Megaplay Properties Pty Ltd v Cessnock City Council

Land and Environment Court (NSW)|2021-10-07|Before: Olivieri P, Category P

Judgment

COMMISSIONER: Wine Country Drive is a state road linking the Hunter Expressway with the Hunter Valley Vineyards District, Cessnock town centre and residential areas in Nulkaba and Rothbury. A BP service station is located at 247 Wine Country Drive, Nulkaba, together with a food and drink services, both of which have been in operation since June 2021. There is also an additional food and drink premises with drive through facilities on the site, but this component is currently vacant and is not operational. By a development consent granted on 19 October 2016 (the existing consent), the service station is permitted to operate between the hours of 5am and 11pm, and the food and drink premises can operate between 6am and 11pm. The present appeal concerns a development application to extend the trading hours for all premises to 24-hour trading. The development application was refused by Cessnock City Council (the Council) on 21 April 2021. Megaplay Properties Pty Ltd (Megaplay) appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Council is opposed to the grant of development consent, and contends that the extended trading hours will cause an unacceptable acoustic impact on the future residential dwellings to the south of the site, where a residential subdivision known as Valley View Estate was approved by the Council by development consent granted on 3 May 2017. The Council also contends that the 24-hour operation of the site will be out of character in the locality, and will therefore be inconsistent with the objectives for development in the relevant zone.

The site, history and locality

The total area of the site is approximately 3.693 ha, and is an irregular shape extending almost 900m to the west of Wine Country Drive. The site is narrow in width, with a width that ranges between 20 and 40m. The portion of the site on which the premises operates is at the front of the site, and is generally rectangular in shape with a frontage of 80m to Wine Country Drive. An aerial photograph of the site is at Figure 1.
The portion of the site on which the premises operates has a slope that occurs from west to south-east. An acoustic fence of 2.4m height runs the full length of the southern side boundary of the premises, and a retaining wall runs parallel to the fence such that the fence has an effective height of up to 3.6m from the ground at its highest point.
Much of the premises is hard surface, with some landscaping around the perimeter, in the verges between car parking spaces, and within areas formed between traffic control curbing. There are two sheltered areas where petrol bowsers are located, and a building containing the service station service facilities, two food and drink premises and café seating. The second food and drink premises, which is located on the eastern portion of the building, contains fast food drive through window services. A drone photograph of the site, taken from the south, is at Figure 2.
The site is accessed by road from Wine Country Drive, with a dedicated left-hand turn lane for entry from the south and a right-hand turn lane for entry from the north (for traffic moving south). There is also an acceleration lane for those departing the site with a left turn and travelling north. There is a dip and hump at the vehicle entry, where a dip is located at the junction of the road surface and the concrete surface of the site, and a hump is located on the site.
The site slopes gradually down from west to the south east, such that vehicles entering the site drive uphill toward the service station area, and vehicles leaving the site travel downhill. A streetview image of the site entrance is shown at Figure 3.
The existing consent was granted on 19 October 2016 and allowed the construction and use of the service station, food and drink premises, signage and associated carparking and landscaping. The development application initially proposed a 24-hour operation, however, this was amended in the course of the Council's consideration and, on determination of the application the Council resolved to include a condition that restricted trading hours in condition 58 as follows: "58. Operation of Premises (a) The service station shall operate between the hours of 5:00am until 11:00pm, seven days per week. (b) The food and drink premises shall operate between the hours of 6:00am and 11:00pm, seven days per week."
The site is located within the locality of Nulkaba about 6.1 km to the north-west of the town centre of Cessnock. There is a variety of development in the surrounding area, with large lot residential lots and rural residential lots to the south, primary production small lots to the west and north, and rural land to the east. There is an educational establishment to the northeast of the site, tourist accommodation located further south of the site, and Cessnock Airport is located to the north-west.
The Valley View Estate to the immediate south of the site is identified as an Urban Release Area under the Cessnock Local Environmental Plan 2011 (CLEP), and is also known as the 'Valley View Place Urban Release Area'. This area is also identified in the Hunter Regional Plan 2036 as an area of "Future housing and urban renewal opportunities". The development consent for the subdivision of the land known as Valley View Estate allows the subdivision of the land into 81 residential lots and the creation of an access and circulation road. The road is partially constructed and includes streetlights along its constructed portion, and construction of dwellings on a number of the subdivided lots has commenced. The consent includes 5 residential lots (lots 25 to 29) immediately adjoining and sharing a common boundary with the subject site. Those lots remain vacant at present.

