Hunter Wine Services Pty Ltd (formerly John F Berthon & Associates Pty Ltd) v Muswellbrook Shire Council

APPLICANT Mr Clay, barrister Instructed by Michael P Hallett, solicitor LEGAL REPRESENTATIVES:

RESPONDENT Mr Staunton, barrister Instructed by Sparke Helmore Lawyers

•     THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES
  

10040 of 2008 Hunter Wine Services Pty Ltd (formerly John F Berthon & Associates Pty Ltd) v Muswellbrook Shire Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal of an application under s.96 of the Environmental Planning and Assessment Act 1979 to amend Development Consent DA 239/2002 for Expansion of the existing Wine making Facilities at the former Oak Dairy factory, Muswellbrook.

2 At the commencement of the Hearing the applicant advised of the untimely death of the applicant Mr Berthon, and made an oral Notice of Motion to change the applicant's name to Hunter Wine Services Pty Ltd. The respondent did not oppose the motion and it was granted. The site and existing buildings and surroundings 3 The plant is on a large site at the northern end of the town. Travelling north at the edge of town on the New England Highway, one drives up and over a high level rail crossing, then down the other side onto the river flat. The railway is on the uphill side of the road and just above it again is the Old Oak Factory buildings. The main buildings are in the Art Deco style and today have numerous wine holding and processing tanks around them.

4 The site is accessed by turning off the highway at the crest of the rail overbridge into Manning Street and then into Hunter Street. The site is irregular shaped. It is elongated and roughly about 600m by 200m. The long boundaries are to the railway on the west, and on the east to the rear boundaries of about 24 houses that front Cousins St. The south boundary is to Hunter and Humphries Streets. The north boundary abuts undeveloped Residential 2(a) and open space land.

5 The site itself is zoned Industrial 4(b) in a strip parallel to the railway about 70m wide that includes the factory, the tanks and the access driveway, plus some out-buildings and plant at the north end. The rest of the site is a wider strip parallel to Cousins St that contains 4 company cottages and is zoned Residential 2(c) for 2-storey apartments (or as the applicant points out 3-storey subject to council approval).

6 On the railway side of the Old Oak Factory, the tanks are horizontal and laid end-on and very close to the railway boundary. The vacant land between the rail and highway corridors, is a dedicated Vietnam Veteran Memorial Garden, and is planted with trees and landscaped. The Old Oak Factory and the horizontal tanks are quite obvious above the memorial when travelling on the highway.

7 On the uphill or east side of the factory are about 30 or so vertical tanks, the largest being over 20m high including the access walkway on top. Each tank has a walkway for access to a hatch on top. The ground level uphill of the tanks is excavated to be about the same as the main floor of the factory to create a broad driveway for B-double sized road tankers and parking for staff. Currently the staff parking area is used to store building materials and unused equipment.

8 Above this driveway area is an earth embankment or bund that has grass and some shrubs on it. The embankment is to provide some visual and acoustic screening to the on-site staff housing further uphill and other private houses that back onto the factory property along its eastern boundary. The private houses front Cousins St that runs parallel to the site's eastern boundary. Current stage of development 9 On the railway side or the west side of the buildings, the current consent DA 239/2002 requires painting of the horizontal tanks and planting of a row of trees along the railway boundary to screen them. This has not been done.

10 The current consent DA239/2002 requires, on the east or uphill side of the buildings and tanks, that the bund have an acoustic wall along the top and trees grown on it. This has not yet been done. 11 The consent also requires a row of trees between 2 and 3 trees deep be planted along the entire boundary adjoining the rear of the Cousins Street houses. This has not yet been done.

12 The current consent DA 239/2002 requires, in the respondent's issues, the tops of the tanks and their walkways to be no more than 2m above the parapet of the old factory tower, and may include tanks 20m tall so long as they comply with the 2m above the parapet. This would necessitate 20 metres tanks being excavated into the ground. Some tanks have been erected up to 4m higher (approx.) to the top of the walkway handrail. Tank 11 offends by about 4m, Tanks 17 & 18 by about 2.5m and Tank 10 by about 2.1m, says the respondent. 13 The applicant says that the condition on height is ambiguous and nominates tanks can be 20m high and/or up to 2m above the highest point of the tower that is the stair roof. If the 2m limit applies in preference to the 20m tank size, the applicant says Tank 11 exceeds the height condition by only 2.4m (approx.) to the top of the handrail, Tanks 17 & 18 are only about 0.9m higher and Tank 10 is only about 0.5m higher. The rest comply, says the applicant. The Contentions 14 The applicant had sought to clarify the above dispute by a s96 modification application that would change existing condition 1.4 to allow ALL tanks to be the same height as Tank 11, which is the highest tank including its walkway. Also the applicant sought to avoid painting the horizontal tanks by changing condition 1.5 to allow a blue metal colorbond fence 1.8m high inside the existing chainwire boundary fence. 15 A summary of the contentions, before the parties reached Consent Orders were: 1 Some of the vertical tanks are too high. 2 Those vertical tanks block valley and distant mountain views from houses adjoining the site. The tanks including their walkways should be lowered to be no more than 2m above the main parapet of the Old Oak Factory tower. All future vertical tanks should comply with the same condition, and be staggered in height and painted to reduce their visual impact. 3. The horizontal tanks should be painted also and the trees planted. The colorbond fence is unacceptable as it would be subject to graffiti and vandalism, and would be highly visible from the highway and difficult to maintain into the log term future. It would also present a stronger visual impression than the tanks given the texture of light and shade between the tanks and the softening with appropriate colors and screen trees. The Evidence 16 During the Hearing the parties reached Consent Orders as annotated on Exhibit 7.

