Pace v Gosford City Council

DATE OF JUDGMENT DELIVERY: 04/13/1999

APPLICANT Mr P. Tomasetti, barrister INSTRUCTED BY G.J. Halpin and Co LEGAL REPRESENTATIVES: RESPONDENT Mr D. Parry, barrister INSTRUCTED BY P.J. Donellan and Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 Commissioner : This was a Class 1 Appeal No. 10690/98 between Antonio and Antonia Pace and Gosford City Council. By leave, the Applicant was amended to be Livio Pace.

2 There was a deemed refusal of development application No. 786/99, for the intensification of an existing primary industry, which was a natural ground water extraction and bottling plant.

3 The intensification was by virtue of increasing the hours of production and increasing the number of employees, which also generated increased traffic.

4 Currently, the approval by Consent Orders, on 12th June 1998, allowed operation from 7.30 a.m. to 5.00 p.m. Monday to Saturday with four (4) employees and eight (8) truck movements per day (4 in, 4 out).

5 The proposal was for operation from 6.00 a.m. to 11.30 p.m. Monday to Saturday. A total of 28 employees in two shifts, and about 48 truck movements per day (24 in, 24 out) with some truck movements after 6.00 p.m. 6 The neighbours to the bottling plant on the eastern side were the Azzopardi family who had a combined market garden and chicken farm.

7 They had sought to become a party to the proceedings, but were not given leave by the Court. However, their Solicitor was permitted to adduce evidence in chief from his clients, and to make submissions at the conclusion of the hearing.

8 Following the conclusion of the hearing, an application was made for a further mention of the proceedings. The application was granted, and at that mention the final submission from the Azzopardi's Solicitor was that his clients unreservedly withdrew all their objections to the proposal.

9 The Respondent and the Applicant, however, both adhered to their individual evidences and submissions.

10 The Court therefore proceeded to consider the matter before it.

11 During the proceedings the Applicant refined the vehicular and staff requirements as follows:- o 19 staff in two shifts including management being 13 during the day and 9 at night; o 20 semi-trailer movements per day (10 in, 10 out); o 16 other smaller truck movements per day, (8 in, 8 out); o About 104 total vehicle movements per day (52 in, 52 out) which included all the trucks, staff vehicles, panel vans and small car-sized delivery vehicles.

12 It was put that these increases in activity still kept the production of the water plant to below 25 megalitres per annum. This limit was set down in the existing development consent.

13 Also, it was put by the Applicant that the 4 staff in that existing approval were plant staff only, and management personnel and drivers were additional.

14 The locality was rural with various forms of agriculture and rural industries taking place near the subject property.

15 The plant was located on Lot 1 DP 430586, which was part of a holding owned by Antonio and Antonia Pace, with frontage to both Euloo Road and Peats Ridge Road, Peats Ridge. Lot 1 was 23.22 ha.

16 Two of their sons, represented by Livio Pace at this hearing, leased the site of the bottling plant.

17 There was one house adjacent to the plant on Lot 1, and the Road access and the address was 299 Euloo Road. The latter was a dead-end road about 5 km long, which came off Peats Ridge Road, and dog-legged between the boundaries of various rural properties until it reached No. 299.

18 There was a right-of-way which continued the alignment of the road back to Peats Ridge Road, which created, on paper, a loop. However, the connection had never been built to date, apparently, because of an intervening creek and a gully.

19 The road had a tar centre seal as far as the common boundary with No. 209 Euloo Road, the Azzopardi property. From there to the plant gates was gravel.

20 The Azzopardi house was about 80 m from the common boundary and slightly uphill and therefore elevated above the bottling plant. It was about 25 m from the edge of the tar on Euloo Road. The road climbed up the slope for about 1½ km from No. 299 until it reached the outskirts of the Peats Ridge Village.

