HDND Enterprise Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1325

Land and Environment Court New South Wales

Medium Neutral Citation: HDND Enterprise Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1325 Hearing dates: Conciliation Conference on 9, 23 April, 15 May 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent No D/2021/71 for the use of land at 78-80 George St Redfern NSW 2016, for the purposes of a gym, is modified in the terms of Annexure A. (3) Development consent No D/2021/71 as modified by the Court is subject to the consolidated modified conditions set out in Annexure B. Catchwords: APPEAL – MODIFICATION – modification of gym trading hours – 24/7 trading – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: HDND Enterprise Pty Ltd ABN 60143472084 (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: P Clarke (Solicitor) (Applicant) P Canning (Solicitor) (Respondent)

Solicitors: Hones Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2024/42605 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by Council of the City of Sydney (the Council) to modify development consent No D/2021/71 approving a gym (approved development) on land known as 78-80 George St Redfern, NSW being Lot 1 in DP1208937 (the Site). The modification application No D/2021/71/A (MOD) sought to modify the approved development to permit 24/7 trading hours for the gym. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on-site and back at the Council Chambers. I presided over the conciliation conference. 3. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. The agreed position is for the Court to uphold the Class 1 appeal and amend the approved development consent by amending condition 7 'Hours of Operation' to allow 24 hour trading 7 days a week for a one year trial period from the date of this judgment (the Proposal). 4. Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 5. The parties agree that all contentions have been resolved in principle as a result of the additional operational measures set out in the following documents: 1. Prestige Town Planning – Plan of Management dated 8 April 2024; 2. Acoustic Dynamics – Operational Noise Emission Assessment dated 8 April 2024; and 3. Acoustic Dynamics – Supplementary Advice Acoustic Assessment & Advice dated 17 April 2024. 1. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(1A) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided to the Court. 2. Taking into account the parties advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below.