The planning context

The site is zoned RU2 Rural Landscape under the CLEP. It is located at the junction of three other zones, the RU5 Village bordering the site on its south east, R5 Large Lot Residential bordering the site on its south west, and RU4 Primary Production Small Lots bordering the site on its the north. This is shown in Figure 4.
Restaurants or cafes are a nominated permissible use in the RU2 zone, and service stations are an innominate permissible use. Clause 2.3(2) of the CLEP 2013 requires the Court, in exercising the functions of the consent authority, to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To enable other forms of development that are associated with rural activity and require an isolated location or support tourism and recreation. • To ensure that the type and intensity of development is appropriate in relation to the rural capability and suitability of the land, the preservation of the agricultural, mineral and extractive production potential of the land, the rural environment (including scenic resources) and the costs of providing services and amenities. • To maintain and enhance the scenic character of the land. • To ensure that development does not create unreasonable or uneconomic demands for the provision or extension of services. • To minimise the visual impact of vegetation clearing in order to be consistent with the rural character of the locality. • To minimise disturbance to the landscape from development through clearing, earthworks, access roads and construction of buildings. • To ensure development does not intrude into the skyline when viewed from a road or other public place.
Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to land that has frontage to a classified road, and precludes development consent from being granted unless the consent authority is satisfied of the matters in cl 101(2). I note, in accordance with cl 101(2), and based on the Traffic Impact Statement dated 1 October 2020, I am satisfied that the development cannot practicably have access from another road, and that the proposed extension of trading hours will not adversely affect the safety, efficiency and ongoing operation of Wine Country Drive. Further, consistent with cl 101(2)(c), the development is of a type that is not sensitive to traffic noise or vehicle emissions.
Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. As there are no works proposed on the site by the current proposal, and the assessment of the development application for the grant of the existing consent identified that there is no contamination risk, there is no issue concerning contamination of land.
The Cessnock Development Control Plan 2010 (CDCP) also applies to the site. Chapter C4 concerns Land use conflict and buffer zones, and Chapter C8 concerns Social Impact Assessment and Crime Prevention through environmental design.

Resident objector evidence

The development application was exhibited between 1 and 15 December 2020. Seven submissions were received in response. In addition, a number of residents gave evidence at the commencement of the hearing. The issues raised by the residents, both in the written submissions and in evidence, can be summarised as follows:

Acoustic impacts, particularly increased noise from vehicles on Wine Country Drive, vehicles accelerating and decelerating to enter and exit the site, and vehicles stopping during the night and unhitching.
Social impacts that could be caused by gatherings on the site, which could also cause disturbance of local residents.
Impacts from the lighting of the sign and awning structures.

The acoustic impacts are considered in detail below. The experts in town planning agree that the lighting impacts can be dealt with by way of a condition of consent, which ensures that any outdoor lighting (including existing lighting) will comply with the two relevant Australian Standards: AS 1158.3:2005 Lighting for roads and public spaces - Pedestrian Area (Category P) Lighting - Performance and design requirements; and AS 4282:1997 Control of the obtrusive effects of outdoor lighting.
The developer of Valley View Estate also expressed concerns about the operator of the site not removing the truck stop facilities, contrary to the conditions of the existing consent. I note that I cannot take into account the past non-compliance with conditions of consent in determining the present development application (see Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35]).

Expert evidence

Evidence on the acoustic impacts of the proposed extension of hours was given by Mr Rod Linnett, an acoustic consultant engaged by Megaplay, and Mr Ray Tumney, an acoustic consultant engaged by the Council. Although their evidence was given in two joint reports, very little was agreed between them and the content of the joint reports was akin to single expert reports combined into a single document. Their evidence is considered below.
Evidence on the planning issues was given by Mr Patrick Quinlan, a town planner engaged by Megaplay, and Mr Stuart McDonald, a town planner engaged by the Council. Their evidence was given in a joint report, and is considered below.

Acoustic impact

The Council contends that the noise assessment carried out to assess the impact of the extended trading hours is inadequate and inaccurate, and that the Court could not be satisfied that the proposed extension in trading hours would not adversely impact on the amenity of the surrounding locality. It submits that the Court should accept the evidence of Mr Tumney on the measurements of noise events and on the appropriate sleep disturbance criteria. Further, it submits that there ought to have been an assessment of the noise impact of gatherings of patrons, which it says is envisaged to occur after large events held on various vineyards and other sites within the Hunter Valley region.

