Allman Associates Pty Ltd v Wingecarribee Shire Council

[2016] NSWLEC 1126

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Allman Associates Pty Ltd v Wingecarribee Shire Council [2016] NSWLEC 1126
Hearing dates:	9 March, 2016
Date of orders:	07 April 2016
Decision date:	07 April 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Consent No. 14/1329 for the use of an existing barn for wedding receptions is amended by the Conditions of Consent set out in Annexure “A”. 3. The exhibits, other than exhibits 1, 6 and B, are returned.
Catchwords:	DEVELOPMENT CONSENT: appeal against conditions imposed on the development consent for the temporary use of a barn as a function centre for wedding receptions; maximum number of patrons; compliance with Building Code of Australia; amenity impacts on neighbouring properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW)
Cases Cited:	Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197 Lowe v Sutherland Shire Council [2005] NSWLEC 364
Category:	Principal judgment
Parties:	Allman Associates Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: Mr J. Robson SC (Applicant) Mr C. Shaw solicitor (Respondent) Solicitors: Tress Cox Lawyers (Applicant) Swaab Attorneys (Respondent)
File Number(s):	10635 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against some of the conditions imposed on Development Consent No. 14/1329 for the use of an existing barn for wedding receptions, this purpose being characterised as a function centre as defined under the Wingecarribee Local Environment Plan 2010 (LEP 2010), at 11 Ormond Street, Sutton Forest (the site), by Wingecarribee Shire Council (the Council).

2. Prior to consent being granted by the Council, the appeal was subject to mandatory conciliation on 5 November 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 26 November 2015, pursuant to s 34(4) of the LEC Act.

3. The development application was amended prior to consent being granted to change the proposed development to a temporary use (exhibit 6, attachment 7), pursuant to cl 2.8 of LEP 2010.

Issues

4. The applicant seeks the deletion of the following conditions of consent:

4. The use of the barn for wedding reception is for a period of 12 months only from the date of the granting of this consent. The barn is only to be used for wedding receptions for a maximum of 60 days in the 12 month period.

5. The maximum number of guest bookings permitted per function be 140 people.

25. No amplified music and sound systems are to be operated in the garden area.

27. The person with the benefit of this development consent must engage a suitably qualified and practising acoustic consultant to carry out noise monitoring designed to confirm compliance with the requirements of Conditions 21 and 22. The acoustic monitoring shall be carried out for the first five (5) wedding events of not less than 80 guests from 1 December 2015 onwards. The monitoring shall be carried out:

(a) In accordance with the current Australian Standard and the NSW Industrial Noise Policy

(b) Details of the monitoring shall be the subject of a report prepared by the acoustic consultant and provided to Council and including where applicable, detailed recommendations concerning any measures required to be taken to reduce noise levels to comply with Conditions 21 and 22.

5. The applicant seeks amendment of the following conditions (applicant’s version in italics):

7. No less than three (3) toilets in the vicinity of the barn are to be made available for guests at all times if between 100 and 140 people are attending a wedding reception. A plan indicating the location of the three (3) toilets is to be submitted to Council.

7. No less than three (3) toilets in the vicinity of the barn are to be made available for guests at all times if more than 140 people are attending a wedding reception. A plan indicating the location of the three (3) toilets is to be submitted to Council.

11(c).   No less than three (3) toilets in the vicinity of the barn (and no more than 40m distant) are to be made available to guests at all times if between 100 and 140 people are attending a wedding reception.

11(c).   No less than three (3) toilets in the vicinity of the barn (and no more than 40m distant) are to be made available to guests at all times if more than 140 people are attending a wedding reception.

6. The applicant contends that the Council has misinterpreted cl 2.8(2) of LEP 2010 in that the provision does not limit the granting of development consent to a maximum temporary use period of 12 months (Lowe v Sutherland Shire Council [2005] NSWLEC 364 [7] – [9]).

7. The applicant contends that the maximum number of persons ought to be limited to 200 in accordance with the Building Code of Australia (BCA) Compliance Report (exhibit 6, attachment 6).

