Bellbay v Hawkesbury City Council

CASES CITED: Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

APPLICANT Mr P Tomasetti SC SOLICITORS Gregory J Halpin LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10589 of 2007 Bellbay Pty Limited v Hawkesbury City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hawkesbury City Council (the council) of DA 0263/07 for the construction of an animal establishment at 50 Jordan Avenue, Glossodia (the site). The site and surrounding area 2 The site is part lot 3 in DP 8714. It is rectangular in shape having an average width of 201.7 m and an average depth of 394.3 m providing a total land area of approximately 7.9 ha. The site has a frontage to Spinks Road running along its northern boundary and Jordan Avenue along its southern boundary. The land slopes upwards from Jordan Avenue to Spinks Road by approximately 8 m.

3 The site has been used for grazing of livestock and contains a mixture of open pasture and stands of native vegetation. The site contains a number of buildings, sheds, dams and is fenced into a number of paddocks. To the north, south and west of the site the land is used for a mixture of rural and agricultural activities.

4 The land situated immediately to the east (30 Jordan Avenue) is currently vacant and contains a stand of native vegetation. Allotment sizes in the area are variable, generally ranging between 1.39 ha and 10 ha. A guide dog training facility is located one lot to the east of the subject site (6 Jordan Avenue). The proposal 5 The development involves the construction of two kennel buildings designated Dogs 1 and Dogs 2, each containing 32 kennel enclosures and 3 quiet kennels, a small kennel building containing 4 enclosures, a cattery building containing 25 enclosures and an administration building which is to contain an administration area, a utility room, enclosed unloading area, store and amenities. In addition, 6 fenced exercise areas, acoustic fencing, access driveways, parking areas and an onsite effluent disposal system are proposed in conjunction with the proposal. The facility is proposed to accommodate a maximum of 92 dogs and 25 cats at any one time. Relevant planning controls 6 The subject land is zoned Mixed Agricultural under Hawkesbury Local Environmental Plan 1989 (LEP 1989). Clause 9 - Land Use Matrix of LEP 1989, provides that animal establishments constitute a permissible form of land use within the zone. Clause 5 provides the following definition: "Animal establishment" means a building or place used or intended for use for the intensive purposes of husbandry, boarding, training or the keeping, or any combination of them, of animals, birds and fish ."

7 Clause 9A(1) provides that before granting development consent the proposal must be consistent with the relevant objectives of the zone.

8 The relevant objectives are: ( b) to ensure that the development does not create or contribute to rural land use conflicts, and.

(g) to ensure that development retains or enhances the existing landscape values that includes a distinctive agricultural component.

9 Sydney Regional Environmental Plan - Hawkesbury and Nepean River No 20 also applies, however there is no specific planning considerations that relate to the proposed use or any issues raised by the council in relation to this plan. The issues 10 The statement of Facts and Contentions raise the following issues with the proposed development: (1) unacceptable noise; (2) unacceptable odour; (3) inconsistency with zone objectives; (4) inadequate waste disposal system that will potentially lead to increased health risks (flies, mosquitoes) through runoff of effluent. The evidence 11 The parties agreed to the appointment of Mr Kerry Nash as the Court-appointed town planning expert and Mr Neil Gross as the Court-appointed expert on acoustic issues. Dr Kerry Holmes provided additional evidence for the applicant on odour. Dr Daniel Martens, for the applicant and Dr Robert Patterson for the council provided a joint report on effluent disposal.

12 The following residents provided evidence on site: o Mr Anthony Chalhoub on behalf of his father, the owner of 30 Jordan Avenue; o Mrs Vella on behalf of her son and daughter-in-law, the owners of 64 Jordan Avenue; o Mrs Kerry Kajkez of 38 Spinks Road; o Mr Leonard Brown of 17 Jordan Avenue; o Mrs Flora Robson of 31 Jordan Avenue; o Mrs Tessi Ripa of 82 Jordan Avenue; o Mrs Kerrie Monzo of 75 Spinks Road; o Mrs Margaret Galea of 51 Jordan Avenue; o Mr Micaleff of 71 Jordan Avenue; and o Mr Emanuel Sherry of 89 Jordan Avenue.

13 The Court also had the benefit of the submissions provided to the council when the development application was advertised. Noise 14 Noise was the significant issue in the proceedings and was a consistent concern of those residents who gave evidence on site and in the submissions provided to the council.

15 Mr Gross provided a preliminary report and a final report. In his consideration of the potential noise impact Mr Gross also had access to the following reports: o report by PKA Acoustic Consulting dated January 2004 provided by the applicant for a similar development application on the site; o report by Challis Consulting Pty Limited dated June 2004, commissioned by the council to independently review the report by PKA Acoustic Consulting; o report by Renzo Tonin & Associates Pty Limited, dated January 2007, to examine the construction of the walls, roof and internal acoustic insulation.

16 Mr Gross concluded that the proposed development could be designed, constructed and operated to meet the requirements of the New South Wales Department of Environment and Climate Change - Industrial Noise Policy (the Policy). The other reports recommended changes to the original design, however I did not understand there to be any dispute that an appropriate design could be prepared to satisfy the requirements of the Policy.

