Clive Lucas, Stapleton & Partners v Campbelltown City Council

CASES CITED: Southside Business Centre Pty Ltd v Rockdale City Council [1998] NSWLEC 215; Moy v Warringah Council [2004] 133 LGERA 49; 142 A Crim R 577; NSWCCA 77

APPLICANT Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

07/10528 Clive Lucas, Stapleton & Partners v Campbelltown City Council

JUDGMENT Introduction 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Campbelltown City Council (the Council) of Development Application 2306/2006 to permit Blair Athol House (the house), 23 Blair Athol Drive, Blair Athol (the site) to be converted into a function centre with the construction of an additional pavilion to the west of the present house; the creation of extensive parking in the eastern portion of the curtilage of the house; and conversion of the present single access driveway at the eastern corner of the site to two entrances with an additional access point at the western edge of the site's frontage to Blair Athol Drive. Blair Athol Drive is a loop road within the Blair Athol Estate - the former is constructed so that it is difficult for larger vehicles to traverse if cars were to be parked on both sides of the road. Blair Athol Estate is a comparatively recent subdivision on the slopes of the hill upon which the house was constructed in the late nineteenth century.

2 Following the site inspection and the on-site evidence given by a range of residents objectors who live in the immediate vicinity of the site, a further Court hearing had was held during which a variety of deficiencies in the application (which had emerged during the site inspection) were sought to be addressed by the applicant.

3 These included the design and location of acoustic barrier screens; a re-design of the car park and a design of the proposed western access point - being an access point to be added to the plans in response to concerns expressed by Mr Hallam, the single parties' traffic expert.

4 At the court hearing after the site inspection, leave was given to the applicant to prepare amendments to the plans and provide additional evidence. This additional material was contingent on the Council having the opportunity to re-notify the amended plans and seek comments from the residents

5 Issues which arise for consideration out of such amendments include the appropriateness of the final design of the acoustic barrier; the acceptability of the final design of the revised car park; and headlight impact on residents on the southern side of Blair Athol Drive opposite the western driveway from which all vehicles would access the local road network when departing from the premises after 10 o'clock at night.

6 During a resumed hearing on 25 September, a number of documents were tendered on behalf of the applicant and several other documents were foreshadowed should a subsequent stage of the appeal be appropriate.

7 These documents included foreshadowed evidence about headlight impacts on residences opposite on the southern side of Blair Athol Drive opposite the late evening exit point, and a further suite of material, via the vehicle of an affidavit from the applicant, dealing with questions of economic viability of the proposed function centre.

The planning context 8 However, during the course of this resumed hearing, it was also obvious that there were two issues arising out the provisions of the Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP) which were capable of being dealt with as a separate issues prior to a resumed hearing on the remaining matters (should that be required). This course was taken to avoid unnecessary delay and expense to the parties if the applicant were to fail on either of these issues.

9 Each of those issues, I was satisfied, was potentially determinative in the context of the provisions of the LEP.

10 The planning context within which the application is to be considered is set out in the following paragraphs. 11 The LEP, by cl 9, zones the site Zone 2 (b) - Residential B Zone. "Refreshment rooms", being the defined use within which a function centre falls, is a use prohibited in this zone by cl 9(5). The application must, therefore, fail unless granted a lifeline by cl 50 - the relevance of which arises as follows:. o The house and its existing curtilage are identified in Schedule 1 of the LEP as being part of a group of structures of local heritage significance. o The aims and objectives of the LEP, as set out in cl 2, include (g) to ensure that heritage items are identified and protected. o This protection is afforded by two clauses in the LEP specifically dealing with development relating to heritage sites. o The first is a range of protective provisions contained in cl 44 [presently irrelevant] and the second is an incentive provision contained in cl 50. The provisions of cl 50 - Conservation incentives are cumulative not alternative and read as follows: The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though the use would otherwise not be allowed by this plan, if: (a) it is satisfied that the retention of the heritage item depends on the granting of consent, and

(b) the proposed use is in accordance with a conservation management plan which has been endorsed by the consent authority, and (c) the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and (d) the proposed use would not adversely affect the heritage significance of the heritage item or its setting, and (e) the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent.

12 The consequence necessary is that, unless the proposal is able to satisfy the facultative and beneficial provisions of clause 50, in all respects, on these two potential amenity impacts, it must meet refusal.

13 This test, of course, would apply to each of the other (presently deferred) aspects of the proposal which are, as earlier noted, in contention.

14 However, that this stage of the proceedings, I am to consider and determine only two of the matters in contention. Clause 50(e) is the crux of the present consideration of these aspects of the application. As set out above, this requires that the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent.

15 These matters in contention are whether or not both two critical noise issues, which are incapable of being addressed by any physical acoustic barrier around the perimeter of the site, can satisfy cl 50(e). 16 First, for both matters, I need to determine what is the surrounding area.

17 Then, separately for each of these two matters, I must determine, precisely what, to the extent that this is able of being concisely and accurately described, are its potential impacts on the amenity of the area; and whether or not this impacts on that area is "to an insignificant extent".

