Antoun & Anor v Wollondilly Shire Council

Land and Environment Court (NSW)|2009-08-07|Before: Mr J

CITATION : Antoun & Anor v Wollondilly Shire Council [2009] NSWLEC 1308

APPLICANTS Simon Abou Antoun and Bechara El Skaf PARTIES : RESPONDENT Wollondilly Shire Council

KEY ISSUES: DEVELOPMENT APPLICATION :- Section 97 appeal

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 CASES CITED: Tuite v Wingecaribee Shire Council [2008] NSWLEC 1315 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Project Venture Developments v Pittwater Council [2005] NSWLEC 191

APPLICANT Mr N Eastman, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Barber Lawyers RESPONDENT Mr J Hones, solicitor Hones La Hood Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10232 of 2009 Antoun & Anor v Wollondilly Shire Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Wollondilly Shire Council (the council) of a development application (No D325-08) to erect a building to be used as a water bottling facility on Lot 66 DP 258766, 300 McKee Road Theresa Park (the site). 2 The key issue between the parties concerns the visual impact of the proposed development, both from McKee Road and from neighbouring properties. Specific issues raised by the council include the potential for rural land use conflict and the suitability of the site; the impact of traffic generated by the development on McKee Road; and whether the proposed development should be refused in the public interest.

The site and its locality 3 The site is on a wide battleaxe shaped lot located on the Nepean River Flood Plain. The site is on the eastern side of McKee Road and has a 160m frontage to McKee Road in the south east, and a 150m frontage to the Nepean River in the north east. Some 75% of the site is affected by a 1% AEP (Annual Exceedance Probability) flood event. The lot has largely been cleared of vegetation and is vegetated by pasture grasses and weeds. The existing development includes a dwelling house, a swimming pool, an earth dam, and a shed. The site currently has an existing bore approval granted by the NSW Department of Water and Energy for irrigation. The bore is located to the east of the existing dwelling house. 4 The surrounding area contains a mix of agricultural, rural residential and recreational land uses. The site and other land on the eastern side of McKee Road is generally flat and slopes to the Nepean River. The western side of McKee Road is generally flat before sloping upwards towards an escarpment to the west. Planning controls 5 The site is in Zone 1(a) Agriculture in the Wollondilly Local Environmental Plan 1991 (the LEP). The objectives of the zone, and permissible uses, are as follows: Zone No 1 (a) (Agriculture Zone) 1 Objectives of zone

The objectives of this zone are: (a) to promote and maintain sustainable agricultural uses, and (b) to recognise the importance of the preservation of high-class agricultural land for agricultural purposes, and (c) to minimise the incidence of existing and potential rural land use conflict, and (c1) to maintain existing significant stands of indigenous vegetation, and (c2) to allow for the development of non-agricultural land uses which are compatible with the character of the zone, and (c3) to minimise the impact of noxious weeds on agricultural production, and (d) to protect the water quality of receiving streams and to reduce land degradation, and (e) to minimise the impact of development on the existing agricultural landscape character. 2 Without development consent

Agriculture (other than cattle feedlots, intensive horticulture, intensive livestock keeping establishments, opportunity feedlots or turf farming).

Any purpose other than a purpose included in Item 2 or 4.

