Brinara Pty Limited v Gosford City Council

[2010] NSWLEC 1196

Land and Environment Court

of New South Wales

CITATION:	Brinara Pty Limited v Gosford City Council [2010] NSWLEC 1196 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Brinara Pty Ltd RESPONDENT Gosford City Council
FILE NUMBER(S):	10873 of 2009
CORAM:	Moore SC - Morris C
KEY ISSUES:	DEVELOPMENT APPLICATION - EXISTING USE :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Gosford City Council Interim Development Order No. 122 Civil Procedures Act 2005
DATES OF HEARING:	20/07/10-22/07/10
EX TEMPORE JUDGMENT DATE:	22 July 2010
LEGAL REPRESENTATIVES:	Mr M Astill, Solicitor Mr M Baird, Barrister instructed by Mr P Donnellan, Solicitor

JUDGMENT:

The land and
environment court
OF NEW SOUTH WALES

MOORE SC
MORRIS C

22 July 2010

10873 of 2009 Brinara Pty Ltd v Gosford City Council

This decision was given extemporaneously and has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONERS: As one travels toward the north-east from Gosford toward The Entrance along the Central Coast Highway, after the turnoff to Terrigal, one travels through a scenic ridgeline area known as Erina Heights. The site that is the subject of these proceedings is located on a rising element of the Central Coast Highway on the northern side of the road on the ridgeline.

2 The site is presently the subject of a development consent that arose out of consideration by Gosford City Council (the council) of an application covering two allotments, they being Lot 11 in Deposited Plan 847114 and Lot 5 in Deposited Plan 862212, which are together known as Nos. 373-375 the Central Coast Highway. The former somewhat haphazard (but nonetheless commercial) development that had existed on those two allotments was the subject of an application to the council, and approved by the council, for the construction of a modern commercial retail building generally at grade with the highway and with car parking for some eighty-seven vehicles between the building and the highway. As a consequence of the topography and the land falling away quite steeply to the north, the structure is presently (and was proposed to be) supported on a number of concrete pillars taken down to an appropriate foundation level behind the building.

3 The present proposal seeks the consent, first, of the council (and now of the Court) to use the area underneath the floor pan of the commercial development for the purposes of a commercial storage facility comprising several hundred storage lockers of varying sizes on two levels. The storage facility area would be accessed by a down ramp on the western side of the existing structure with egress being via a ramp on the eastern side of the existing structure. Behind the area of the footprint of the existing structure would be constructed a parking area and access to the storage facilities, that parking area being held up partially by an existing retaining wall that runs from west to east for approximately sixty per cent of that part of the site back to the western boundary.

4 The present commercial uses of the level that is approximately at grade with the highway are a liquor shop, a fruit shop and a convenience store granted consent as commercial premises under development consent 25760 of 2004.

The issues

5 The issues that arise with respect to the present proposal for our consideration and determination are comparatively confined. The first is whether a proper consideration of the statutory regime restricts the present permitted use to merely the car park area and the existing used floor pan area of the present structure and thus, as a consequence of the relevant provisions of the Environmental Planning & Assessment Act 1979 (the Act) and the Environmental Planning & Assessment Regulation 2000 (the Regulation), would prevent any extension of that use (some preliminary questions of which have been dealt with by Justice Pain in her judgment Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25) or whether, on the applicant’s position, a less constrained position applies and that in effect the development footprint (as opposed to the physical footprint) of that which is permitted as a consequence of the existing consent extends if not to the totality of the site, at least to everything to the south of and including the existing retaining wall that is erected on the site.

6 The council puts the proposition through its barrister, Mr Baird, that the proper understanding of the use that arises from the present development consent does not extend (and cannot extend) to permitting any of the activities that are proposed in the present application. The position that is put by Mr Astill, solicitor for the applicant, is that the shadow of the consent (as it were) for the approved development permits commercial use over the totality of the site or at least to that area to the south of and including the retaining wall.

7 During the course of the proceedings, we have had the benefit, both during informal discussions during the course of the site inspection, to which we will return, or from formal oral evidence in Court, of a number of expert witnesses. They were, on behalf of the council, Mr Newbold, a planner and urban designer; Mr Singh, a statutory planner; and Mr Keato, who was a senior compliance officer and senior building surveyor who dealt with compliance issues. For the applicant, we had planning evidence from Mr Rollinson and acoustic evidence from Mr Atkins.

8 There are a comparatively modest number of matters arising out of the environmental planning instruments, in our view, that require our consideration. From the Gosford Planning Scheme Ordinance, the matters that are relevant (if we need to proceed to a merit assessment of the proposal) arise, firstly, from cl 5(3) that requires that we must not grant consent for development on land within a zone unless we have taken into consideration the objectives of the zone and the consistency of that development within those objectives.