8. The applicant contends that condition no. 25 should be deleted as it does not fairly and reasonably relate to the development the subject of development consent.

9. The applicant contends that condition no. 27 should be deleted because a suitably qualified and practising acoustic consultant has already carried out a number of tests on the use of the building which has demonstrated that its use complies with the NSW Industrial Noise Policy and further that the use of the building must operate so as to comply with the relevant legislation set out in the following conditions:

21. The person with the benefit of this development consent must ensure operational noise levels (LAeq) measured at 15 minute intervals for the development must not exceed rating background level by more than 5dB(A). when measured at the boundary of any affected residence. This is to be assessed at the most affected point on or within the residential property, or if that point is more than 30 metres from the most affected residence, it should be assessed at the most affected point within 30 metres of the residence. Without limiting the above, operational noise levels must also fall within the requirements of the acceptable noise level amenity of the area as specified by the NSW Industrial Noise Policy. In the event that operational noise is identified as exceeding the requirements of this condition, the person with the benefit of this development consent will be required to undertake such works as is necessary to remedy such exceedance within a period determined by Council.

Where the measured LA 90 background noise level is less than 30 dB(A) then the assumed background noise level is assumed to be 30 dB(A).

22. The person with the benefit of this development consent must comply with relevant noise control provisions contained within the Protection of the Environment Operations (Noise Control) Regulations 2008 (NSW) and Policies to ensure local amenity is not adversely affected by noise impacts associated with the development.

24. Any amplified music or sounds systems shall satisfy the requirements of Conditions 21 and 22 at all times.

10. The Council contends that the cumulative impact of wedding receptions at the site is a consideration, as the applicant operates wedding functions on the site pursuant to Development Consent No. 550/88 and purported existing use rights.

The site

11. The site is 13.13 hectares in area and irregular in shape. It is situated on the southern side of Ormond Street, on the corner of Conflict Street, Sutton Forest. The property is known as ‘Montrose House and Berry Farm’.

12. The site contains an existing house, an existing barn and other out buildings.

13. The existing barn is a single storey building, constructed in face brick with a metal clad gabled roof and internally consists of a commercial style kitchen, an accessible toilet and a barn floor area of 231sqm (exhibit 2, annexure B). The barn is a short walk from the main house and there is a ‘shop’ outbuilding between the main house and the barn.

Resident evidence

14. Five resident objectors and five residents in support of the proposal provided evidence on site at the commencement of the conciliation conference. An agreed summary of the residents’ evidence provided on site at the conciliation conference was tendered (exhibit D). The concerns of the resident objectors can be summarised as follows:

• The proposal represents an overdevelopment of the land;

• There is no consent for the use of the barn for wedding receptions. The existing use rights do not extend to the use of the barn;

• The amenity impacts on neighbours from the noise of the amplification of weddings on the site is unacceptable, particularly the use of the garden for weddings. There are also noise impacts from laughter, glasses and ceremonies that impact on the amenity of the neighbours;

• The sewerage system is inadequate, it overflows further down the hill and the sewerage infrastructure on the site cannot cope with 200 guests;

• The temporary 1 year consent should be maintained.

15. The evidence of those in support of the proposal can be summarised as:

• Local suppliers benefit from supplying Montrose Farm and it is vital to the local economy;

• The noise generated by functions is acceptable;

• The owners are responsive to any complaints made to them regarding amenity impacts on neighbours.

Planning framework

16. Function Centre is defined in the dictionary of LEP 2010 as:

function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

17. The site is zoned E3 Environmental Management pursuant to LEP 2010 and a function centre is a prohibited use in the E3 zone, as a function centre is not a use specified in items (2) or (3), being uses permitted without and with consent in the E3 zone, and so under item (4) of the E3 zone any development not specified in items (2) or (3) is prohibited. The relevant objectives of the E3 zone are as follows:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

18. Clause 2.8 ‘Temporary use of land’ of LEP 2010 is in the following terms:

(1) The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.

(2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 60 days (whether or not consecutive days) in any period of 12 months.