A summary of the experts' positions

Mr Linnett and Mr Tumney agree that the appropriate guideline documents to consider acoustic impacts are the Noise Policy for Industry (NPI) and the Road Noise Policy (RNP). They also agree that, based on noise monitoring of the rating background level from August 2020 of a location 55m from Wine Country Drive, the project noise trigger levels for the representative receiver locations (at Lots 25 and 27 of Valley View Estate) are as follows:

Project Noise Trigger Level (PNTL) night-time of 40dB LAeq (15min); and
Maximum Noise Trigger Level (MNTL) 52dB LAmax.

Mr Tumney's position is that the current operation of the site does not comply with the PNTL or the MNTL, and that, without any noise mitigation measures proposed, the operation of the site during the extended operating hours will be similarly non-compliant and therefore cause disturbance. Mr Tumney reaches this position by his own attended measurements taken during the day.
Whilst Mr Linnett acknowledges that some instantaneous noises from the current operation exceed the upper limit (LAmax) MNTL, this occurs only in 3% of all noise events and the current operation nevertheless complies with the PNTL time-based criterion over 15 minutes (LAeq (15min)). Mr Linnett reaches this position as a result of attended measurements taken during the night-time acoustic period (but within current operating hours), 5am-7am and 10pm-11pm.
In assessing whether the extended trading hour period is acceptable, Mr Linnett and Mr Tumney disagree on what criteria should be applied to determine whether the extended trading hours will cause sleep disturbance. Although they have quantified the criteria applicable to their position, neither of the parties in the proceedings have proposed the imposition of a condition reflecting the respective position of their expert on the sleep disturbance criteria. Instead, the conditions require compliance with the Noise Assessment dated 5 November 2020, which applies the PNTL and the MNTL to determine the acceptability of the acoustic impact.
As such, regardless of what I determine the sleep disturbance criteria to be, any extension of trading hours will be expected to comply with the PNTL and the MNTL, as set out in the Noise Assessment. Compliance with the MNTL will result in compliance with both the sleep disturbance criteria as calculated by Mr Tumney and that which was calculated by Mr Linnett.

The proposed Noise Management Plan

The Noise Assessment proposes a Noise Management Plan be prepared to "minimise noise emissions and to respond to potential concerns from the community regarding project noise emissions". The parties have developed this further through a proposed condition of consent for the preparation of a Noise Management Plan for the ongoing management of noise, including the provision of noise mitigation measures and ongoing noise monitoring.
One such noise mitigation measure that Megaplay has put in place is the construction of an additional noise barrier, 1.5m high, along the entrance to the heavy vehicle diesel canopy to further reduce engine noise emissions from truck engine noise. The barrier does not form part of the present development application, and there is a dispute between the parties as to whether its construction is lawful.

The parties' positions on the acoustic impact of extended trading hours

Megaplay's position is that, consistent with the requirements of the RNP (and quite apart from the PNTL and the MNTL), the appropriate noise criteria to assess the acceptability of noise emissions for the extended trading hours are:

No more than 65dB LAmax external between 11pm and 5am; and
No more than 75dB LAmax external 2 times a night.

These calculations are based on a 10dB reduction from outside to inside for a partially open window, and the following paragraph of the RNP concerning sleep disturbance (at Section 5.4): "From the research on sleep disturbance to date it can be concluded that: • maximum internal noise levels below 50-55 dB(A) are unlikely to awaken people from sleep • one or two noise events per night, with maximum internal noise levels of 65-70 dB(A), are not likely to affect health and wellbeing significantly."
Megaplay relies on the evidence of Mr Linnett, that based on the predicted modelling of what will occur on the site and using the actual noise levels of those events as measured by noise monitoring, the operation of the site in the extended trading hours will comply with this criteria.
Megaplay submits that the modelling is highly conservative, in the following circumstances:

It assumes the existence of future residential receivers without consideration of what acoustic measures might be incorporated at those dwellings.
It assumes that the background noise level would remain unchanged despite the historical trend of increasing traffic noise along Wine Country Drive and the predicted increase as a result of residential development.
It assumes a higher than observed traffic flow in the night-time period.
It assumes a high proportion of concurrent noise events in every 15min period, even though this is unlikely.

However, Mr Tumney disputes the evidence of Mr Linnett with respect to the calculation of the criteria, and the modelling of noise events during the extended trading hours. Mr Tumney's evidence is that the appropriate criteria to assess the acceptability of noise emissions from the site during the night-time period is as follows:

LAmax outside should not exceed 52dB(A) more than 15 times per night.
LAmax outside should not exceed 55dB(A) any time between 11pm and 5am.