9 The site is within the 7(c2) Conservation and Scenic Protection (Rural Smallholdings) zone. There are a number of objectives to that zone, the relevant ones of which in these proceedings, in our view, relate to non-residential uses and are contained in objective (c), particularly (ii) and (iii) of that objective, they being:

(c) to allow for non-residential uses where those uses are:
(ii) unlikely to adversely affect the aesthetic and scenic value of the land and its setting; and
(iii) unlikely to interfere unreasonably with the amenity of adjoining properties.

10 Several development control plans have been tendered as part of the council’s material. One that is, in our view, of particular relevance is Development Control Plan 189 which deals with a number of provisions and activities in designated scenic areas within which the present site falls (in a landscape unit known as the Coastal Valleys). As part of the discussion of what is anticipated for this area there are set out a number of development objectives and two of them are particularly relevant in our view. They are development objective (2) which reads:

Opportunities for increases in densities and scale are available in areas not subject to visible constraints or other physical constraints. Visually constrained land includes land on main roads within scenic protection areas, within scenic protection areas and conservation zoned areas.

11 There is no contest that this is land on a main road within a scenic protection area. Also, there is development objective (5) which states:

Uses of a retail and commercial nature and associated signage permitted in scenic protection zones are to be, where achievable, of a style and scale which reflects the rural nature of the area in which it is located.

12 There is no contest that except for the long-term existing use rights, which culminated in the development consent that presently defines the permitted commercial uses on the site, commercial uses on the site would otherwise not be permitted.

Site view

13 We undertook a view of the site and we also visited the adjacent property, owned by Mr Blount and his partner, immediately to the north and downhill of the site. During the course of the site inspection, we had the opportunity to examine the rear area below the occupied floor pan of the site; to stand on the upper level balcony at the northern side of the existing commercially used area of the development (in the vicinity of where are presently installed a number of air conditioning units together with black acoustic shielding panels - a matter to which we will return); and also to inspect Mr Blount’s property and have the opportunity to look uphill from his car turning circle area toward the development.

14 There is no doubt, I note on our behalf at this time, that a deal of the screening vegetation that presently exists on the applicant’s property (that shields the present development from the Blount property) is comprised of lantana and privet, both of which are regarded as noxious weeds and are plants upon which it would be inappropriate to rely for landscaping purposes.

Current consent

15 There are a number of matters that are required by the present development consent that have either not been built or done, or have not been built or done in accordance with the approved plans or the construction certificate plans - there being some modest degree of discord, potentially, between the development consent plans and the construction certificate plans for the built form and the second construction certificate plans for the bulk earthworks - a matter to which we will return later.

16 Of particular relevance, we note at this point, is that on lot 11, the smaller allotment immediately to the west of the principal allotment, there is currently erected a dwelling structure which is proposed to be removed as part of this application and is required to be removed as part of the existing consent. That building is to be replaced with landscaping between the boundary and the Central Coast Highway and there is an agreement in these proceedings that there should be a modest degree of further landscaping on that element of the site compared to that which was required as part of the present development consent.

17 As we earlier noted, there are two construction certificates that relate to the existing development. The first of them is a construction certificate for the bulk earthworks, the terms and plans associated with which are relevant to the retaining wall that presently exists on the site as we have earlier described. The second is a construction certificate for the construction of the main structures on the site. There is, in some respects (and particularly two of which are relevant in these proceedings), differences between the development application approved plans and the construction certificate plans, taking the view that the construction certificate plans in the instance of that dealing with the structures is taken at its most expansive rather than on the more limited basis put by Mr Baird.

18 The first thing we note is that the construction certificate plans for the built structures are said by the applicant to incorporate a second major concrete slab below the floor pan of the existing commercial structures and it is this constructed slab that is proposed to be the upper of the two storage levels on the site (if the present application were to be approved).

19 We have had in evidence, attached to the affidavit of Mr Keato, a variety of plans that have been taken from the council’s files, including one which has a stamp that may or may not incorporate it in the construction certificate and hence transfer it into the development consent by virtue of the statutory provisions.

20 However, for the purposes of these proceedings, we consider that we are obliged to conclude, or at least to take at the highest for the purposes of these proceedings, the proposition that what we might describe as the mezzanine slab was incorporated in the construction certificate plans for the structures; thus is transported statutorily into the development consent; and is therefore approved. We have had in evidence from Costin Rowe Consulting, an engineering firm, a letter concerning this slab which says in response to some enquiries made by the council of the principal certifying authority for the development as follows:

The concrete level constructed below the ground floor commercial premises is acting as a bracing diaphragm. This component of the structure provides lateral bracing to the building and is integral to the overall lateral stability of the building. The structure provides lateral restraint against the action from wind and earthquake loads and horizontal loading from the basement level retaining walls.