Amusement centres; boarding-houses; bus depots; bus stations; car repair stations; caravan parks; child care centres; clubs; commercial premises (other than veterinary establishments); general stores; granny flats; highway service centres; hospitals; hotels; industries (other than rural, extractive, offensive or hazardous or potentially offensive or hazardous industries); junkyards; light industries; light service industries; liquid fuel depots; motor showrooms; multiple dwellings; plant and equipment hire; service stations; shops (other than produce stores); taverns. 6 The land adjoining the site on the eastern side of McKee Road is in Zone 1(a) Agriculture. The land immediately opposite on the western side of McKee Road and to the south is also in Zone 1(a). The land on the western side of McKee Road to the north is in Zone 7(c) Environmental Protection "C" (Rural Living Zone). The objectives of zone 7(c) are: (a) to provide for rural living opportunities, and (b) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character, and (c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected, and (d) to maintain existing significant stands of indigenous vegetation. 7 Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 -1997) (the REP) applies to the site. Clause 6 of the REP provides specific planning policies and recommended strategies, including (7) Riverine scenic quality. The recommended strategies include: (c) Consider the siting, setback, orientation, size, bulk and scale of and the use of unobtrusive, non-reflective material on any proposed building or work, the need to retain existing vegetation, especially along river banks, slopes visible from the river and its banks and along the skyline, and the need to carry out new planting of trees, and shrubs, particularly locally indigenous plants. 8 Development Control Plans applying to the site are Development Control Plan No 7 - Off Street Parking; Development Control Plan No 36 - Development in Rural Areas (DCP No 36); Development Control Plan No 46 - Management of Contaminated Lands; Wollondilly Agriculture Development Control Plan (the Agriculture DCP); and Wollondilly Agricultural Lands Development Control Plan. 9 The purpose of DCP No 36 is described (at 1.3) as being "to ensure that development that is carried out in rural zoned areas of the Shire does not detract from the rural amenity". Relevant provisions of DCP No 36 include the following: 2.1 Objectives To ensure that development takes account of the physical constraints of the land and to promote development in harmony, rather than in conflict, with the environment. 4.3 Rural Sheds 4.3.1 Introduction Council will require a development application and building application for the erection of a rural shed where there is no existing dwelling house or agricultural activity. … 4.3.3 Landscaping Landscaping may be required to ensure that the shed will be unobtrusive. … 4.3.5 Siting Rural sheds must be located so as not to cause adverse visual impact. Rural sheds should not be located on prominent hilltops. 10 DCP No 36 addresses non rural development in rural zones, including the objectives that development not create a noise nuisance (cl 7.1(i)) and ensure the privacy of residents of adjacent development (cl 7.1(v)), and requiring building setbacks of 18 metres (or 20-40 metres if fronting an arterial road) (cl 7.3).

