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

Land and Environment Court New South Wales

Medium Neutral Citation: Maxi Shine (Belmont) Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1444 Hearing dates: Conciliation conference on 5 July and 20 July 2023 Date of orders: 10 August 2023 Decision date: 10 August 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) 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. (3) The modified Order is to be in the terms set out in Annexure B. Catchwords: DEVELOPMENT CONTROL ORDER – conciliation conference – construction of acoustic fence – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, Div 9.3, ss 8.18, 9.34, 9.35, 9.36, Sch 5, Pts 1, 5, 6, Pt 7, cll 6, 8 Hornsby Shire Local Environmental Plan 2023 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Maxi Shine (Belmont) Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: P Bell (Applicant) B Lennox (Respondent)

Solicitors: Hills Legal Lawyers (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 2023/55051 Publication restriction: Nil

Judgment 1. COMMISSIONER: These Class 1 proceedings have been brought to Court pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) and arise as a result of a Development Control Order (the Order) that was issued by Hornsby Shire Council to the Respondent on 23 January 2023. The order was issued in respect of land identified as Pt Lot 2 DP 845733, which is part of the land known as 236 New Line Road, Dural, which currently houses a car wash and a Hungry Jacks Restaurant. The Applicant is a tenant of the subject site and operates the car wash business known as Maxi Shine (Belmont) Pty Ltd, pursuant to Development Consent No. 203/97 (the Development Consent). 2. The Order constitutes a Compliance Order which requires compliance with conditions of the Development Consent, including but not limited to Conditions 6 and 7 which state the following: "6. An acoustic fence/wall shall be erected along part of the perimeter of the car wash facility as indicated in red along the plans to reduce noise intrusions to adjoining residential properties. The wall shall incorporate architectural treatment and be screened by landscaping. 7. The acoustic fence/wall required in condition No. 6 shall be built of solid material with a mass-per-unit-area of at least 15kg/m2." 1. The Order has been issued pursuant to Part 1, item 11 of Schedule 5 and in accordance with ss 9.34, 9.35 and 9.36 at Div 9.3 of the EPA Act. 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 5 July and 20 July 2023. I presided over the conciliation conference. 3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and amending the Order in accordance with the parties' agreed terms (the amended Order). The amended Order requires the construction of a Colorbond acoustic fence of a height of no less than three metres along the southern perimeter of the subject property to ameliorate the acoustic impacts of the use of the subject property on surrounding residential properties. 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 8.18 of the EPA Act to modify the Order. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. For the following reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 1. Pursuant to the provision of the Hornsby Shire Local Environmental Plan 2023, the subject site is zoned IN2 Light Industrial within which car washes are permissible with consent. 2. The current car wash functions pursuant to Development Consent No. 203/97. 3. The parties agree that the acoustic fence/wall required by condition 6 of Development Consent No 203/97 was not constructed, in that the acoustic wall/fence along the eastern perimeter of the site was partly constructed from colorbond, and no acoustic wall/fence was constructed along the southern perimeter of the site. From this, there existed sufficient circumstances to enliven the power to give the Order pursuant to item 11 of Pt 1 of Sch 5 of the EPA Act. 4. The EPA Act Sch 5 Pt 1 Item 11 allows a Compliance Order to be issued to comply with a planning approval for the carrying out of works when a planning approval has not been complied with. 5. The parties further submit that the requirements regarding natural justice, notices to be given and representations concerning proposed orders, as set out in Pt 5 cl 6, Pt 6 cl 8 and Pt 7 of Sch 5 of the EPA Act, have been complied with. 1. 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. 2. The Court orders: 1. The appeal is upheld. 2. 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. 3. The modified Order is to be in the terms set out in Annexure B.