Mr Tumney reaches this position as he considers that the RNP statement that "levels below 50-55 dB(A) are unlikely to awaken people from sleep" is an upper boundary level for the assessment of sleep disturbance in noisy environments. Mr Tumney describes Nulkabar as an area "with low background levels" and relies on the data from the World Health Organisation that sleep disturbance occurs above 42dB(A). He accepts that there is a 10dB difference between inside and outside noise levels when a window is open for ventilation, and says that the 52dB(A) outside in the RNP is consistent with sleep disturbance occurring when noise exposure is greater than 42dB(A). Further, he relies on the RNP information that for "good sleep over 8 hours LAmax should not exceed 45dB inside more than 10 to 15 times per night" (at Section 5.4), to arrive at a figure of 55dB(A) for LAmax outside.
In support of Mr Tumney's position that the noise environment of the future residential receivers is one "with low background noise levels", he considers that the noise from Wine Country Drive is shielded by a fence that runs alongside the Valley View Estate, between the subdivided lots and Wine Country Drive. The fence is 2.4m high and 40m in length, but the two residential receivers that are agreed to be greatest affected have a ground level that is between 4.5m and 7m higher than the top of the fence.
Mr Tumney also disputes the measurements of noise events that were carried out by Mr Linnett at the nearest future residential receivers. Based on his own measurements, which were taken from actual events during the daytime and extrapolated for the number of truck movements he considers will occur over the night-time period, Mr Tumney opines that the 52dB(A) MNTL will be exceeded more than 10-15 times per night with 60dB(A) being exceeded 8 times or more. However, his raw data was not provided to Mr Linnett for analysis, and events less than 52dB(A) LAmax were excluded from consideration.
Further, Mr Tumney's evidence is that there is current non-compliance with the PNTL of 40dB LAeq (15min) and the MNTL of 52dB LAmax. As such, he opines that, given there are no additional noise mitigation measures proposed and given the current complaints from residents about the noise generated by the sites, the Court could not be satisfied that the extension of trading hours would not cause a noise disturbance.
Mr Tumney also considers that the noise impact should be assessed based on the capacity of the site, and not on the predicted frequency of use.
In addition, the Council submits that Megaplay has failed in its acoustic impact assessment to consider the noise impact of gatherings of patrons, which it says is envisaged to occur after large events. The evidence that such gatherings may occur can be found in the Social Impact Assessment by Forward Thinking, in which feedback on the extension of the trading hours from a Senior Constable at Cessnock is recorded as follows: "• An area of concern by police would involve the likelihood that patrons leaving nearby licenced premises (present closing times are 12am weeknights and 3:00am on weekends) congregating at the site and arriving in differing states of inebriation. • Once Covid restrictions are relaxed the likelihood of patrons leaving the various music festival venues and attending the site to avail themselves of food and toilet facilities, these music festivals attract crowds anywhere up to 20,000 people… the potential for large numbers of patrons in varying states of intoxication arriving on mass at the site is of concern".

The acoustic impact is acceptable

For the reasons that are set out below, I am satisfied that the acoustic impact of the extended trading hours will be acceptable. I accept that the appropriate acoustic criterion to determine whether there will be sleep disturbance by the extended trading hours is 65dB LAmax external between 11pm and 5am, and I accept the modelling that has been done by Mr Linnett that demonstrates that the operation of the premises will create noise events that do not exceed that criterion. Further, the conditions of consent will operate to require compliance with the MNTL and the PNTL.
Firstly, I accept the sleep disturbance criteria as set out by Mr Linnett. I do not accept Mr Tumney's evidence that the residential receivers are in an area that can be described as one with low background noise. The existing environment is affected by the traffic noise from Wine Country Drive that was recorded as an average ambient night-time noise level of 54dB LAeq (1hr). When adjusted for the distance to the residential receiver at Lot 25, I accept Mr Linnett's calculation that this results in an average ambient night-time noise level of 51dB LAeq (1hr) at the two most affected future residential receivers. This is what the NPI describes as being an "urban residential" acoustic environment that includes an area that "has through-traffic with characteristically heavy and continuous traffic flows during peak periods traffic noise" (see NPI p 13). I accept Mr Linnett's evidence that "a maximum noise event in this environment would need to be at least 15dB higher than the ambient noise level - ie 66dB LAmax" (Ex 5 p 24). Accordingly, I accept Mr Linnett's position that the criteria for sleep disturbance ought to be calculated in accordance with the criteria in the RNP, at 65dB LAmax external between 11pm and 5am, which exposes the future residential receivers to noise consistent with the existing acoustic environment.
There is no basis upon which to make the adjustments applied by Mr Tumney. Those adjustments rely upon the acoustic environment being rural with low background noise, which I do not accept for the reasons already expressed. Further, I do not accept that the fence relied upon by Mr Tumney as shielding acoustic noise has the effect of changing the acoustic environment. Instead, I accept Mr Linnett's analysis of the levels of Wine Country Drive, the fence, and the nearest future residential receivers, and I consider that the fence does little to shield the noise of Wine Country Drive from those receivers. The road noise was readily audible as an urban hum in the observation videos taken on the evening of the attended monitoring on 7 July 2021 (Appendix L to Ex 5).
Secondly, I accept the modelling undertaken by Mr Linnett and that, as a result, the proposed development will comply with those sleep disturbance criteria.
To inform the modelling, measurements of actual events during the operating hours of the premises that are within the night-time acoustic period were taken. Those measurements showed that the current operation complies with the PNTL at receivers in the Valley View Estate, but that occasional noise levels exceed the MNTL of 52dB LAmax, with the highest observed level observed being 58dB LAmax at the future residential receiver. The resulting dataset included 250 observations of maximum noise level events, of which:

97% were less than 52dB LAmax,
99% were below 55dB LAmax, and
Events exceeding 52dB LAmax were attributable to a truck entering the site (53-54dB LAmax) and a modified diesel light vehicle (53-58dB LAmax).

I prefer this evidence of noise event monitoring to that of Mr Tumney's evidence. Whereas the measurements by Mr Tumney were during the day and the full extent of the data measured by Mr Tumney is not before the Court, the evidence of the attended monitoring by Mr Linnett includes a full suite of data and a record of each noise event, both from Wine Country Drive and from the operation of the premises, during the closest time period to the proposed extended hours.
Further, given that Mr Linnett recorded the noise levels of actual noise events and captured a large variety of vehicle types, I do not consider that Mr Tumney's criticism regarding the height of truck exhausts is sufficient to undermine the data obtained in the attended monitoring.
To model the impact of the extension of the trading hours, Mr Linnett then extrapolated the measurement of actual noise events and applied that to the projected use of the site. Mr Linnett and Mr Tumney agree that the customer volumes for the purpose of the modelling is 33 vehicles per hour, comprising 25 light vehicles and 8 heavy vehicles, during the period 11pm to 5am. The assessment quantified noise levels at the nearest future residential receivers combining the simultaneous occurrence of customer car noise (entering, parking, exiting vehicle, closing doors, drive-through and leaving the site), use of petrol bowsers and tyre inflation, truck noise (entering, parking, and leaving site), heavy vehicle fuelling, fuel delivery and mechanical plant. Based on the expected patronage and the noise predictions from all sources, Mr Linnett's modelling anticipates that there is a potential for six noise events to exceed the MNTL of 52dB LAmax, but which would not exceed 65dB LAmax. This would mean that there would be no exceedance of the sleep disturbance criteria of 65dB LAmax external between 11pm and 5am.
Thirdly, the extended trading hours will nevertheless be expected to comply with the PNTL and the MNTL as a result of a condition of consent requiring that the development be carried out in accordance with the Noise Assessment. Where the current operation does not comply with the MNTL, the preparation of a Noise Management Plan, as required by the conditions of consent, will enable mitigation measures to be put in place to reduce the noise generated by the instantaneous noise events that exceed the MNTL.
Further, there is no basis upon which the unmanaged noise that has occurred in the past on the site, which was reported in the evidence of a resident objector, ought to have been measured. This noise was described as being the hitching of a trailer, and occurred outside of the current operating hours of the premises. As such, it was not controlled by the management of the premises and is not associated with its ordinary business. Megaplay agrees that if consent is granted for the extended trading hours, a condition can be imposed that the hitching and unhitching of trailers is not permitted during the extended trading hours.
Finally, I do not accept that the absence of an assessment of the noise impact of large gatherings of patrons, is sufficient to warrant refusal of the development application (although it informs the utility of a trial period, as set out below). The anticipation of such large gatherings is hypothetical, and is not typically associated with the use of a service station and associated food and drink premises. An assessment of every potential hypothetical event, outside the scope of anticipated ordinary use, is not required to be carried out in order to be satisfied that the acoustic impact associated with ordinary use of a premises is acceptable. However, in circumstances where the police have raised this particular hypothetical scenario as a possible occurrence, the absence of an assessment is relevant to whether a trial period ought to be imposed for the extension of trading hours.