11 The Agriculture DCP sets out (at A.5) the objectives for agricultural development: 1. To implement the objectives of Wollondilly Local Environmental Plan 1991 (as amended). 2. To provide guidelines that the submission of development applications for intensive agriculture and subdivision considerations in the agriculture zone. 3. To reduce as much as possible the incident for rural land use conflict 4. To ensure development is compatible with the capability of the land 5. To ensure that development has a minimal detrimental impact on the water quality of receiving waters. 6. To ensure that development has a minimal adverse impact on the immunity of the surrounding area by way of noise over and visual issues. 7. To ensure that development is embraced the philosophies of total catchment management and the principles of ecologically sustainable development 8. To ensure that development in the Agriculture zone is sympathetic to the rural landscape surrounding areas 9. To encourage the use of high class agricultural land for agricultural purposes. 10. To ensure development occurs having regard to the land capability and agricultural suitability of the site. 11. To ensure development occurs having regard to the overall road pattern of adjoining lots in the area. 12. To ensure that development in flood prone areas is in accordance with government policies. The proposal and its history 12 The development application was for consent to the construction of a steel framed building with dimensions 45m by 56m with a maximum height of 7.5m, to be used for processing, bottling and storage of water from the existing bore for the purposes of distribution as bottled drinking water. The construction works would involve some excavation for construction of the proposed building platform construction of a car parking area and internal roads. The statement of environmental effects accompanying the development application states that operations of the water bottling facility are to be contained within the confines of the proposed building. The water bottling plant would include the following processes: -water storage tank -water filtration and treatment system -bottle production facility -conveyors -water bottling plant -labelling plant -labelling and packaging facility. 13 The statement of environmental effects states that the existing bore is licensed for the extraction of up to 60 megalitres per year for irrigation purposes, and that it is intended that the proposed development will utilise between 20 and 30 megalitres per annum for the production of bottled water. The hours of operation as originally proposed were for Monday to Friday 7.00am-5.00pm for packing, deliveries and despatch; Monday to Friday 7.00am-11.00pm production and packaging; and Saturday 8.00am-1.00pm for plant maintenance and servicing. Up to ten truck movements per week were proposed. 14 The development application lodged on 26 May 2008 was placed on public exhibition and notified, and a public community forum was held. During the notification and advertising periods the council received 61 written submissions, 60 opposed to the proposal and one in support. The concerns of the objectors related to: -the permissibility of the proposed use -incompatibility with rural residential use - inadequacy of existing roads -the number and impact of truck movements -noise from the bottling operation, forklift operation and truck movements -scale and bulk of proposed building -environmental impact of bottled water -waste management -compliance with conditions 15 The council refused the application on 16 February 2009, on the basis that the bulk, scale and design of the proposed building will be intrusive and not in keeping with the rural landscape character of the area. 16 Following a conference held under s34 of the Land and Environment Court Act 1979 on 9 June 2009, the applicant was granted leave to file amended plans. The changes made by the amended plans are summarised by the parties single expert Mr Gary Shiels in the following terms: -An increased and varied setback from McKee Road, increasing from east to west from 30m to 31.87m to 33.74m; -A reduction in the size of the building from a gross floor area of 2,430sq m to 1,747 sq m; -A reduction in the finished ground level from RL68 to RL66.5 together with a reduction in the height of building from approximately 7.5m to approximately 6.3m; -A reduction in the number of car parking spaces from 29 to 20, including one disabled car parking space; -The relocation of the car parking away from the southern and western sides of the proposed building to the eastern side of the site together with a reshaping of the driveway; -Landscaped mounding in front of the proposed building, landscaping along the driveway and landscaping around the proposed car park; and -A vehicle and truck manoeuvring area to the east of the proposed warehouse and behind the proposed car park. 17 The council notified the amended plans, and received 47 written submissions, 46 opposed to the proposal and one in support. The written objections raised similar concerns to those expressed in response to the original application, relating to traffic, noise, environmental and visual impacts; permissibility; and incompatibility with the rural residential uses. 18 A further community forum was held on 13 July 2009 and on 20 July 2009 the council determined to continue to defend the refusal of the application. Evidence 19 The hearing commenced on site with a view, and six residents (from Nos 315, 319, 335, 355, 255, and 295 McKee Road) explained their concerns. The Court was taken to two of the neighbouring properties on the other side of McKee Road, Nos 319 and 315 McKee Road. The principal concerns of the resident objectors were with the environmental impacts of bottled water; noise impacts in the valley from the operations, including forklifts and trucks; policing compliance with conditions; traffic; inadequacy of the road for additional truck movements; size and scale of the proposed building; permissibility of the proposed use; unsuitability of the site for industrial use; and impact on the amenity of the area. 20 Expert evidence was provided by Mr Gary Shiels as a parties single expert. Mr Shiels provided a report filed 5 June 2009 (the first report) in which he concluded that the shed as then proposed would appear quite prominent from the surrounding area; that the site was suitable for the type of development proposed; that the proposal would have an unnecessary impact on McKee Road; that the provision of car parking on site was excessive; and that while the proposal potentially had some economic benefits in the area and may provide for additional employment, the shed should reasonably respect the environment and not provide for an unnecessarily bulky building. Mr Shiels made a number of recommendations for amendments to the design. Mr Shiels provided a second report filed 14 July 2009 in response to the amended plans (the second report), the conclusions of which are discussed below. While on site Mr Shiels took photographs of the site and the views from the two neighbouring properties (Exhibit 14). The photographs show four height poles erected on the site to represent the completed dimensions and height of the building as agreed between the parties. Permissibility of the proposed development 21 Several of the written submissions, and some of the residents at the site view, questioned whether the proposed development is permissible under the relevant planning controls. This was not an issue between the parties, it being accepted by both that the proposed use is permissible with consent as an innominate use under the LEP. The LEP prohibits in Zone 1 "industries (other than rural, extractive, offensive or hazardous or potentially offensive or hazardous industries)". The Environmental Planning and Assessment Model Provisions 1980 (adopted by cl7 of the LEP) define a "rural industry" to mean "handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality". The processing and packaging of water as proposed in the application falls within this definition, and the development is permissible with consent. Visual impact 22 The council has framed its contentions in the Amended Statement of Facts and Contentions to address as three separate matters the issues of visual impact, rural landuse conflict, and suitability of the site. Central to all these issues is the issue of visual impact: impact on the scenic quality of the area, on the rural residential land uses in the locality, and visual impact from McKee Road because of the location of the building on the site. 23 The shed as proposed in the amended plans is to be 36m by 54m, with a gross floor area of 1,747sq m. The set back from McKee Road varies, increasing from east to west from 30.000m to 31.870m to 33.740m. The finished ground level is RL66.5 and the height of the building is approximately 6.3m. The amended plans indicate landscaped mounding between McKee Road and the building, and landscaping along the driveway and around the car park proposed for the eastern side of the site. The proposed car park has 20 spaces, included one disabled space.