The two issues 18 These two noise issues emerged which are capable of immediate consideration and determination being reached with respect to them at this stage of the proceedings.

19 If the applicant were to fail either of them, the appeal itself must fail.

20 These issues arose from the evidence of Mr Cooper, the single parties' acoustic expert, who gave evidence (both on site and in court) concerning the likely acoustic impacts of the proposal.

21 Whilst his evidence also covered a range of issues not subject to this preliminary determination, including noise barriers around the perimeter of the site, the two issues now to be determined arise from acoustic impacts on the residences on the southern side of the Blair Athol Drive opposite the site.

22 The first of these is the question of noise impact on these residences which would arise if bridal parties or other official groups were being farewelled outside rather than within the confines of the proposed pavilion or the confines of Blair Athol House. 23 The second arises from the degree of compliance or otherwise with the criteria for environmental road traffic noise established by the Environment Protection Authority (the EPA). The relevant noise to be considered against these criteria is the noise generated by vehicles leaving the premises after 10 o'clock at night and doing so by the proposed sole, western departure point.

Official party departures 24 It was Mr Cooper's evidence, based on his experience from assessing the acoustic impact of other broadly similar facilities, when coupled with the background noise readings which he had taken at the site, that it was imperative that there be not a single instance taking place of the understandable, celebratory and usually raucous farewelling of official guests at functions - particularly bridal parties departing from wedding receptions.

25 It was his evidence that the impact of even a single such occurrence would be entirely unacceptable and that, unless I could be satisfied that no such occurrence would occur, the proposal should be considered unacceptable.

26 There is no external physical control structure proposed by the applicant to deal with this issue. Indeed, there might be heritage impacts, about which I do not need speculate, if such structures were proposed.

27 The applicant, however, proposes, in the plan of management, to eliminate this noise, to require that such farewells take place either within the proposed pavilion or within the confines of the house. Proposed cl 7.5 of the plan of management reads: During special evening events where special guests are leaving eg bridal party, after 8.30 p.m. the farewell will take place within either the Garden Pavilion or Blair Athol House.

28 Although the plan of management contains no further detail of how this is to be achieved, I do not consider it appropriate to conclude that it is not capable of achievement, at least at this point of the evidence.

29 As I put to Mr Seton, solicitor for the Council, during the course of the most recent hearing, to deny the applicant an opportunity to demonstrate how this would be achieved, had the second issue with which I am now dealing not proved fatal, would, in my view, have been to deny the applicant procedural fairness.

30 The Council's position would have been capable of protection, in the traditional fashion, by an adjournment and appropriate costs undertakings being sought from the applicant as the price of such an adjournment.

Departing vehicle noise 31 The second issue which arises for consideration is the matter of departing vehicle noise, after 10 o'clock at night, and its impact on the amenity of the residences on the southern side of Blair Athol Drive in the vicinity of the western driveway (after 10 o'clock this will be the sole egress proposed to access the local road network).

32 It was Mr Cooper's evidence that this exit point was, in broad terms, at the midpoint of Blair Athol Drive from the access/exit to/from the Blair Athol Estate via Blaxland Road (the nearest major trunk road).

33 It was also Mr Cooper's evidence that, if all vehicles exiting the site after 10 o'clock at night were to turn left, that is to the east, and travel around Blair Athol Drive to access Blaxland Road, the noise level at the adjacent residences on Blair Athol Drive would fail to comply with the EPA's guidelines noted above.

34 It was his further evidence that, if the departing traffic after 10 o'clock at night were to disburse in an evenly distributed fashion to the east and west around Blair Athol Drive to access Blaxland Road, the noise impacts on adjacent residences on the southern side of Blair Athol Drive would be just acceptable.

35 Mr McKee, solicitor for the applicant, submitted that there was a range of provisions able to be incorporated in the management practices of the proposed facility which would encourage drivers to disburse in both directions.

36 I propose to assess this issue on the basis that departing traffic after 10 o'clock at night can be managed so that it disburses in such an evenly distributed fashion to the east and west as this is the position that puts the applicant's case at its highest. If the applicant fails on this basis on this issue, he cannot succeed on any less satisfactory traffic distribution basis. The surrounding area 37 There was some discussion as to whether the surrounding area was the whole of the Blair Athol Estate or could be confined to the residences on the southern side of Blair Athol Drive in the vicinity of the site. 38 I was taken to the decision of Pearlman CJ in Southside Business Centre Pty Ltd v Rockdale City Council [1998] NSWLEC 215 where Her Honour, dealing with submissions canvassing whether an expansive view should be taken (in this instance the Blair Athol Estate context) when assessing impact on a locality or a more restricted view (in this instance the context of the residences on the southern side of Blair Athol Drive) said: The assessor divided the amenity into two components - "precinct impact level" and "localised impact level". Whilst the assessor said that together the two components constituted the amenity of the area, he chose to rely entirely on the impact upon the next door premises as constituting something more than "little or no adverse effect". Mr Moses submitted that it was an error not to take into account the impact upon the whole of the amenity of the area. I can, however, discern no misunderstanding or misapplication of the statutory formula on the part of the assessor. The amenity of the next door premises is part of the amenity of the area, and the assessor found the impact upon those premises to be "considerable and unacceptable". There is no warrant for holding that a considerable adverse impact upon the amenity of one part of the area is rendered negligible if there is no considerable adverse impact upon the remainder of the area. His division of the amenity into two components does not derogate from this conclusion, because he recognised that that the amenity of the area comprised both components. 39 I accept, therefore, consistent with this approach, that if the amenity of the residences on the southern side of Blair Athol Drive in the vicinity of the site are affected adversely otherwise than to an insignificant extent, the proposal cannot satisfy cl 50(e) of the LEP and must be refused - even if there is no such general amenty impact on the whole or a major part of the Blair Athol Estate.

