Covercopy Pty Limited v Cessnock City Council

The site and its context 4The application relates to Lot 401 DP 1144232 (the site) which is that lot created in accordance with the restriction on release by condition 1 of the stage 2 consent. That consent applied to land in Cessnock located at the northern end of Anstey Street and to the north of dwellings fronting Anzac Avenue. Subdivision of the original land, including all roads and services required for stage 2, has been completed in accordance with the consent as modified and dwelling houses and two multi-unit housing developments have been constructed in the vicinity of the site. Those dwelling houses are predominantly single storey and have landscaped front yards without any fences forward of the building alignment. 5A concrete batching plant is located to the west of the site on the opposite side of Garland Street. Garland Street is an extension of Anstey Street. The plant operates under existing use rights as the land on which it is erected is zoned for residential purposes. Land further to the north is open rural land and to the south, earlier residential development in the Cessnock township.

The proposal 6The consent provided for the site to be further subdivided into ten lots when the concrete plant ceases operation. Five of the lots would front Garland Road and five to Robina Way. Alpine Avenue forms the southern boundary of the site. 7The application proposes to modify the approved subdivision pattern of the site by the creation of six lots at the northern end, each with a site area of 480 sq m (proposed lots 452-457) and one residue lot, Lot 451, which would have an area of 2405.6 sq m. The applicant is seeking release of proposed lots 452-457 with no residential development allowed on Lot 451 until such time as the concrete batching plant relocates. A plan indicating the proposed subdivision and the location of the concrete batching plant is provided in Annexure 1. 8To address noise from the concrete plant, the applicant proposes to include an 88E instrument pursuant to the provisions of the Conveyancing Act 1919 on Lots 452-457 . The terms of that instrument require side and rear boundary fending to be in the form of an acoustic wall 1.87 m high. That fence is to taper from 1.87 m at the 6 metre building line to 1.2 m at the front boundary of each allotment. In addition, a requirement that all dwellings be designed so that the primary private open space area is located on the north facing side of the said dwelling. The restriction is to remain in force until such time as the concrete batching plant is closed and/or relocated from the Anstey Street site. 9The applicant proposes a condition be attached to any modified consent granted that would relate to proposed lot 451. That condition reads as follows: Until such time as the Concrete Batching Plant permanently ceases to operate, no residential development is to take place on Lot 451.

The issues 10The issues in the case are whether:

• the site is suitable for subdivision for residential purposes;
• it is reasonable to restrict use of the site for residential purposes in accordance with its zoning due to the continued operation of the concrete batching plant;
• the proposal is consistent with the aims and objects of the Act which seek to ensure orderly and economic development of land;
• the impacts of the concrete batching plant are such that the amenity of residents of the proposed lots would be adversely affected;
• the development is consistent with the council's planning controls;