24 The council contends that while the amendments have reduced the adverse visual impact of the development, the proposal is still unacceptable because of its bulk, size, setbacks, scale and its visual impacts in the locality. The council's contentions are that: -the proposal adversely impacts on the scenic quality of the area and is inconsistent with or incompatible with cl6(7)(c) of the REP, objectives (c2) and (e) of the Agriculture 1(a) zone, clauses 2.1, 4.3.3, 4.3.5 and 7.3 of DCP No 36 and objective 8 of the Wollondilly Agriculture DCP;

-the industrial built form of the proposal will result in landuse conflict between it and rural residential land uses in the vicinity, which is inconsistent with objective (c) of the 1(a) Agriculture Zone in the LEP and objective 3 of the Wollondilly Agriculture DCP; and

-the site is unsuitable for the development because the building has been situated in a visually prominent part of the site to avoid land subject to inundation by flood events; there is no other part of the site that could accommodate the proposal and the proposed location is not acceptable because of visual impact. 25 In the second report Mr Shiels provided the opinion that the site is suitable for the proposed use: it is a large parcel of land that appears to have been previously used for farming activities, and that it is reasonable to expect that the site might be used for a permissible non-residential activity. Mr Shiels concluded that with the amendments proposed in the amended drawings, incorporating the increased setback from McKee Road, a stepping of the south western façade, a relocation of the car parking spaces, the lowering of the height and a reduction in the bulk of the building, and landscaped mounding and landscaping generally, the impact of the proposed development on McKee Road will be acceptable. Mr Shiels noted that the colour selection for the building could assist in reducing impacts. In oral evidence Mr Shiels said that he had taken into account the objectives of zone 7(c), and had had concerns with the proposal as first proposed. The issue of visual impact, and how the proposal relates to McKee Road, had been foremost. He had not been onto the two properties visited during the view before he prepared either report; having now seen the view of the site from Nos 315 and 319 McKee Road he still maintained that the impact was acceptable. 26 Mr Shiels gave oral evidence on the issue of rural landuse conflict, which he defined to cover a situation where a use would have undesirable or unreasonable impacts on a rural area or agricultural lands through such issues as visual impact, noise, traffic, and effect on vegetation. Mr Shiels agreed that a consequence of rural landuse conflict can be that land becomes less suited to agricultural use over time. Mr Shiels' evidence was that taking the approach that the proposal was for a rural industry, there would not be a conflict. Findings 27 The area surrounding the site contains a mix of agricultural, rural residential and recreational land uses. The landscape character of the area is that of open pastures interspersed with rural dwellings and the occasional farm shed. The proposed shed is to be located above the 1% AEP flood level, and will be visible from McKee Road, and from the properties in the vicinity, in particular the properties that overlook the site from the higher ground on the opposite side of McKee Road. The external appearance will be that of a shed, albeit a large one. Based on the position of the height poles as observed on the view and as shown in photographs A, C and G (taken from No 319 McKee Road) and B and D (taken from No 315 McKee Road), while the shed will be visible from those properties, the building will not obscure the views from the residences on the properties on the other side of McKee Road of the vegetation along the Nepean River to the north east, or those along the slope towards the river from either side of the proposed shed. 28 The objectives of Zone 1(a) Agriculture in the LEP, cl 6(7)(c) of the REP, and the Agriculture DCP, have been set out above. Objective (c2) of the 1(a) zone relates to compatibility of non-agricultural land uses with the character of the zone, and objective (e) of the zone relates to the minimising of impact on existing agricultural landscape character. The Agriculture DCP refers (at B.4) to the importance of the rolling hills and open spaces of the area, and the retention of the rural landscape and agricultural outlook within Wollondilly. Objective 8 of the Agriculture DCP aims to ensure that development is sympathetic to the rural landscape surrounding areas. 29 The principles to be considered when assessing the compatibility of a proposal with its surroundings were set out by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. The Senior Commissioner said: 24. Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. -Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. -Is the proposal's appearance in harmony with the buildings around it and the character of the street? 30 I accept the evidence of Mr Shiels that the proposed building will not appear dominant in the local area, that the proposal is not an overdevelopment of the site, and that the visual impact is acceptable. The setback exceeds the building setbacks referred to in the Agriculture DCP. The proposal is compatible with the agricultural and non-agricultural uses in the locality, in the sense used in Project Venture Developments, namely "capable of existing together in harmony". While the shed will be visible, given the varied setback and landscaping proposed and in the context of the range of built forms in the area, it will have minimal impact on the existing rural landscape character, and will meet the objectives of the zone, DCP No 36 and the Agriculture DCP. 31 The council submitted that the site is located at the interface of the 1(a) Agriculture Zone and 7(c) Environmental Protection "C" (Rural Living Zone), and the development will have adverse impacts on the 7(c) zoned land. In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, Bly C set out the principle concerning development at zone interfaces. The Commissioner said:

As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 32 The expert evidence took into account the location of the site near the zone 7(c) land in considering both visual impact and how the development relates to McKee Road, and was to the effect that the proposed use as an agricultural industry is a permissible non-residential use, and the residents in the 7(c) zone should be understood to accept that the site can be used for a purpose permissible in the 1(a) zone. Based on this evidence I am satisfied that the proposed development has minimal impact on the rural residential character of the 7(c) zoned land and adjoining 1(a) Agriculture zoned land. 33 The Agriculture DCP considers the issue of rural land use conflicts in the following terms (at p4): One of the major issues of concern in rural areas is the potential for rural land use conflicts between agricultural production and rural living purposes. This problem has been generated by the sporadic development of rural residential developments in close proximity to the agricultural producers. In conjunction with the land use conflicts issue this Development Control Plan addresses issues relating to compatibility of adjoining land uses, the appropriateness of certain land uses, along with development considerations, landscape preservation and proximity to do to dwelling houses. … Agriculture Zone Development within the Agriculture Zone should be for agricultural production or a use associated with that production. Subdivision within the agriculture zone must be for the purpose of agricultural production on each lot to be created. Before a development application for a dwelling will be considered, a specific sustainable agricultural use must be established on the site and the conditions of subdivision complied with and completed. The intention of the Agriculture Zone is to allow for the preservation of the existing agriculture as well as new intensive forms of agriculture to locate within this zone subject to Council approval.

34 The primary focus of the Agriculture DCP is on minimising adverse impacts on agricultural uses of land in the 1(a) Agriculture zone. There is no evidence that the proposed use will have any adverse impact on agricultural uses of land in the 1(a) zone. The development is for a use associated with agricultural production, and is thus consistent with the aims of the Agriculture DCP. I am satisfied, based on Mr Shiels' evidence, that the proposal as a form of rural industry does not open the potential for conflict with other agricultural uses in the area. 35 Mr Shiels agreed that agricultural activity can impact adversely on residential uses. This is acknowledged at B.2 in the Agriculture DCP: The issue of rural land use conflict is a concern in Wollondilly, due to the diverse land uses which occur in the Shire. The biggest issue with rural land use conflict is that of trying to reduce the conflict. Rural land use conflict occurs as a result of noise, odour, farm chemicals, night time activities of agriculture, visual amenity, natural environment, stock damage and weed infestation as a result of rural residential development. 36 The Agriculture DCP addresses rural land use conflict more specifically in the form of separation distances (at B.2): This Development Control Plan is intended to minimise the potential for conflict. Council has taken the attitude that the responsibility will be on the newer development to undertake the necessary measures to reduce the impact of that development on adjoining land uses. Separation requirements will need to be applied to any new development in order to minimise these impacts. These will include distance, natural topography particularly escarpments, tree planting or a combination of these. 37 The concerns of residents relating to visual impact have been considered above; their concerns relating to noise generated by the operation of the development and the additional vehicle movements on the site and along McKee Road are considered below. I am satisfied, based on Mr Shiels' evidence, that the setbacks and landscaping proposed minimise any potential for conflict in a way that meets the objectives of the Agriculture DCP. 38 The site is some distance away from the Nepean River, and there was no evidence that the proposal would have an adverse impact in terms of the environment of the Hawkesbury-Nepean River system generally, or in relation to the riverine scenic quality considerations in cl 6(7)(c) of the REP. McKee Road 39 The council contends that McKee Road is not adequate to support the development, while conceding that this is an issue that can be addressed by approprate conditions of consent. Mr Shiels did not address this issue directly in his reports. The proposal will general additional vehicle movements along McKee Road, in particular from the 15 truck movements per week envisaged by the agreed conditions, and this will have an impact on McKee Road. I am satisfied that this impact can be addressed in the form of the agreed conditions which require the applicant to undertake work on McKee Road opposite the access point to the site and at other locations on McKee Road. Public interest 40 The council contends that the application should be refused having regard to the significant number of submissions made by residents objecting to the development, and the inconsistencies with the planning controls. The latter concerns have been addressed above. Many of the resident submissions, both written and oral, raised objections to the bottled water industry. The council did not raise this as an issue, and neither party provided evidence addressing this issue. Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979 requires consideration of the public interest, which includes consideration of the principles of ecologically sustainable development where issues relevant to those principles arise: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10. The relevance of these principles to the bottled water industry was considered by Senior Commissioner Moore in Tuite v Wingecaribee Shire Council [2008] NSWLEC 1315 in the following terms: 85 In considering the question of whether or not the principles of ecologically sustainable development (as discussed by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10; [2006] NSWLEC 133) are infringed and are sufficiently infringed to warrant refusal, there are two levels at which I could approach this issue (being an issue which arises, as earlier noted, from the residents' submissions).