Character of the area

The Council contends that the extension of the trading hours should be refused having regard to the objectives of the RU2 zone, and that the extended hours is not compatible with the rural character of the area. It says that the use of the site "will fundamentally change during the additional hours proposed, from one that predominantly caters to passing traffic, to one that will also be a specific late night destination".
In support of this contention, the Council relies on the evidence of Mr McDonald. Mr McDonald opines that the extension of trading hours is contrary to the following objectives of the RU2 zone: … • To provide for a range of compatible land uses, including extensive agriculture. … • To ensure that the type and intensity of development is appropriate in relation to the rural capability and suitability of the land, the preservation of the agricultural, mineral and extractive production potential of the land, the rural environment (including scenic resources) and the costs of providing services and amenities. …
Mr McDonald considers that the extension of trading hours is not "compatible" with the sensitive land uses in the form of the residential subdivision to the south. Largely, he reaches this opinion on the basis that the acoustic assessment is not adequate. His view is that the acoustic report has not taken into account the traffic generation of the food and drink premises, including the drive-through facilities, which have not commenced operation. He points to the RMS Guide to Trip Generating Developments (2002), which considers common restaurant chains and their peak hour vehicle trips. Basically, he does not accept the agreed opinion of Mr Linnett and Mr Tumney that the appropriate customer volumes is 33 vehicles per hour, comprising 25 light vehicles and 8 heavy vehicles, during the period 11pm to 5am.
Mr McDonald relies on Chapter 4 of the CDCP, which identifies the need for a buffer between certain developments and residential use, which is considered a sensitive land use. He points out that, at the time of the grant of consent for the service station, there was a buffer between it and nearby residential dwellings of around 220m. Even in those circumstances, the Council determined that the 24-hour trading period was not acceptable. With the context of the site changing since that time, Mr McDonald maintains that the extension of trading hours is incompatible with the residential dwellings that will be built on the subdivided sites adjoining the southern site boundary.
Mr McDonald also opines that the extended trading hours is not appropriate to the rural environment of the adjoining land. He points out that there are no commercial land uses that operate 24 hours per day within the established rural environment, and says that the introduction of 24-hour trading will be unique and inconsistent with the rural character. He considers that the 24-hour operation will allow it to become a specific destination for late night trading, given the absence of other venues with 24-hour trading.
Further, Mr McDonald opines that the light poles and illumination will be a constant 'visual intrusion' when viewed from the rear windows and gardens of adjoining residential properties, which is incompatible with the peaceful enjoyment of the residential properties and with the rural environment in which the site is located.
Megaplay's position is instead that, in circumstances where the acoustic impact is acceptable, the planning considerations are satisfied. In particular, Megaplay submits, where the acoustic impacts are acceptable, the land use is compatible with the residential development to the south, which is consistent with the objective of the zone to "provide for a range of compatible land uses". Further, Megaplay points out that development for the purpose of "service stations" is a nominated permissible use in the RU5 zone in which the Valley View Estate is located, which indicates that such a land use is envisaged to occur in the same zone. Similarly, Megaplay submits that the proposed extension of trading hours is consistent with the future urban character of the area, as envisaged in the Hunter Regional Plan 2036. It relies on the evidence of Mr Quinlan that there are no impacts of the extended trading hours, the proposed change of hours will not be inconsistent with the zone objectives, and that Wine Country Drive is well placed to capture passing trade in the extended trading hour period.