21 Therefore, we are satisfied that, if there is to be any contest about whether or not the mezzanine slab is part of the present approved development or not, it is not a matter upon which we should speculate or express any opinion, but we proceed to take the applicant’s case at its highest and proceed on the basis that the mezzanine floor is an approved structure.

22 A somewhat different position arises with respect to the retaining wall. We have in evidence a copy of the construction certificate issued by Dix Gardner Pty Limited, building certifiers and strata plan certifiers, concerning the bulk earthworks. There are two of the construction certificate plans for the earthworks that are relevant, in our view. The first of them is plan C03, which makes it clear that, at the rear of the site, there is to be a retaining wall of some description at approximately the location, if not precisely at the location, where the present retaining wall that we saw on the site has been constructed. It is appropriate now to describe briefly the nature of that retaining wall.

23 It is a retaining wall that is several metres high; it is a retaining wall that is vertical; and it is a retaining wall that is intended to retain an at grade with the top of the wall, car park area for the proposed storage facility.

24 It is clear from plan C03 of the bulk earthworks construction certificate, being certificate 56/06N, that what is intended is an area that has a sloping batter from south to north for its principal length. That is made abundantly clear, in our opinion, by a consideration of a relevant section through that which appears on C06, part section number 5, that shows two retaining walls with batters in the vicinity of each of them, rather than a single large retaining wall of the nature that presently exists on the site. We are therefore of the view that there is no basis upon which we could conclude that the present retaining wall structure has been lawfully erected as part of the present development consent. The consequences of that we do not consider are relevant to the question of the lawfulness of the proposed use but are relevant for matters of merit consideration and where the proceedings would go if a merit assessment were to result in a development consent.

The existing use

25 We now turn to the question of the arguments about the limitations and restrictions on the existing use. They arise particularly from ss 107 and 108 of the Act and the regulation made pursuant to s 108 in cl 42 of the Regulation which provides:

(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification:

(a) must be for the existing use and for no other use, and
(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

26 The relevant question that arises for our determination is in fact what is the dimension on the site of the approved use arising from the present development consent - it being in our view clear that, if the council’s position is adopted (that is, that the commercial use is confined to the floor pan and the car parking area), it is not possible to grant an approval to the present proposal and, if the applicant’s position (that it attaches to the totality of the allotments) is correct then it is possible to grant such a consent.

27 The relevant part of cl 42 requires that any enlargement, expansion or intensification must be carried out only on the land on which the existing use was carried out immediately before the relevant date. The matter that therefore requires consideration is what constitutes the land for those purposes.

28 To understand that properly, there is some necessity to turn, in a little more detail. to the development consent plans to the extent that they are relevant. They were annexed to the affidavit of Mr Keato in the proceedings. The relevant plans that we describe are:

plan 01 which shows the car parking and commercial footprint; and

as part of the indicative site plan an indication of vegetation to the rear of the present structures and certainly does not appear to show any retaining walls or anything else of that nature to the rear of the present outline of the structure.

29 A similar position can be understood from the concept stormwater plan; from the erosion and sediment control plan; and, particularly, from the plan that is noted as DA-(g) attached to Mr Keato’s affidavit, which is the concept landscaping plan which makes it clear that there is no activity intended (apart from landscaping) to the north of the existing structure. To assist the understanding of the reader, a copy of that plan is provided below.

30 There are, in our assessment, five areas that we need to consider in determining what might be the scope of the approved development. They are:

the ramp to the west;
the ramp to the east;
the mezzanine;
the bottom area underneath the mezzanine but within the shadow of the building; and
the area to the north of the car park area.

31 For the purposes of this decision, we accept that the ramps, although not shown in the development application plans, are incorporated in the structural construction certificate plans quite explicitly and that we therefore, again taking it at the highest, proceed on the basis that those ramps form part of the presently approved use of the site. The two ramps as approved on that basis appear to lead to an area that does not have an approved use or development structures on it as part of the structural construction certificate plans.

32 There is, in our view also the fact that, although the construction certificate plans note the retaining wall at its present location and do not refer to any batters or secondary retaining walls, the construction certificate plans for the structures note that wall as being completed and therefore it is not able to be transported into the development consent by those construction certificate plans. As we have earlier noted, it is not constructed in accordance with anything that is provided for in the bulk earthworks construction certificate plans and therefore cannot be regarded as incorporated in the development consent as a consequence of that construction certificate.

33 The competing propositions that are put to us, as we have earlier noted, is that the applicant says that the whole of the site has the benefit of a commercial use, whilst the council puts the proposition that that use is confined to the car park and the upper commercial floor pan area.