The planning controls 11The site is zoned Residential 2(a) pursuant to the provisions of Cessnock Local Environmental Plan 1989 (the LEP). Subdivision of land requires consent in the 2(a) zone. The LEP includes provisions for exempt and complying development that reference Development Control Plan No. 43 (DCP43). DCP43 was repealed on the making of Cessnock Development Control Plan 2006 (DCP2006) to reflect the amendments to the Act made on 30 September 2005 which provide for only one development control plan applying to any land. Accordingly, the exempt and complying provisions are now contained in DCP2006. Dwelling houses would be complying development on the site subject to meeting the requirements detailed in DCP2006. To be complying development, one criterion is that n o condition of development consent or building approval affecting a site is contravened or compromised. There is no requirement for north facing living areas however dwellings are required to obtain a BASIX certificate. 12Clause 43 of the LEP relates to the suspension of certain laws and subclauses (1) and (2) are relevant and state: (1) For the purposes of enabling development to be carried out in accordance with this plan (as in force at the time development is carried out) or in accordance with a consent granted under the Act, or in relation to development within any zone (other than Zone No 2 (a)), the operation of any covenant, agreement or instrument imposing restrictions as to the erection or use of buildings for certain purposes or as to the use of land for certain purposes, to the extent necessary to serve that purpose, shall not apply to any such development. (2) Nothing in subclause (1) shall affect the rights or interests of any statutory authority under any registered instrument. 13State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) also applies to the site and allows the construction of dwelling houses. Under SEPP2008 there is no requirement for the Principal Certifier to have regard to any covenants that apply to the land or any prior development consents prior to issuing a Complying Development Certificate for a dwelling house. 14Part C, Chapter 4 of DCP2006 addresses land use conflict and buffer zones. Relevant clauses are: 4.1.1 Application This chapter applies to all new development within the area to which this DCP applies. The over-riding principle of this chapter is that the incoming or encroaching development must provide the buffer or other approved means of reducing or removing the conflict. The chapter is not intended for situations where conflict already exists. These situations must be dealt with as best as possible using existing legislation, and where appropriate, mediation and negotiation. 4.1.2 Purpose To provide consistent development guidelines for residents, developers, the Council and assessment staff when considering applications for development which: · may conflict with existing developments or environmentally sensitive areas because of emission of an odour, noise, vibration, visual impact or other nuisance and may therefore require a separation or other means of reducing the conflict to an acceptable level; · is proposed in a location where there is an existing development which adversely affect it and may therefore need to provide its own separation or other means of reducing or removing the conflict in order to minimise land use conflicts between potentially incompatible land uses... 4.2.2 Three Category Classification: A three category land use classification is used to assist in determining whether or not a conflict/buffer investigation should be undertaken, and to what extent. This is based on research undertaken by the South Australian Environment Protection Authority and is adopted in this chapter in order to achieve as much consistency with other regulatory authorities as possible. The categories are: Category A Sensitive Land Uses: Land uses which warrant protection from amenity reducing off-site effects from other land uses. These include all dwellings, caravan parks, community centres, hospitals, hotels, motels, restaurants, schools, tourist facilities, nursing homes or other place of permanent or temporary occupation. New Category A Land Uses may require their own buffer to protect them from existing Category B or C uses, and land zoned for those purposes. However, little or no buffer will be required between different Category A uses, so a residential development next to an existing residential development is unlikely to require any conflict/buffer investigation.... 4.3.13 Residential Development - Category A Potential Conflicts Conflicts are likely at zone boundaries, where residential meets industrial or commercial, or where new residential estates occur at the rural edge of towns and villages. Potential conflicts include adverse impacts from agricultural and rural industries such as noise, dust, odour and spray drift, and from industrial uses by way of noise, vibration, air pollution and surface and ground water contamination. Impacts from residential development include visual impact, noise, light spillage and nutrient enrichment from stormwater runoff (see Section 4.3.15 - Rivers, Watercourses and Wetlands), changes in runoff volumes, erosion and sedimentation, littering and rubbish disposal, companion animals and access roads/intersections. Existing Policies or Guidelines There are numerous documents relating to design and location of residential areas, such as AMCORD. Little relates specifically to need for buffer zones. DNR recommends that no further subdivision of stream or river frontages be permitted. Performance Standards for Reducing Conflicts Residential development must comply with the minimum setbacks recommended in this document for other land uses whenever residential is encroaching on them. If development is proposed within the separation distances recommended, a range of technical information will be required in relation to noise, air quality, drainage, erosion and sedimentation control and the like. The specific reports required will depend upon the nature of the proposal and its surroundings.