(3) Development consent must not be granted unless the consent authority is satisfied that:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and

(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

(c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and

(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

19. The site is listed as a heritage item (Schedule 5, LEP 2010, item I006, “Montrose” house and grounds). Sub-clause 5.10(10) ‘Conservation incentives’ of LEP 2010 permits consent to be granted for the use of a heritage item for a purpose not otherwise allowed by LEP 2010, contingent on the consent authority being satisfied that the proposal meets certain requirements, however, the applicant does not rely on this provision.

Expert evidence

20. The applicant relied on the expert evidence of Mr Ron Moore (BCA compliance), Mr Alex Jochelson (acoustic) and Mr Scott Lee (planning).

21. The Council relied on the expert evidence of Mr Alan Lindsay (BCA compliance), Mr Denis Boulavine (acoustic) and Mr James Lovell (planning).

Consideration

Condition 4

22. The nature of the cl 2.8 tests was dealt with by Acting Justice Moore (as he then was) in Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197 (Marshall), judicial review proceedings challenging the validity of development consents granting approval for the temporary use of two barns as a “function centre”, being a prohibited use in the applicable rural zone, pursuant to cl 2.8 of the Hawkesbury Local Environment Plan 2012 (Hawkesbury LEP 2012). Hawkesbury LEP 2012 contains the same version of cl 2.8 as LEP 2010 (an optional clause taken from the Standard Instrument – Principal Local Environment Plan) which is a provision that permits the Council to grant development consent to an activity that would otherwise be prohibited in the applicable zone. Relevantly, his Honour describes the nature of the cl 2.8 tests as follows:

113 The nature of the activities that are capable of being permitted by an application invoking cl 2.8 are, I remind myself, activities that are otherwise prohibited in a zone.

114 That any application that is sought to be approved for such a prohibited use seeks a significant indulgence for such a substantial departure from the planning controls applicable to a zone is reflected in two aspects of the clause.

115 The first arises with respect to the temporal limitation mandated by the clause if such an otherwise prohibited use is to be permitted. This aspect of the clause was the subject of Marshall Rural’s first complaint, a complaint dealt with and dismissed in my rejection of Ground 1.

116 The second element engaged by these proceedings is the requirement that the proposal will “not adversely impact” in the fashion specified in cl 2.8(3)(b). This test, cast in absolute terms reflecting the seriousness with which an application of this nature is required to be assessed, puts a very high hurdle in the path of any such application. The placing of such a hurdle requires that the Council must approach the consideration and determination of any such application with a marked degree of precision and caution.

23. With respect to the ‘temporal limitation’ referred to above at [115] (being a ground of appeal by the applicant in Marshall that cl 2.8 permitted a maximum period of 12 months for the temporary use to be validly permitted to run from the date of consent), his Honour held that the ordinary, obvious reading of the provision does not impose a second limitation in addition to the 28 days in any period of 12 months imposed by cl 2.8 of the Hawkesbury LEP 2012 and so a consent may be granted pursuant to cl 2.8 for any nominated limiting period or be open-ended, at [57].

24. The parties in this matter submit that they agree and accept the finding in Marshall in relation to the absence of a second temporal limitation in cl 2.8 and the respondent concedes that the planning advice provided to the Council at the time the consent was granted, advising Council that cl 2.8 of LEP 2010 required the consent to be limited to 12 months and on the basis of which the consent was in fact limited to 12 months, was an incorrect interpretation of cl 2.8. Notwithstanding Council’s conceded position on this aspect of the appeal, the Council maintains that the consent should remain limited to a period of 12 months.

25. I accept the applicant’s submission that as wedding reception activities have typical lead times in excess of 18 to 24 months, limiting the consent to 12 months is impractical. However, in cautious consideration of the high hurdle imposed by cl 2.8(3)(b) of LEP 2010 that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, I am of the view that a nominated limiting period is appropriate for the consent. The applicant will then have an opportunity to demonstrate to the Council that another development consent for the use of the barn for wedding receptions should be granted at the end of the nominated limiting period of this consent. For this reason, and in consideration of the lead times for wedding receptions nominated by the applicant, the use of the barn for wedding receptions is for a period of 36 months only from the date of the granting of the consent.

