the site has only a minimal environmental impact and the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. 6. I am also satisfied, if the proposed modification application is approved, it would not result in a contravention of the EPA Act, an environmental planning instrument or the regulations. As such, the Court may in exercising its function under s 8.9 and s 8.14 of the EPA Act approve the modification of the Consent. 7. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 8. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA/145/2007 (LEC Order 10026 of 2008) is modified pursuant to Modification Application MOD 2018/0118 as shown in the modified conditions of consent included at Annexure A. …………………….. S Dixon Senior Commissioner of the Court Annexure A (300541, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2020