21 At the Azzopardi home, there was a back deck looking south-east, south and south-west over their property between homestead trees. There was some aspect towards the bottling plant through a boundary row of trees, and over a boundary fence of sheet metal 2.4 m high. It had been erected as an acoustic barrier as a condition of the existing approval.

22 The pad for the bottling plant and the manoeuvring area had been excavated into the slope of the hill. As a result there was an embankment down from the fence within the subject property of about another 2 m.

23 The trucks entered No. 299 Euloo Road at the western end after passing both No. 209 and the house on the subject property.

24 After traversing the length of the driveway the trucks then turned east to come into the manoeuvring area between the plant and the eastern boundary. Empty timber pallets for the packing of bottles were stacked in that area. The semi-trailers reversed into a loading bay at the southern end of the plant and a large sliding door was closed after the vehicle. The section of the road, and the manoeuvring area which were gravel at the time of this hearing, were soon to be tarsealed in accordance with a condition of the earlier consent orders.

25 Water wells were contained within secured out-buildings. The bores from which the water was drawn from the ground were piped underground from the wells to the plant. The wells were located to the south and to the west of the plant. Current production was about 14 megalitres per annum.

26 There was a night lighting and a video security system for the plant and the wells. 27 There were other wells leased on neighbouring properties by the Applicant, but these were used to monitor water quality, and any effects on the water table.

28 The Pace and the Azzopardi holdings were generally cleared for pasture, cultivation or for farm buildings.

29 Properties to the north were uphill across Euloo Road and contained some trees on the boundary and then cleared agricultural land.

30 The houses on those properties were well to the north, close to the road but on another section of Euloo Road where it looped back towards Peats Ridge Road.

31 There was a quarry to the south and slightly downhill but its workings could be seen from the subject property about a kilometre away.

32 To the east of the plant on the far side of the Azzopardi property were three chicken sheds. Not far from them was another house on the next property to the east.

33 The evidence was that there were about 10 houses along Euloo Road which trucks must pass going to and from the subject property. All were within about 30 m to 50 m of the road.

34 Nearly all were associated with a primary industry, or an agrarian pursuit of one kind or another. Amongst them were boarding kennels, a rural machinery engineering and maintenance plant, commercial nurseries with extensive hothouses, poultry, fruit and vegetable growing, quarrying and pasture. There was one other water extraction business on Euloo Road but it had the water trucked out to be bottled elsewhere, and it had smaller production units than the subject development.

35 The amended Statement of Issues was:- 1. It is reasonable for the Council to have refused the Applicant's application on the following grounds:

1.1 the activities of the plant contained in the application as a night-time activity will significantly affect the amenity of adjoining properties through excessive noise; 1.2 the increased vehicular movements along Euloo Road will detrimentally affect the amenity of other properties in Euloo Road through road noise and increased road usage; 1.3 the proposed use if approved will significantly impact upon the working farm amenity by altering the basic character to a predominantly industrial/commercial nature; 1.4 the close proximity of the plant to neighbouring dwellings in the context of a rural environment is such that significant intensification on the site will adversely affect the neighbour's living environment through noise traffic and general activity levels; 1.5 the Applicant's alleged breaches of conditions of an existing consent designed to address amenity of the neighbourhood.

2. Whether the Consent Authority/Court can give consent to an activity/development which has already been commenced or partially commenced and whether that activity/development must cease prior to the Consent Authority/Court being able to grant the consent sought in this appeal.

36 The land was zoned Rural (A) under Interim Development Order No. 122 and the use was permissible with the consent of the responsible authority.

37 The reasons given for the current level of activity at the plant was related to the 1998 Sydney Water Contamination Crisis which had created a huge demand for bottled pure water.

38 After the crisis the demand had continued unabated. The applicant continued the operations on the basis that the Consent Orders agreed between the parties had allowed maximum production of 25 megalitres per annum and even at current levels the plant produced only about 14 megalitres per annum. The Applicant contended that it was always known to the Respondent that the initial staffing and truck frequency of the plant, was never intended to be the ultimate levels, if the maximum permitted production of water was to be approached. A letter was produced in Exhibit 18 and as the last document in Exhibit F to illustrate this.