The impact on the character of the area is acceptable

Whilst cl 2.3 of the CLEP requires that the Court "have regard to" the objectives of the RU2 zone, there is no requirement for each of the objectives to be met by the proposed development. Instead, there is a presumption that a use that is permissible in the zone is consistent with those objectives. As stated by McClellan J in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117], there is a general assumption that "development which is consistent with the zoning will be permitted". Further, the mere fact that a proposed development will introduce a new element to the area does not mean that the development or the resulting change in character is unacceptable. For the following reasons and contrary to the position of the Council, I find that the proposed extension of trading hours is acceptable having regard to the objectives of the zone and the character of the area.
Firstly, the objective of the RU2 zone to "provide for a range of compatible land uses" has little relevance to the consideration of the proposed development. It is an objective for development in the zone, and concerns the provision of a range of uses in the RU2 zone that are compatible with one another. As such, the objective informs the range of permissible uses in the RU2 zone, and is not directed to ensuring that permissible uses are compatible with land uses in adjoining zones. As none of the land adjoining the site on the western side of Wine Country Drive is zoned RU2, the objective has little relevance when considering the adjoining land uses on the western side of Wine Country Drive.
Nevertheless, secondly, the extension of the trading hours is not incompatible with the surrounding land uses. I have above found that the acoustic impact of the extended trading hours is acceptable. Mr McDonald's opinion with respect to incompatibility with the adjoining residential uses was founded upon there being an inadequate acoustic assessment. Contrary to his evidence, the use of the food and drink premises, and the drive through, was considered in the Noise Assessment and the volume of patronage was agreed by the acoustic experts. I accept the opinion of Mr Quinlan that, in circumstances where there are no offsite impacts of the extended trading hours, the extended trading hours will be consistent with the current amenity of the area and therefore compatible with the surrounding land uses.
Thirdly, the extension of trading hours is not antipathetic to the objectives of the zone. I accept the evidence of Mr Quinlan that the objectives of the zone can still be achieved even in the event of extending trading hours over a 24-hour period. In particular, consistent with the objective to ensure that the "type and intensity of development is appropriate in relation to the rural capability and suitability of the land…, the rural environment (including scenic resources) and the costs of providing services and amenities", I accept the evidence of Mr Quinlan that the proposed change in hours does not impact on the rural capability of the land and does not change its rural character, noting that the land is already used for that purpose and the current use forms part of the existing character of the area. I do not accept the evidence of Mr McDonald that the existence of the light poles is inconsistent with the character of the area, given that the formed road within the residential subdivision of Valley View Estate has street lights.
Fourthly, although the introduction of 24-hour trading for the service station and food and drink premises will effect a change on the site, in that there will be activity on the site during the periods 11pm-5am whereas there was previously no such activity, there is no reason why that change is unacceptable. Instead, the change is consistent with the developing urban environment, which is reflected in the recent residential subdivision of the Valley View Estate and the identification of the Valley View Estate as an urban release area and as an area of 'Future housing and urban renewal opportunities' in the Hunter Regional Plan 2036. Similarly, as submitted by Megaplay, the extension of trading hours is consistent with the specific emphasis, in the same Regional Plan, on development that supports tourism in the region. I accept the evidence of Mr Quinlan that Wine Country Drive links new growth areas and regional centres, and is well placed to capture passing trade. Further, there is no applicable policy or development control that would suggest that late night trading hours is an undesirable feature for the area, and there is no defined desired future character that the proposed extension of trading hours is contrary to.
Finally, I accept the submission made on behalf of Megaplay that the provisions of the CDCP concerning the requirement for a buffer are irrelevant given the premises already operates adjacent to the residential subdivision, both of which were approved by the Council. As submitted, Chapter C4 is intended to apply to "new development", and "is not intended for situations were conflict already exists". As such, even if there is a conflict that requires a buffer, it exists in the current land uses. As set out above, in circumstances where there are no adverse amenity impacts, the extension of the trading hours is not incompatible with the adjoining sensitive land use of the residential subdivision.
For the above reasons, the proposed development is acceptable having regard to the objectives of the RU2 zone (contention 1), and the matters raised in the context of the public interest (contention 4) similarly do not warrant refusal.

A trial period is appropriate

The Council says that, in the event that I am satisfied that it is appropriate to grant development consent, there should be a time limited period over which the extended trading hours is permitted, commonly referred to as a trial period. If such a condition is imposed on the grant of development consent, Megaplay can lodge a further development application for 24-hour trading before that period expires.
In support of its position, the Council submits that the trial period will give the Council the opportunity to appreciate the real impacts, especially in circumstances where there has been no assessment of the acoustic impact of large gatherings on the premises, and where the acoustic assessment is limited to the contemplated use of the premises based on vehicle numbers agreed to by Mr Linnett and Mr Tumney. The Council suggests that a trial period of 12 months would be appropriate.
Megaplay instead submits that a trial period is not warranted in circumstances where I am satisfied that the acoustic impact is acceptable. If one is imposed, Megaplay seeks that it be a period of 6 months.
I consider a trial period, or a time limited period over which the extended trading hours is permitted, is appropriate for three reasons. Firstly, it is appropriate in circumstances where there has not been an analysis of the acoustic impact of a large gathering of people on the premises, which is an event that may or may not occur, but is specifically anticipated by police through the Senior Constable from Cessnock. Further, the Plan of Management does not address how they would prevent such gatherings occurring.
Secondly, a trial period is appropriate to ensure that the actual use of the site does occur in accordance with what has been modelled in the acoustic modelling, where the modelling was done on anticipated levels of usage rather than on total capacity of the site. This will also capture any increased usage of the site that reflects Mr McDonald's concerns regarding the premises becoming a destination for late night trading.
Thirdly, a trial period will allow the opportunity to review whether compliance with the PTNL and the MNTL can be maintained through the noise management plan, or whether different acoustic criteria should be applied.
The appropriate period of time for the trial period is 12 months. This will cover the full ambit of events that typically occur over the year, across the four seasons over which different events occur in the Hunter Valley region.