17 The on-site hearing was attended by: For the respondent: o Mr M Staunton barrister, o Ms N Simmons solicitor, o Mr G Warnes consultant town planner, o Mr C Gidney town planner for the council, o Mr M Pringle and Ms J Danson of the council, o Mr T & Mrs S Kennedy objectors 22 Cousins St, o Mr P Chapman objector 20 Cousins St, o Mr M & Mrs A Williams objectors 24 Cousins St. For the applicant: o Mr P Clay barrister, o Mr R daQuino of Hunter Wine Services Pty Ltd, o Ms S Flannery consultant town planner, o Mr A Hordern of Hunter Wine Services Pty Ltd. 18 A summary of the evidence is that the objectors had been consulted by council before the grant of the original consent in 2003 and a subsequent amendment. They were aware of a colour scheme for the existing tanks and that the previous modification had moved 6 large tanks proposed at the south end of the building to be included in the group of tanks at the north end. This at least meant the presence of the large tanks visible from their homes was reduced to one group only.

19 They contended that the councillors in visiting their homes had set the maximum height of tanks at 2m above the parapet of the old factory tower, not the stair roof, because that kept the tops of the tanks below the horizon of the mountains on the west side of the valley. The four existing offending tanks projected above or up to the horizon and were ugly in their opinion. The fact of their projection up to and above the horizon could be seen from their houses.

20 Some of the objectors said that the existing tanks may remain so long as the colour scheme was implemented and any future tanks are kept low. Other objectors said the offending tanks should be lowered.

21 An important matter that none of the objectors appeared to know is that the existing consent requires the planting of the continuous row of trees along their rear boundaries. It had the potential to block out their views, although Mr Warnes thought that being only 3 trees deep, some views would remain amongst the foliage and tree trunks. 22 Another condition they appeared not to know, is that the embankment or bund that is about 150m long and directly behind some of the objectors houses, is also required to have the acoustic wall and more trees planted.

In time, with normal growth, these two conditions would screen out much of any view of the tanks and the factory and the valley and mountains from the objectors' houses. They said the views were one of the main reasons for buying where they did. They wanted to retain the existing views at least. 23 Another fact they did not appear to know is that the strip of applicants' land along their rear boundaries is zoned for residential flats. Depending on how close any flats might be built to the common boundary, and whether 2- or 3-storey, the same views could be reduced to glimpses between trees and buildings.

24 The council had issued a construction certificate for the tanks with drawings that showed the tanks as built, but with a condition requiring compliance with the development consent. Thus the evidence could have revolved around a strict interpretation of the relevant conditions.

25 During the hearing and concurrent evidences of Mr Warnes, Ms Flannery and Mr Gidney there emerged alternatives that would clarify the alleged ambiguity of the conditions, enable the existing tanks to remain and any future tanks to be much lower than the horizon as seen from the objectors' houses, and an appropriate colour scheme to reduce the visual impact of the existing and future tanks.

26 The alternatives included the retention of existing views from the objectors' houses by converting the as yet unplanted trees to be shrubs.

27 The Muswellbrook Local Environmental Plan 1985 applies and the respondent agreed the objectives of the zone are complied with, and under the statute and Development Control Plan No.2 - Industrial Development Land Use there is no height limit in the industrial zone and no other control arises. It was put that the s79C considerations of the Environmental Planning & Assessment Act 1979 are the applicable assessment provisions as well as the s96 modification application matters.

28 There is a draft local environmental plan on exhibition for the shire, but the respondent agreed it is neither imminent nor certain and should be given no weight in this appeal.

29 Having considered the evidence and submissions, I have formed the opinion that the consent orders sought involve minimal environmental impact, and the development would remain substantially the same as originally approved and that the submissions received have been given appropriate consideration. There being no other obstacle or consideration that would justify refusal, I conclude that the Consent orders should be granted.

30 Therefore the Orders of the Court by consent of the parties are: 1. The appeal is upheld. 2. The Consent Orders sought by the parties to amend development consent DA 239/2002 for wine making facilities at the former Old Oak Factory, 1 Hunter Street, Muswellbrook are granted as set out in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 2, 4, 7 and C.

      K G Hoffman
      Commissioner of the Court
      ljr

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