26. The parties agree and the applicant accepts that cl 2.8 of LEP 2010 permits a maximum frequency for the use of the barn for wedding receptions per annum of 60 days. For this reason, condition 4 must include a maximum use limitation consistent with cl 2.8 of LEP 2010.

Condition 5

27. The applicant seeks to have the maximum number of guest bookings permitted per function increased from 140 to 200 guests. The consent limits the maximum number of guests per function in the barn to 140.

28. The floor area of the barn is 231.7sqm and the floor area of the barn available for guests attending a wedding reception is 190sqm (exhibit 2, annexure B). The applicant submits that development the subject of the consent is for the temporary use of the barn for wedding receptions. The Council submits that there would be less than a metre square per guest available within the barn during a function for 200 guests. No evidence was tendered, such a table layout, to demonstrate how the barn might accommodate 200 guests, when there is less than a metre square per guest available within the space.

29. I accept the agreed evidence of the BCA experts that the three toilets available, being the accessible toilet within the barn and the two toilets within the vicinity of the barn, are sufficient for 140 guests and comply with the BCA requirements. I accept the agreed evidence of the BCA experts that two additional urinals, or toilets, would be required for a maximum of 200 guests and that the two additional urinals or toilets could satisfactorily be provided as portable toilets.

30. While I accept that 200 guests can be accommodated on the site, with the addition of two urinals (or toilets including portable toilets) in compliance with the BCA requirements, the applicant has not demonstrated how the barn can comfortably accommodate 200 guests for a wedding reception in an area of 190sqm and I am not satisfied that it can. For this reason, condition 5 is not amended.

31. As the maximum number of guests bookings permitted per function in the barn is limited to 140, conditions 7 and 11(c) are not amended.

Condition 25

32. I accept the applicant’s submission that a restriction on the use of the garden area does not fairly and reasonably relate to the development the subject of the consent, which is for the temporary use of the barn for wedding receptions. Any use of the garden inconsistent with Development Consent No. 550/88 is a matter enforceable under the earlier consent. For this reason, condition 25 is deleted.

Condition 27

33. I accept Mr Boulavine’s evidence that it is sufficient to require the person with the benefit of the consent to carry out one noise assessment for a wedding of not less than 80 guests in order to demonstrate that the actual noise is consistent with Mr Jochelson’s prediction. I accept Mr Boulavine’s expert opinion that requiring noise assessments on five separate occasions is excessive.

34. I accept the agreed evidence of the acoustic experts that the minimum 80 guests for the noise assessment is appropriate, as it is the amplified music in the barn that increases the level of noise regardless of the number of patrons.

Findings

35. For the reasons set out in the judgment, Development Consent No. 14/1329 for the use of an existing barn for wedding receptions is amended as follows:

• Condition 4 is amended for the temporary use of the barn for wedding receptions to be for a period of 36 months only from the date of the granting of this consent and the maximum frequency for the use of the barn for wedding receptions per annum is 60 days;

• Condition 5 is not amended and the maximum number of guest bookings permitted per function is 140 people;

• Condition 7 is not amended;

• Condition 11(c) is not amended;

• Condition 25 is deleted;

• Condition 27 is amended to require one noise assessment for a wedding of not less than 80 guests.

Conclusion

36. In amending the consent for the development made pursuant to cl 2.8 of LEP 2010, I am satisfied that the temporary use will not adversely impact on any adjoining land or the amenity of neighbourhood, in accordance with the terms of cl 2.8(3)(b). The consent does not add to the frequency or scale of wedding receptions approved under the previous consent, nor allow a larger numbers of guests than could already be present on the site and so I accept the agreement of the planning experts that there is no cumulative impact arising from the consent as amended for the temporary use of the barn for wedding receptions.

Orders

37. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. 14/1329 for the use of an existing barn for wedding receptions is amended by the Conditions of Consent set out in Annexure “A”.

3. The exhibits, other than exhibits 1, 6 and B, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

10635 of 2015 O'Neill (C) (240 KB, pdf)

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Amendments

07 April 2016 -

Decision last updated: 07 April 2016