17 A number of matters arose during the evidence on the noise issue that require further consideration. Firstly, Ms Schofield, for the council, submitted that despite the compliance with the Policy, noise would still be audible. This is clearly correct, as the standards in the Policy have been adopted to protect at least 90% of the population living in the vicinity of an industrial noise source for at lease 90% of the time.

18 Relevantly, the Policy states that if the criteria are achieved, then it is unlikely that most people would consider the resultant noise levels excessive. If the noise criteria are not met, it does not automatically follow that people affected by the noise would find it unacceptable. The Policy does not advocate a total absence of noise but accepts that there is a very large range of human reaction to noise. The Policy seeks to place some parameters on a subjective area of consideration and as such should be the ultimate basis for consideration. The importance of relying on authoritative and scientifically credible standards is set out in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (at pars 98 to 100).

19 Secondly, the residents and the council placed significant weight on the existing noise problems associated with the guide dog facility near the site. The facility was approved in 1997 and despite letters to the council no evidence was provided to indicate the council had taken any action whatsoever to address the concerns of the residents. At the request of the council, Mr Gross had undertaken noise readings of the guide dog premises and confirmed that the noise would not satisfy the criterion in the Policy. Mr Gross also explained the significant difference between the proposed development and the guide dog facility in terms of the design and the differences in noise attenuation.

20 In my view, any reliance on the guide dog facility as a comparison to the proposed development would be unsound. It would be unreasonable to rely on a clearly non complying development (in terms of noise) to compare to the proposed development. The noise associated with the guide dog facility is a separate issue to the proposed development, although on the evidence of Mr Gross and the local residents it is an issue that needs to be addressed.

21 Thirdly, the issue of cumulative noise was raised. I accept this is a valid consideration in relation to the proposed development. It is a matter that was addressed by Mr Gross who stated that the Policy does not provide any more stringent criteria where two facilities may operate at the same time. Essentially, the Policy requires that each operator meet their own noise limits based on the background noise, independent of other noise sources in the area. As stated previously the guide dog facility does not satisfy the criteria in the Policy based on the data collected by Mr Gross, however I do not accept that the applicant should be disadvantaged by the operation of this facility when all reasonable attempts have been made to address and satisfy the appropriate criteria within the Policy.

22 Fourthly, the owners of both adjoining properties to the site raised additional concerns over noise. Mr and Mrs Vella at 64 Jordan Avenue and Mr and Mrs Chalhoub of 30 Jordan Avenue maintain that the particular circumstances associated with each property warranted additional considerations. 23 In the case of 64 Jordan Avenue, Mrs Carmen Vella is currently hospitalised following a serious accident and will ultimately be confined to the dwelling on the site. It was submitted that her condition would make her more sensitive to any noise disturbances. The question to be answered is whether the development application should be rejected because of the medical condition of Mrs Vella. I accept that some consideration should be given to Mrs Vella's medical condition, however I am not satisfied that it would be reasonable, in balancing the competing needs of Mrs Vella and the applicant, that the development application should be rejected for this reason. I am, however, satisfied that some additional measures can be undertaken to minimise potential noise impacts.

24 Conditions 76A and 83 relate to the noise levels measured at the nearest residence. The applicant proposes a level of 45 dBA consistent with the Policy whereas the council proposes a level of 42 dBA, this being consistent with previous noise study undertaken by the applicant. The applicant opposes the 42 dBA limit although the evidence of Mr Gross is that there is no reason why the proposal cannot achieve a level of 42 dBA. On this basis I see no reason why the lower level should not be imposed through conditions 76A and 83.

25 A further measure to provide additional comfort to Mrs Vella would be to increase in the height of the administration building (and consequently an increase in the acoustic shielding) to 6 m with a corresponding increase in the adjoining acoustic fencing. This can be undertaken through an appropriately worded condition. This height would be consistent with the amendment to the building identified as Dogs 2.

26 30 Jordan Avenue is currently vacant and for sale, although development consent was granted on 13 July 2007 for a dwelling and garage located some 60 m from the Jordan Avenue frontage and 10 m from the common boundary with the subject site. While not originally taken into consideration by Mr Gross, he stated that the location of the proposed dwelling would satisfy the industrial noise policy criteria providing that the building designated Dogs 2 was increased in height to 6 m.

27 Mr Chalhoub maintained that his property would be sandwiched between the proposed development and the guide dog facility making his retirement to the property unbearable because of the likely noise. He further stated that the property would lose considerable value because of its location between two dog establishments. Evidence was also provided from a doctor indicating Mrs Chalhoub's medical history and stating that to "attain a favourable result from her management, a stable supporting and relaxing environment would be of great benefit".

28 As with the concern expressed over Mrs Vella's medical condition, I am satisfied that the circumstances do not warrant the refusal of the development application for the reasons suggested by Mr Chalhoub. As I understand, the location of the proposed dwelling 10 m from the site was chosen to avoid noise from the guide dog facility and to anticipate the future subdivision of the land. The evidence of Mr Gross is that the proposed location of the dwelling would satisfy the criteria in the Policy with some modification to the building designated Dogs 2. The applicant did not oppose the increase in height of this building.