39 This was not accepted by the Respondent, and there were apparently other proceedings in hand related to these breaches.

40 The building the water bottling plant was located in had been originally been granted development consent as a packing shed in 1994 and Building Approval was granted in November 1994.

41 An initial development application for the bottling plant was granted in October 1994 with a limitation on production of 8 megalitres per annum.

42 It was the consent orders of 1998 which allowed expansion to 25 megalitres per year.

43 There was another aspect of the development which was settled in the Consent Orders. It was the location of the building itself.

44 Although the initial Development Consent required the location of the shed some 200 m from the eastern boundary of the subject property, the plans issued by the Council with the Building Approval showed it only 40 m from the same boundary and closer to Euloo Road. That was where it had been built. 45 This had brought the activity at the plant considerably closer to the nearest two residences, one on the site itself, and the other on No. 209. It did not change the proximity of road traffic to the houses along Euloo Road.

46 There were revised draft Conditions of any consent in Exhibit 13 which the Applicant had responded to in Exhibit K2.

47 The Court heard the Respondent's evidence from:- o Mr M. Glenn Senior Town Planner for the Council; o Mrs K. Azzopardi Resident of 209 Euloo Road; o Mr J. Coady Consultant Engineer and Town Planner; o Mr. M. Azzopardi Resident of 209 Euloo Road.

48 There were expert acoustic reports from Mr L. Challis, but he was not required for cross-examination.

49 The Applicant's evidence was heard from:- o Mr P. Mitchell Consultant Town Planner and Engineer; and o Mr L. Pace Applicant of 93 Stella Street, The Entrance.

50 There were expert acoustic reports from Mr R. Tonin in evidence, but he was not required for cross-examination.

51 Also an assessment of external night lighting levels by Mr G. Hawkings, consultant lighting engineer was in evidence and he was not required for cross-examination.

52 It was put to the Court that there was an issue estoppel due to the fresh application being under s.78A of the Environmental Planning and Assessment Act when it should have been under s.96 as a modification of an existing approval.

53 The Court in considering this appeal came to the conclusion that the applicant was entitled to make the application under s.78A as it was different to the earlier application. The letter in Exhibit 18 supported this.

54 Also, in the earlier approval, being by Consent Orders, the merits were not heard. In this case they have been.

55 In considering the submission that the Court cannot approve the subject proposal because it has already commenced. A number of precedent cases were cited.

56 First of all the Court was conscious that this was not an application for more physical buildings or plant.

57 The application was for the intensification of operations, albeit that would necessitate more personnel, more vehicles, more materials, to work in and pass through, the plant. But there was to be no new buildings or facilities even though some alteration to them might be necessitated by the merits.

58 The Court was satisfied by the Applicant's submissions that the precedent cases were not directly applicable to this appeal and therefore there was no reason for the Court to refuse the application on those grounds alone.

59 The zoning of the subject land and substantial areas around it was zone 1(a) Rural (A) Agriculture.

60 The provisions of the IDO were that other uses than agriculture, permissible with consent in the zone included educational establishments, extractive, industries, plant nurseries, riding schools, rural industries.

61 The other zones Nos. 1(b), (c), (d), allowed somewhat fewer uses, but still included a range of alternatives.

62 There was in Zone No. 1(c) Rural Purposes restriction of rural industries, and a predominance of agricultural uses.

63 There were in the Zone Nos. 7 lands several alternative zones for conservation and scenic protection purposes.

64 The statutory instrument was gazetted in 1979 and it appeared in that period a Statement of objectives was not attached to each zone although each had a purpose.

65 Some information on objectives was to be found in a non-statutory document in Exhibit 1 being the Gosford - Wyong Rural Lands Study and the subsequent Rural Lands IDO explanatory literature by the then N.S.W. Planning and Environment Commission.