86 The first would be to require the applicant to undertake an ecologically sustainable justification of the entirety of the bottled water industry. The second would be to require the applicant to justify the ecological sustainability of the particular proposal in the context of the existence of the bottled water industry (and making no judgment, in itself, about the ecological sustainability of that industry in the broader context).

87 The applicant has provided statements of evidence on the assumption that I would approach this issue from the second of those propositions.

88 Although the objections which were put by the objectors are in broad terms and, prima facie, relate to the first of these possible bases for consideration of this issue, I am satisfied that this is not an appropriate instance where the applicant should be required to respond on such a basis. Indeed, absent detailed evidence or submissions challenging the ecologically sustainability of the industry in its entirety - there merely being broad expressions of concern by lay objectors - I consider I would be improperly broadening the terms of my enquiry if I were to do so.

89 I have therefore proceeded to consider whether, in the context of the existence of a bottled water industry (whether the broader industry is ecologically sustainable or not), the present activity is ecologically sustainable in such a context. 41 The concerns of residents in the written and oral submissions refer to both aspects identified in Tuite. As was the case in Tuite, there is before me an absence of evidence challenging the ecologically sustainability of the bottled water industry in general, and I make no findings in that regard. Adopting the approach taken by Moore SC, and considering in the context of the existence of a bottled water industry (whether the broader industry is ecologically sustainable or not), whether the present activity is ecologically sustainable, the only evidence before me is that the proposal is to extract water from an existing bore which is already the subject of a Groundwater Extraction Licence, and that the total amount of water authorised to be extracted will not exceed that currently authorised. There is no evidence before me concerning any impacts of transportation or the use of plastic or other bottles in this context. The agreed conditions include a deferred commencement condition requiring the applicant to provide evidence that the Groundwater Extraction Licence is amended in terms which are consistent with a limitation of 15 truck movements out of the site per week and a water extraction not to exceed 20Ml/annum. In those circumstances, I am satisfied on the limited basis of consideration of ecological sustainability appropriate for consideration in these proceedings that this does not constitute a basis to refuse the application. Other issues 42 Several of the written submissions, and the residents at the site, raised concerns about the adverse noise impacts of truck and vehicle movements to and from the site. The council did not raise these concerns as an issue. It is not in dispute that there will be additional vehicle movements to and from the site. Any permissible rural industry development on the site would be likely to generate additional vehicle movements, and those associated with this proposal would not be a basis for refusal of the application. Any adverse impacts can be addressed in conditions limiting the number and timing of truck movements. The agreed conditions limit truck access to the site to 15 trucks per week (resulting in 30 movements per week), between the hours of 9.00am-3.00pm on Monday to Friday, and prohibit articulated trucks. 43 An additional concern raised by residents related to noise generated by the operations of the water bottling facility itself and by vehicle movements within the site. The council did not raise this as an issue in these proceedings. The report provided by council officers for the meeting of 20 July 2009 accepted that while there was merit to these contentions, this could be addressed by conditions of consent. I am satisfied that while there are likely adverse noise impacts, these would not be a basis for refusal of the application and can be adequately addressed by conditions. The agreed conditions include conditions limiting the hours of operation for packing, deliveries and dispatch, and production and packaging to 7.00am-5.00pm Monday to Friday, and 8.00am-1.00pm for maintenance and servicing on Saturday; requiring loading and unloading operations to take place within the building; a prohibition on the use of any vehicle that emits a reversing alarm within the site other than between 7.00am-5.00pm Monday to Friday; a condition limiting noise from the use of the premises; and a condition requiring compliance noise monitoring.

44 I have concluded that there are or may be some adverse impacts of the proposal, in particular impact of additional vehicle movements to and from, and within the site, and from the operations of the facility. In my view, these are not such as to warrant refusal of the application, individually or cumulatively, and can be addressed by appropriate conditions of consent. Orders 45 The orders of the Court are: 1. The appeal is upheld. 2. The development application (No D325-08) for the erection of a building to be used as a water bottling facility on Lot 66 DP 258766, known as 300 McKee Road Theresa Park, is approved subject to the conditions at Annexure A. 3. The exhibits, except Exhibits A, 2 and 14, may be returned. Linda Pearson Commissioner of the Court

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.

(2004) 138 LGERA 237

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Cases Cited (7)