Background
Hypco Pty Ltd appealed the City of Canada Bay Council’s refusal of a modification application concerning an existing service station at 20 Burwood Road, Concord. The application sought to delete a condition of Development Consent DA2019/0189 and permit 24-hour trading.
The proposal was notified to nearby properties and attracted three submissions raising light-spill and noise concerns. An earlier conciliation conference ended without agreement. Following updated lighting, acoustic and plan-of-management material, the parties agreed on mitigation measures, including lighting controls and night-time operational restrictions.
The Court’s Holding
Commissioner Espinosa upheld the appeal and approved Modification Application MOD2025/0110 under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW). The existing development consent was modified subject to amended conditions.
The Court was satisfied that the development, as modified, remained the same or substantially the same as the originally approved development. It accepted that the agreed measures addressed lighting and noise impacts and preserved residential amenity. Because the parties’ agreement was a decision the Court could make in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 (NSW) required the Court to give effect to it; the Commissioner did not undertake a merits assessment of the issues formerly in dispute.
Key Takeaways
- A consent modification may extend a service station’s trading hours where the development remains substantially the same.
- Noise and lighting mitigation can address residential-amenity concerns associated with 24-hour operation.
- In a s 34 conciliation outcome, the Court must make the agreed decision if it is one the Court could properly make.
Why It Matters
The decision illustrates that expanded operating hours do not necessarily amount to a fundamentally different development for s 4.55 purposes. The result depended on the agreed evidence and conditions addressing the particular amenity impacts of overnight operation.