66 The primary objective of the Rural 1(a) zone appeared to be to maintain it as viable land for agriculture. One of the main ways of doing this was by a restriction on the minimum area for subdivision.

67 Mr Glenn and Mr Coady tended to put the emphasis on the agricultural character of the area in the form of crops and orchards and pastoral activities.

68 Mr Mitchell saw the range of uses permitted in the IDO for the Zone No. 1(a) as allowing for a more comprehensive range of rural pursuits.

69 This was important in assessing Mr Coady's evidence on the impact on the amenity of the locality. The intensification of use was more akin to an industrial area than a rural use he said. This made it unacceptable in his opinion.

70 Mr Mitchell's opinion was that the Rural Zone No.1(a) was in effect the only zone under IDO No. 132 where rural industries could be conducted. There was a Zone No. 4 Industrial (Extractive) which may have included a potential for the subject use, but was mainly oriented towards quarrying. Only light industries may have been acceptable in the Zone No. 2 Village areas. The subject use was a primary industry - the production of water, and would most easily fit the definition of Rural Industry under the IDO.

71 As a result the Zone No. 1(a) must be seen as the multi-purpose rural use zone in the Gosford area, and in that context the Court formed the opinion that Mr Coady's characterisation of the zone could not be given substantial weight.

72 The current nature of the area included other intensive uses such as the nursery, the quarry, the farm equipment engineering business, the poultry sheds. The evidence from Mr Azzopardi and Mr Pace indicated that especially in dry and dusty periods, the ploughing, seeding and spraying of crops could also be seen as an intensive use of rural land. It also appeared that poultry was picked up by semi-trailers in the early hours of the morning because the birds became less distressed at night. Certainly their maintenance was a 24 hour cycle whilst they were in the chicken sheds.

73 The nurseries also required some attention 24 hours per day. Crops were occasionally tended at night especially when urgent attention was needed at harvest.

74 The nature of the already approved water bottling plant could not be seen as foreign to this setting, it was the effects of its intensification which were relevant in this appeal.

75 There had been objections other than from the Azzopardi's and they were contained in Exhibit 14. 76 The Borg family lived on Nardoo Road, another dead-end road which came off Euloo Road. Their concern was the semi-trailers using the narrow carriageway. They had encountered trucks from time to time, whilst driving and whilst stationery on the corner of Nardoo Road and Euloo Road where their mail box was located.

77 The Calleija objection was an "in principle" objection to the sale of water obtained from the aquifer. They considered that the natural ground water should be conserved for agricultural purposes.

78 The Knutson objection was also concerned about the large trucks on the narrow carriageway and potential danger, although the advantages of employment related to the water bottling plant were recognised. It suggested that Euloo Road should be extended to complete the loop to Peats Ridge Road and so enable a direct link from the plant without passing all the houses.

79 The Mangrove Mountain Districts Community Group Inc. also objected. At its general meeting of 2 October 1998 it had passed unanimous motions. One motion was based on a similar principle to the Calleija objection. The other motion was directed at the Council inquiring why the existing development consent conditions were not being properly monitored and enforced.

80 A later letter from the Group sought that the plant be relocated to an industrial area.

81 The Applicant in his Exhibit O brought letters of support for the proposal from:- o C. Le Mesurier 134 Euloo Road; o A. Buono 75 Euloo Road; o I. McLeod RMB 1561 Euloo Road; o S.E. Johnston 90 Euloo Road; o B. Dyroff 9 Nardoo Road; o D. & L. Hodge RMB 1571 Euloo Road.

82 All said that they were aware of the extent of the proposed intensification of the use and the related additional truck and vehicle movements on Euloo Road and had no objection to it.

83 R. Arnott of Wisemans Ferry Road, one of the truck operators who was employed by the applicant also had registered his support.