The evidence 15The hearing commenced on site with evidence heard from a number of residents. The majority of matters raised related to the operation of the concrete batching plant and the problems that were experienced with regard to noise, trucks and dust. One resident objected to the proposed subdivision on the basis of the additional traffic it would generate. 16At the time of the inspection, the plant was closed and evidence provided by the residents is that the site had not been utilised since some time in April, around Easter. 17An inspection of a site that was said to be the new location for the concrete batching plant was also undertaken. That site is on the Maitland-Wollombi Road and it was observed from the roadway. It is apparent that the building works required for the property to be used as a batching plant have been completed. The parties agree that the plant has not been commissioned and that the necessary arrangements for access to the property from the road have not been agreed between the proposed operator and the RTA. A letter dated 10 February 2011 from Hanson Construction Materials Pty Ltd to the council was tendered as Exhibit L and details the difficulties the company has experienced in obtaining statutory approval from the RTA so as to accord with the requirements of Energy Australia and Hunter Water. The letter indicates the company's intention to relocate to the new site and its desire to be in a position to call for tenders for the roadworks in June 2011. No further information in relation to the matter was provided by either party.

Acoustics 18Expert evidence was provided by Mr Welbourne for the applicant and Mr Atkins for the council. They do not agree on the appropriate criteria to be applied to assess the impacts of the batching plant on the site. Mr Atkins says that the intrusive noise criteria should be applied and that the modelling undertaken by Mr Welbourne addresses amenity criteria. 19Mr Welbourne acknowledged that the intrusiveness criterion is usually less than the amenity criterion and is routinely adopted for Greenfield sites with no existing industrial sources however, he decided to adopt the amenity criterion because the batching plant was to be relocated and therefore no noise issue would exist after that time. He says that on relocation any controls specified in relation to batching plant noise would be no longer required and so onerous controls to meet an intrusiveness criterion were not considered justifiable; that the amenity criterion adopted is no greater than allowable by the Department of Environment, Climate Change and Water (DECCW) and could be met and finally, he considers the activities during the day period are less likely to cause community annoyance. He conceded that had he been aware the plant was to stay then he would have selected the intrusive criterion and says that, applying those standards, the acceptable noise levels would not be met at the site. 20Mr Atkins says that the intrusive noise criteria should apply, as it is best practice for assessing environmental noise to control intrusive noise from industrial sources and protect noise amenity. He is critical of the modelling undertaken by Mr Welbourne in that it did not take into account all of the activities conducted on the batching plant site and his monitoring point was not on the site. Mr Atkins undertook a site audit of the plant on 23 March 2011 and at the time of taking measurements there were no batching activities being undertaken however, a front-end loader was operating within the building and open yard area and one truck and trailer arrived and departed the depot. He confirmed that noise from the onsite activities was clearly audible and exceeded the Intrusive noise criteria at the boundary of proposed Lots 451/2 by up to 16dBA. At the boundary of Lots 452/3 the plant noise was clearly audible and exceeded the criteria by 13dBA. He concludes that the noise reductions from the proposed acoustic boundary fences are insufficient to address the intrusive noise criteria during day, evening and nighttime hours. 21Mr Welbourne concedes that his modelling did not take into account noise measurements at source and that the worst-case scenario developed does not reflect noise of equipment, estimating that this would add a further 2-3dBA to his conclusions. He chose the monitoring site as he considered that it would best reflect the exposure of residents to the truck slumping which, he says, is the worst noise source however agreed that the monitoring could have been undertaken on the site. Mr Atkins says that it was essential that it was and therefore was concerned the modelling did not indicate the true effects of the impacts of the plant.

Dust 22Expert evidence in relation to air quality, and specifically in regard to dust was presented by Mr Bodas for the applicant and Mr Todoroski for the council. The experts agree that the current design of the batching plant, with its open yard and storage areas make the control of dust from the site difficult. 23Mr Todoroski carried out an inventory of dust emissions based on his site observations and the available information about the plant. That inventory was applied in an air dispersion model to predict the likely levels of dust impact being generated by the operation of the plant applying the Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales (Department of Environment and Conservation 2005). Such method considers the background dust levels as well as dust from the plant. Mr Todoroski's expert report, Exhibit 2, provided extensive details, calculations and analysis of dust impacts utilising available meteorological data, background dust levels, vehicle emission estimates and operation of the plant based on 24 hour averages. His modelling, based on a 10 day period, concludes that there would be impacts at all of the proposed lots at the site and that, depending on the background levels, that impact would exceed the relevant criterion of 50 g/m 3 . 24Mr Bodas reported on fieldwork conducted by his company. That involved a single dust measurement regime. The methodology used was a DustTrack, model 8520, to monitor dust on an approximately 30 minute interval basis, over a 12 hour period and was undertaken between 8am and 8pm on March 31 2011, being after 9.6mm of rain was recorded at Cessnock Airport. Mr Bodas acknowledges that this event would have contributed to the low background dust levels recorded and the report concludes that he has insufficient information to categorically assert the impact or trend of dust levels at the site and whether they are above or below any criteria adopted and recommended further monitoring.

