Background
Bill Drakopoulos appealed the Council’s refusal of a modification application concerning development consent for the Budgewoi Hotel at 169 Budgewoi Road, Budgewoi. The application originally sought to extend the hotel’s operating hours to 1:00 am from Monday to Saturday and midnight on Sunday.
The Class 1 appeal commenced with a site inspection. Following joint expert evidence and further material, the parties resolved the disputed issues and participated in a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). Objectors had raised concerns about the hotel’s existing operations and the effects of longer hours on residential amenity.
The Court’s Holding
Commissioner Porter upheld the appeal and modified the development consent in accordance with the parties’ agreement. The agreed outcome removed Monday to Wednesday nights from the proposed 1:00 am extended-hours arrangement and imposed measures including an acoustic barrier around the car park, additional parking, a revised plan of management, enhanced security and noise controls, and steps to regularise other hotel works.
The Court held that the agreement was a decision it could make in the proper exercise of its functions. It found the jurisdictional requirements for a modification under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) were met, including that the trial extension would be substantially the same development and that notification requirements had been satisfied. Under s 34(3), the Court was required to give effect to the agreement; it made no independent merits assessment.
Key Takeaways
- A conciliated Class 1 outcome must be adopted where it is within the Court’s power and jurisdictional requirements are met.
- The Court’s role in approving the agreement was jurisdictional, not a fresh merits review of the disputed impacts.
- Extended hotel trading hours were conditioned by reduced nights, trial arrangements, acoustic works, management controls and compliance measures.
Why It Matters
The decision illustrates the practical use of conciliation in planning appeals over late-night trading and amenity impacts. It also confirms that, once parties reach agreement, the Court tests whether the agreed decision is legally available rather than reassessing the planning merits.