Development consent should be granted

For the reasons that are given above, the contentions raised by the Council do not warrant refusal of the development application. I am satisfied that the extension of the trading hours to allow 24-hour trading will not have an adverse acoustic impact, will not be incompatible with the surrounding land uses, and will not be antipathetic to the objectives of the zone. Instead, the extension of trading hours is consistent with the urban development in the area and the premises are well placed to meet the demands of those using Wine Country Drive to access new residential areas.
Further, I do not accept that a justification for the proposed extension of trading hours is required, as contended by the Council. The Council's contention is that Megaplay has accepted the benefit of the existing consent subject to condition 58 that limits the trading hours, and therefore ought to demonstrate a change in circumstances (contention 3). This argument is advanced on the basis that, as put in particular 3.3, "the Applicant should not be relieved of the burden contained in condition 58 having otherwise accepted the benefit of the earlier Consent". The general principle concerning the benefit and burden of a development consent is discussed by the Court of Appeal, principally in relation to challenging the validity of a condition of consent, in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 at [81]-[83]. The present development application is a new application concerning trading hours. I do not accept the Council's position that subsequent development applications that seek to change trading hours ought to be justified by a change in circumstances.
Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been satisfied:

Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land, as set out above at [16].
The State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP Koala) applies to the site. As there is no vegetation clearing proposed in the development and the site is already developed, the site does not contain potential koala habitat and no further consideration of the provisions of the SEPP Koala is required.
I am satisfied of the matters in cl 101(2) of the SEPP (Infrastructure), as set out above at [15].

As a result, I am satisfied that conditional development consent ought to be granted.

Determination on conditions of consent

There were a number of conditions that were in dispute between the parties. The disputes include whether internal access should be permitted between the service station and the food and drink premises during the extended trading hours, and the wording of conditions. In relation to each dispute, I make the following findings:

The 12-month limitation on the period of the consent, proposed by the Council, ought to be imposed for the reasons set out above.
The deletion of the words "at any time" in condition 3 is appropriate in circumstances where it relates to exceeding the PNTL, which is expressed as a LAeq (15min) and therefore as a continuous equivalent sound level which has the same total energy level as the fluctuating noise within the same period, similar to an average. The words "at any time" do not have any relevance to an acoustic measure that is based on the LAeq (15min).
The deletion of the last paragraph in condition 3, requiring additional noise mitigation measures, is appropriate in circumstances where it is a duplication of condition 4.
I accept the position of Megaplay that the BCA report can be approved by either the Council or the private certifying authority. The Council has advanced no basis upon which the use of a private certifying authority is not appropriate.
The condition proposed by the Council for the prohibition of access between the service station facilities and the food and drink premises in between 11pm and 5am is not required. Whilst the Council seeks to protect the security of the service station by doing so, and by requiring payments for fuel to be limited to 'pay before you pump' and imposing minimum staff numbers and security measures, I do not accept that this is required to be stipulated in the conditions of consent. Instead, it is a matter for Megaplay as to how the security of the site is managed and it is sufficient for the security issues to be managed through the revised Plan of Management. For those reasons, the conditions requiring the prohibition of access, the use of the pay before you pump, the minimum staffing numbers between 11pm and 5am, and the use of security patrols, are not required, but are required to be addressed through a revision to the Plan of Management. It is sufficient for the revised Plan of Management to be provided to the Council.

Outcome of the appeal

For the above reasons, I am satisfied that development consent ought to be granted subject to conditions. The proposed extended trading hours are acceptable in their impacts and in the context of the developing urban environment.
The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the extension of trading hours to 24 hours, 7 days a week, for the service station and food and drink premises at 247 Wine Country Drive, Nulkaba, subject to the conditions of consent in Annexure A. 3. The exhibits are returned, except for Exhibits A and 5. ………………………… J Gray Commissioner of the Court Annexure A (173045, pdf)

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: 23 November 2021

(2004) 138 LGERA 237

(2006) 144 LGERA 408

At a glance

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Judgment (17 paragraphs)

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Cases Cited (5)