Planning 25Expert town planning evidence was heard from Mr Vescio for the council and Ms Colclough for the applicant. 26Ms Colclough notes that the consent was granted by the council for the original subdivision in 2004 and that Stage 1 works were completed in 2006. It is her opinion that it is unreasonable to withhold stage 2 works and to do so does not promote the coordination of the orderly and economic use of the land, an object of the Act. It is her opinion that the holding costs for the land are a consideration and it is appropriate to allow its development in accordance with the residential zoning. To not allow further subdivision would, in her opinion be uneconomical for the landholder. 27Mr Vescio says that it was a decision of the applicant to provide all of the necessary infrastructure to stage 2 upfront and that the financial circumstances of the applicant are not a matter to be considered pursuant to the provisions of s79C of the Act, noting that 41 of the 51 lots have been released. He says that by granting the original consent and allowing the majority of the land to be subdivided, council has allowed the orderly and economic use of the land and until such time as the concrete plant relocates, the remainder of the land is not suited for residential use. He also says that it would appear to have been a fundamental condition to the granting of consent, and that absent it, the council would more than likely have refused the original application. He sees the delay in the release of stage 2 lots as a non-severable and integral consideration and component of the consent. 28Ms Colclough says that the operations of the concrete plant should be controlled in accordance with the provisions of the Protection of the Environment Operations Act 1979 (POEO) and that the council can issue a prevention notice under part 4.3 of that act requiring action to address the noise and dust issues. Mr Vescio notes that the council has issued a prevention order to the operators of the plant and that certain works have been undertaken in accordance with that order. Despite this fact the air quality and noise impacts remain above acceptable levels. 29Mr Vescio says that it is unreasonable to require the operator of the plant to modify its operations to allow a new land use. He refers to "reverse sensitivity" which he describes as the legal vulnerability of an established activity to complaints from a new landuse. He cites the decision of Talbot J and Murrell C in Cooper v Wollondilly Shire Council [2004] NSWLEC 145 where, at paras 18- the matter is considered as follows: 18 It is not appropriate as a matter of principle to foreshadow the imposition of controls on the approved activities at the colliery in order to accommodate the amenity of the users of the caravan park. The mine has been approved and established without contemplating what is effectively a residential use of the subject land. There are many instances of residential type development encroaching into the environs of existing industrial uses with detrimental consequences to the operator of the industrial use. Typical of this consequence is the circumstance of Illawarra Coke Co Pty Ltd as demonstrated by the outcome of criminal proceedings taken against it by the EPA pursuant to the PEO Act reported in 2002 (118 LEGERA 451) where the conflict of land use had arisen by residential development spreading into the pre-existing industrial environment occupied by the company. Other examples abound in the rural urban interface on the outskirts of Sydney, particularly in respect of mushroom growing and poultry producer uses (see Ingham Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA 68). The decision of the Court of Appeal in Kira demonstrates that it is not the province of the consent authority nor is it appropriate to seek to have an existing user ameliorate the impacts of pre-existing development rather those impacts should be addressed by imposition of conditions or constraints on the proposed development or refusal of consent. 19 The approval of the caravan park will have the effect of introducing an inherently conflicting residential land use which almost inevitably will lead to confrontation, complaint and possible attempts to constrain the use of the colliery site beyond the controls imposed by existing approved conditions. 20 For that reason alone the development application must be determined by refusal of consent. The permissible uses in the zone are not limited to residential type development and it is not therefore a situation where the refusal of the development application will necessarily have the effect of sterilising the future use of the land. 30I note Mr Williams' submission for the applicant that the colliery was operating under the terms of a development consent whereas the concrete batching plant operates as an existing use with, from the evidence provided, no consent conditions attached which regulate external impacts. The plant has however been licensed by the EPA and conditions to control impacts imposed through that licence. I consider this aspect later in this judgment. 31Mr Vescio refers to the specific provisions of DCP2006 which require a buffer area to be provided on the site and says that this should be 200 m, coupled with a 1.5 m high landscaped mound and therefore it is not appropriate to allow the proposal. Ms Colclough says that to provide such a buffer would sterilise the land and not meet the objectives of the council's housing strategy. She considers that the provisions only apply where there are different zonings and are not applicable to the case and that to provide a buffer would be a waste of land; a more appropriate option would be to mitigate the impacts. 32Mr Vescio does not support the proposed s88E instrument being used to address the mitigation of dust and noise impacts as he says that it would have no effect if complying development was approved under SEPP2006 and that the orientation of the dwellings as proposed would not address dust impacts. Ms Colclough says the conditions are appropriate.