84 The Azzopardi's in their oral evidence had indicated that a concern for traffic safety on the narrow pavement of Euloo Road. Nevertheless it was also agreed it was not an uncommon occurrence on narrow rural roads and the common practice was for both vehicles to move to the sides of the road and to pass. To date there had been no accidents, although there had been some potentially dangerous situations.

85 In Exhibit B it was noted that the Roads and Traffic Authority had approved Euloo Road for use by B Double Trucks.

86 Gosford Council had brought no objection to the gazettal of the road as a B Double Route. These trucks were the largest unescorted vehicles able to operate on public roads.

87 Mr Coady brought no evidence on Euloo Road in respect of non-compliance with safety requirements for Rural Roads.

89 The Court concluded the Road itself was satisfactory for the traffic which might be generated by the proposal provided the last gravel section of the existing roadway was bitumen sealed.

90 Turning to the noise impacts of the proposal, these fitted into two categories. The first was noise generated on-site, the second was noise and vibration generated by the trucks on the road. Both categories were related to amenity impacts on the houses along Euloo Road.

91 In the case of on-site noise the acoustic evidence indicated to the Court that activity within the building itself was not sufficient at the nearest off-site residence to be a concern during the day or the night.

92 If forklifts came outside the building to collect pallets, perhaps on occasions, accidentally knocking over a stack of pallets, then the noise could be objectionable but not sufficient for refusal of the proposal.

93 The simple task of ensuring there were sufficient pallets for night and early morning production inside the plant building prior to 6.00 p.m. each evening would appear to resolve any need for fork lifts to come out at night, and alleviate any nuisance.

94 Bitumen seal on the manoeuvring area should also minimise the noise of tyres rattling as the fork lifts moved.

95 The arrival of trucks and their turning and reversing into the building, and then re-emerging was the principal source of noise which may have been a nuisance from on-site activity.

96 Given the unreserved withdrawal of the Azzopardi objections, and theirs being the only off-site residence to be effected, the Court could not give this noise determinative weight, when it was possible for appropriate conditions of operation to be imposed to minimise the effects to acceptable levels.

97 The Applicant proposed that all vehicles shall have left the site by 6.00 p.m. at night (except for employees' private vehicles not exceeding 2.0 tonnes, and one truck each night which must enter the plant building before 10.00 p.m.).

98 In the morning, employees' private vehicles not exceeding 2.0 tonnes may arrive prior to 7.00 a.m., but no others. The truck which arrived between 6.00 p.m. and 10.00 p.m. the previous night may be loaded, but may not leave the plant building before 7.00 a.m. the next morning.

99 Given the acoustic evidence this appeared to the Court to mitigate any potential noise disturbance from the site and the plant to acceptable levels.

100 In regard to passing of trucks along Euloo Road, there was little doubt that operations into the night or from very early morning would be unacceptable. The proximity of the house on No. 209 to the road, combined with the uphill slope between the plant and No. 209 meant that laden trucks laboured in lower gears until some speed was built up further along the road where the slope became less.

101 The regularity of trucks mean that there would be, during the period between 7.00 a.m. to 6.00 pm. a maximum of one semi-trailer either going in or going out every 33 minutes.

102 For smaller trucks it meant about one every 18 minutes going in or out.

103 The acoustic evidence showed by day or by night, employees' vehicles were not a nuisance, unless, as Mrs K. Azzopardi said, a driver drove aggressively. Although a driver's behaviour off-site was not the responsibility of the Applicant, a suitable briefing of staff should minimise such occurrences.

104 The character of the area as described by Mr Coady, was not accepted by the Court, and therefore this frequency of vehicles related to the proposed intensified use could not be characterised as inappropriate to the rural amenity of the zone.

105 Given the controls proposed, on the types and times of vehicles arrival and departure the Court was satisfied that any adverse effects of the increased traffic would be mitigated to acceptable levels for all the houses along Euloo Road. 106 The night lighting of the plant was said in evidence to create glare, however the applicant volunteered to mask the globes and reflections to ensure no direct rays reached the house or the chicken sheds on No. 209.