An insignificant extent 40 Mr McKee put, in his submissions, that, if the applicant satisfied the cl 50(e) test in the LEP, he would "sail through" the relevant test under s 79C of the Act. This is undoubtedly correct but also acknowledges that this LEP test poses a higher hurdle than that for an ordinary assessment under s 79C of the Act.

41 Mr Seton, on the other hand, put the proposition that "just acceptable" did not satisfy the test of an impact which will to an insignificant extent adversely affect the relevant residences.

42 On this topic, although not relying on it, I am assisted by the Macquarie Dictionary definition of insignificant [provided to me by Mr Seton]. This definition reads, relevantly: 1. unimportant, trifling, or petty, as things, matters, details, etc. 2. too small to be important:

43 Mr McKee put the proposition, in effect, that putting the bar at the level which would flow from a strict application of the dictionary definition quoted above would effectively render cl 50 sterile. He proposed that the test was that the impact needed to be "unreasonable". 44 It is clear that, like s 96 of the Act, cl 50 of the LEP should be treated as a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision: (see Moy v Warringah Council [2004] 133 LGERA 49; 142 A Crim R 577; NSWCCA 77 per Sperling J at para 80 - discussing s 96 of the Act). 45 As a consequence, whilst I am satisfied that, if I were to apply a de minimus test, I would be placing an unduly onerous burden on the applicant, it is also appropriate that I accept the implied concession by Mr McKee that something more than merely adequate or acceptable is required - bare acceptability being the threshold which must be met in an assessment under s 79C of the Act. 46 It was Mr Cooper's evidence, as noted above, that the best outcome for the applicant on this issue is a just acceptable impact on the amenity of the residences on the southern side of Blair Athol Drive in the vicinity of the western access point. 47 Effectively, Mr Cooper's evidence is that the optimum traffic management regime, if able to be complied with at all times, would only just achieve departing traffic noise compliance after 10 o'clock at night for the residences on the southern side of Blair Athol Drive in the vicinity of the site. 48 This means, in conventional s 79C assessment terms, it would just get by - it certainly would not, in Mr McKee's own words "sail through" such a s 79C assessment. On the test posed by cl 50(e), just getting by, in the context of an entirely residential setting such as this, to double negative Mr McKee's formulation of the test (if he be right), could not be not unreasonable.

49 This does not set the bar so high as to render the benefits of cl 50 illusory but does mean that it is significantly lower than a conventional s 790C acceptability threshold.

50 On this basis, there is no possible way that an impact on the relevant residences assessed by Mr Cooper as being just acceptable could equate to such an impact being to an insignificant extent. The applicant must therefore fail the cl 50(e) test on this point.

Can a trial period be permitted? 51 However, reaching that conclusion does not necessarily extinguish all matters which arise to be considered on this topic.

52 I invited the advocates to address me on the question of the whether it would be possible for me to grant consent structured in a fashion which incorporated a trial period on either or both the issues I considered above.

53 Mr McKee indicated that a trial period on either issue would be appropriate provided it was sufficiently long to permit the applicant to render the capital costs involved in the erection of the proposed pavilion and the other works an acceptable commercial risk. He proposed such a trial period might be confined to the period between 10 pm and 11 pm with the earlier proposed operating times being given a permanent consent.

54 Mr Seton, on the other hand, submitted that the terms of cl 50 did not permit the imposition of a trial. He based this submission on the effect of the preamble in cl 50 to the five tests it requires must be satisfied. The preamble reads: The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though the use would otherwise not be allowed by this plan, if:

55 The necessary corollary is that, if I am not able to be satisfied on all tests, I may not grant consent on any terms. 56 As I cannot conclude that the application can satisfy cl 50(e) on the issue of noise impact of departing vehicles after 10 pm, I cannot grant any consent which permits such departures on any (even a trial) basis.

Conclusion 57 The necessary result of this failure on departing vehicle noise is that the application cannot succeed.

58 The consequence is that the orders of the Court are: 1. The appeal is dismissed; 2. Development Application 2306/2006 to permit Blair Athol House, 23 Blair Athol Drive, Blair Athol to be converted into a function centre with the construction of an additional pavilion to the west of the present house; the creation of extensive parking in the eastern portion of the curtilage of the house; and conversion of the present single access driveway at the eastern corner of the site to a two entrance driveway with an additional access point at the western edge of the site's frontage to Blair Athol Drive is determined by refusal of development consent; and 3. The exhibits are returned.

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