29 I am also not satisfied that the concern over potential valuation of the property would support a refusal of the application. The proposed development is a permissible use in the zone and is a form of development contemplated by LEP 1989 in this zone. Odour 30 Dr Holmes addressed the issue of odour. She was not required for cross-examination and her evidence remained unchallenged. She states that odour modelling has been undertaken for the proposed boarding kennel at Jordan Avenue using site representative meteorological and odour emissions data. The modelling was undertaken in accordance with approved methods and a conservative approach was adopted in terms of kennel occupancy rate and odour criteria.

31 Good housekeeping practices such as prompt cleaning up of droppings in the kennels and exercise yards and regular daily cleaning of kennels has been assumed. It is her understanding that all collected animal droppings will be sealed in plastic bags and removed from the site via a waste collection service. The odour impacts presented are the combined impacts of the sewage treatment plant and the kennel building emissions. Conservative (that is an over-estimate) approaches have been used in estimating emissions from both sources. The conclusions drawn for the modelling study based on the odour control measures outlined in Dr Marten's report are that the kennels will be able to operate in the area without adverse impacts on neighbouring residences. 32 I note that the Dr Martens report relied on by Dr Holmes for her conclusions was an early version and provided for surface irrigation to treat effluent rather than the proposed below ground disposal system, ultimately accepted by both effluent experts. Dr Holmes also provided a further report indicating that the proposed dwelling at 30 Jordan Avenue will also satisfy the relevant criteria and that her conclusions would not change. Effluent disposal 33 Dr Martens and Dr Patterson addressed the issue of effluent disposal in a joint report. Dr Patterson recommended amendments to the design that included a change from spray irrigation to below ground disposal of treated effluent. Dr Martens adopted the change. Overall, there was no dispute between the experts that the disposal of effluent from the proposed development could be carried out in an acceptable manner.

34 Notwithstanding the agreement of the experts, the concerns of the local residents remained in relation to the overland flow of effluent to adjoining properties and the potential impacts associated with crop production on the larger crop production properties. Based on the agreed position of the experts I am satisfied the effluent disposal system is appropriate and that there will be no adverse impacts on adjoining properties. The change to below ground disposal of treated effluent adds an additional degree of comfort to this conclusion. Traffic 35 The residents raised additional traffic impacts as an issue. I note that this issue was addressed in the report to the council on 10 July 2007 where it is stated that the likely traffic to be generated by the proposed development can be adequately accommodated within the surrounding road systems. This was also a conclusion reached by Mr Nash. Based on the site view I accept that the additional traffic will not adversely impact on the amenity of the area. Zone objectives 36 Mr Nash addressed zone objectives (b) and (g). In relation to objective (b), Mr Nash states that it can be reasonably assumed that the proposed use was envisaged to be a complementary use within the zone as it was a specifically defined use and permissible in this zone. Based on the evidence of Mr Gross on noise, the joint report of Dr Martens and Dr Patterson on effluent disposal and the ability of Jordan Avenue to accommodate the likely traffic generated by the proposed development, he sees no inconsistency with this zone objective.

37 For objective (g), Mr Nash notes that a number of larger lots are dedicated to intensive market gardening while the smaller lots are generally used for rural/residential uses and with a significant amount of remnant vegetation retained. The proposal provides minimal clearing and the scattered remnant vegetation on the site is to be retained. Combined with the revised landscaping plan and proposed buildings that are in scale and character with the locality, Mr Nash concludes that the proposal is consistent with the objective (g0.

38 With the benefit of the site view, I accept the conclusions of Mr Nash and find that in accordance with cl 9A(1) the proposal is consistent with the relevant zone objectives. Conditions 39 The applicant opposed a number of the conditions sought to be imposed by the council. These are: Condition 12 - this condition deals with the location for noise measurements. I accept the applicant's version of this condition, as it is consistent with Policy. Condition 36A - this condition requires an automated irrigation system for the hedge planting around the proposed buildings. I accept that this condition should be retained to ensure the ongoing maintenance of this part of the proposed landscaping. Conditions 4A(i) and (j) - these conditions require a piezometer to monitor any leakage of the sewage treatment plant (condition 4A(i)) and soil monitoring (condition 4A(j)). As I understand these requirements did not form part of the joint report of Dr Martens and Dr Patterson and as such can be deleted. Condition 83 - this condition was not opposed but should be amended to ensure that compliance testing is undertaken when the facility is at or near capacity rather that non peak times. Condition 86 - this condition advises that the council will carry out annual inspections. In my view, this condition can be deleted as inspections can be carried out at any time to ensure compliance with the conditions of consent. Condition 87 - this condition requires no internal or external alterations to be undertaken without council approval. This condition can be deleted as alterations are more properly addressed through the requirements of the Environmental Planning and Assessment Act 1979.

Orders 40 The orders of the Court are: 1. The appeal is upheld.

2. Development Application DA 0263/07 for the construction of an animal establishment at 50 Jordan Avenue Glossodia is approved subject to the conditions in Annexure A

3. The exhibits are returned with the exception of exhibits 1, C, G and H.

      G T Brown
      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.