107 The Court observed the evidence on the night-time view, and such masking was justified.

108 With the boundary landscaping proposed, it did not seem necessary to the Court, that the eastern wall of the factory be repainted a muted green colour.

109 Overall the Court formed the opinion that given the Applicant's implementation of appropriate conditions of development consent, there was nothing in the evidence sufficient to justify refusal.

110 Turning to the revised draft Conditions in Exhibit 13. The Court has reached the following conclusions:- o Condition 1 was unnecessary given the other controls for hours of operation, and arrival and departure on vehicles. o Several conditions were objected to by the Applicant because it was considered they were included in the existing Development Consent granted in 1998. o The Court accepted the Respondent's submissions that being a fresh application, all appropriate conditions should be attached to it so that it could stand alone independent of the original approval. o This could also mean the terms and conditions of approval of the intensification would be clear to everyone concerned. The repeat of, or similarity to any conditions in the 1998 consent would simply mean that where such requirements were already carried out to the same standard of the new approval, the condition(s) would have no work to do. o Conditions 8, 9, 11, 18, 19, 24 were in this category in the opinion of the Court and should remain in place. o The deletion of Conditions 2, 3, 4, 14, 16, 17, 25 and 27 as agreed between the parties was acceptable. o Conditions 9 and 29 were related and the Court has concluded the important components of Condition 29 were that it specified the screening function of the vegetation and that it should be maintained. Such maintenance should be to Council's satisfaction. o Condition 10 was requested to have added to it consent to store pallets and used packaging in the manoeuvring area. The Court has formed the opinion that provided this was done so that the storage was on the eastern side of the manoeuvring area, and no higher than the acoustic fence adjacent, then it was acceptable. But the loading and unloading of packaging or empty pallets, or their being taken into or out of the plant building must be restricted to between the hours of 7.00 a.m. to 6.00 p.m. o In view of the above amendments to Condition 10, Draft Condition 13 may be deleted. o Conditions 15 and 32 were related. Perhaps the Council was being cautious in view of the history of the existing development. Nevertheless it drew the applicant's attention to the need for approval of any further intended alterations or additions to the buildings on site. In regard to plant, being mechanical equipment installed on site related to the use, the Court accepted the Respondent's submission that the Council was entitled to consider and approve new equipment which might lead to changes in the environmental impacts of the use. Condition 15 can become a Note at the end of the conditions, Condition 32 should be clarified as referred to above. o Condition 20 last sentence should emphasise the need for vehicles to move as quietly as possible also. o Condition 21 introduced for the first time concern for motorcycles moving on the site between 6.00 p.m. and 7.00 a.m. The Applicant for the first time raised that the house on the subject property was occupied and the condition seemed to infer that vehicles related to it were not allowed to enter or exit the site, or move around on it between 6.00 p.m. and 7.00 a.m.

111 From the submissions on these matters the Court has concluded that the development consent related only to the use for a water bottling plant and water production.

112 The use of the site by residents was not confined by this approval. In regard to employees' private vehicles the Court accepted that a private 4WD could weigh 2.0 tonnes. Bearing in mind the potential for noise from a motorcycle at night, the Court accepted the Respondent's submission.

113 Vehicles needed to inspect or maintain the bore pumps at night should not be restricted from movement.

114 In regard to Condition 28 the Court accepted the Applicant's amended conditions as Exhibit K2.

115 Condition 31 should also be amended as per Exhibit K2.

116 Therefore, the Orders of the Court are:- 1. The Appeal be upheld; 2. That development consent is granted for the intensification of the water production and water bottling use of existing buildings and site at Lot 1 DP 430586 being No. 299 Euloo Road, Peats Ridge subject to compliance with the conditions in the attached Schedule; and 3. The exhibits be returned to the parties except for Exhibits 3, 7, 13 and Exhibits B, E, F, K2.

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