Conclusions and findings 33It is apparent that the relocation of the batching plant has taken longer than the council and the applicant would have anticipated however, I do not accept that this delay is a reason to vary the consent condition delaying the release of the 10 lots until the concrete batching plant has relocated. 34It is clear from the evidence of Mr Todoroski and Mr Atkins that the dust and noise impacts from the plant cannot be mitigated in the manner proposed by the applicant to comply with the relevant standard for air quality and intrusive noise. I do not accept that the proposed consent conditions and s88E instrument are appropriate to address these impacts. 35I prefer the evidence of Mr Atkins in relation to the appropriate noise criteria that should apply and that was agreed by Mr Welbourne on the basis of the plant remaining. 36Mr Todoroski has shown that the dust impacts of the plant will adversely affect the amenity of residents on occasions and that this may be as frequent as once per week. I prefer his evidence, particularly due to the fact that Mr Bodas did not calibrate the equipment used and undertook minimal analysis of the air quality. 37Mr Williams for the applicant relies on the authority established in Bailey v Oberon Shire Council [2006] NSWLEC 815 where at paras 50-51 Moore C states: 50. The noise presently generated which gives rise to present complaints I noise which is in breach of operating licences of the EPA. 51. I am of the view that it would be entirely improper for a member of this Court to rely on an unlawful activity to sustain an objection and use such objection to warrant or contribute to the refusal of an otherwise lawful application. 38I have no evidence that the operation of the concrete batching plant is unlawful. The planning experts agree that the plant operates under existing use rights and, from the information included in Exhibit 1, it would appear that the operator has complied with the terms of the council's prevention notice. 39DCP2006 contains specific provisions, which address the conflicts in landuses, and I consider that in the circumstances of the case, it is appropriate to retain the condition of consent in the form imposed by the council to prevent release of the lots until such time as the plant relocates or permanently ceases to operate. The emphasis to be given to a development control plan (DCP) is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative (my emphasis). 40It is clear that the intent of DCP2006 is to ensure appropriate separation between incompatible uses and should be given significant weight. The buffer area will only be required until such time as the concrete batching plant ceases to operate. It would appear that, despite events of the past, that this might now be imminent. Until such time as the operation of the plant ceases, the condition of consent should remain.

Orders 41The Orders of the Court are: (1)The appeal is dismissed. (2)The application to modify Development Consent 8/2003/1737 is refused; (3)The exhibits, other than exhibit F and 6 are returned. Sue Morris Commissioner of the Court ANNEXURE 1 Plan of subdivision including location of concrete batching plant 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. Decision last updated: 31 May 2011