34 Although we have been given a number of authorities to consider, there are three cases that we consider are relevant to our determination in this regard. The first of them is that relied upon by the applicant, being the decision of the Court of Appeal in Ashfield Municipal Council v Armstrong [2003] NSWCA 353 (relying on the terms of the judgment of Foster AJA with whom Santow and McColl JJA agreed, and the cases of Lemworth Pty Limited v Liverpool City Council [2001] NSWCA 389, and Salvation Army v Newcastle City Council [2000] NSWLEC 36, being those relied on primarily on the matters we consider relevant by the council.

35 We turn first to the Armstrong case. It concerned a property in Ashfield upon which had been erected, in the late nineteenth century prior to the advent of development consents in the modern accepted form, a residential flat building with associated parking. The applicant in those original proceedings, in the first instance, had applied to the council for permission to reconstruct the residential flat building but to do so with basement car parking (that not having been incorporated in the nineteenth century structure). The decision of the Court of Appeal, critically in those proceedings, arises from the decision of Foster AJA in para 45 where, in summary, he indicated that, under those circumstances, the existing use could not be confined to the surface of the land and that the existing use should be construed as including the use of the land below the surface, and that as a consequence of that the existing use that arose, as we have noted, under circumstances where there were not statutory planning controls of the nature that now apply, would not act to constrain subsurface development.

36 We are not satisfied that that is the position in this case. We are satisfied that the modern statutory planning framework, within which development consents are given and are constrained or confined, are those that gave rise to the decisions of the Court of Appeal in Lemworth and the decision of this Court in Salvation Army. Each of those held, as we understand them, that a consent that was given in confined or defined terms, confined the use of the land to which that consent applied to the space, volume or area that was defined in that development consent. We are satisfied that, contra to the position advanced concerning Armstrong, we are constrained in these circumstances by the terms of the development consent that exists over the land and that the commercial use that is envisaged by that development consent is confined to the parking area and the floor pan at the upper level, and that anything else is merely ancillary to or supportive of but not permitted to be used for commercial purposes.

37 We are fortified in that regard by the fact that there would be, in this case, if it were to occur, a development consent given, a requirement for an easement over a downhill property for the purposes of draining stormwater. The position that is advanced to us on behalf of the applicant would have that easement adopting a commercial flavour or use if one were to adopt the totality, in an unconstrained and unrestricted sense, of the reasoning pressed on us arising out of Armstrong. We do not think that Armstrong can apply in the present planning circumstances except to the extremely limited extent that there may be existing developments with existing uses that pre-date the modern planning scheme.

38 As a consequence, we are satisfied that, on the statutory basis, we are unable to grant the development consent based on the non-satisfaction of the provisions of cl 42 of the Regulation in that we cannot be satisfied that the enlargement, expansion or intensification of the use is only being carried out on the land for which the existing use is permitted.

The merits

39 As we foreshadowed to the parties, if elsewhere we are determined to be wrong on that point, we should proceed to undertake a proper merit assessment of the proposal. With regard to that, we are satisfied that it is capable of approval subject to a further application to the council to regularise the retaining wall structures and the satisfaction of a comparatively wide range of deferred commencement conditions as discussed with the parties during the course of the proceedings.

40 The approach that we have taken is what I refer to as the amber light approach. That is, having asked ourselves “On the merits, is the application capable of being approved as applied for?” and concluding that it is not, we have then proceeded to address the question “Is the proposal capable of being given development consent within the scope of the present application but with amendments or changes that are defined by us with sufficient precision as to be incorporated in either plans or in conditions of consent?” We have, contrary to the position urged on us by Mr Baird, concluded that the amber light should blink toward the green rather than toward the red if we are incorrect on the position of the existing use constraint.

41 We turn to record our reasons for reaching this conclusion.

42 The issues that arose with respect to the merit assessment of the proposal came from three perspectives. Effectively they were the visual and other impacts on the Blount property and another property immediately adjacent to the Blount property and slightly further to the north-west than the Blount property; the visual impacts when travelling from west towards east up the Central Coast Highway up the hill toward the site; and finally the long view (as it was put to us) that would be obtained from places in the public domain such as a nearby communications tower area where, we assume from the nature of the evidence given, there is some form of public access and/or lookout. We are of the view that that communications tower was at least of the order of a kilometre distant to the north-north-west of the site.

43 We turn first to the question of visual impact on the Blount property.

44 The first point that we note is that there is presently, but proposed to be removed, a very large mound of spoil that was derived from the construction of the present structure, that spoil being located generally to the north-east of the present structure. There is a significant infestation of noxious weeds, as we earlier noted, between the retaining wall and the boundary with the Blount property, which, on our observation, up-slope from the Blount property, provides a considerable element (and indeed quite a significant element) of the visual shielding of the present structure. However, it was Mr Newbold’s evidence, which we accept from our understanding of what we saw during the course of the site inspection, that if there is slightly more intensive landscaping than had originally been envisaged; a removal of the weeds; and a planting of the landscaping prior to any of the additional works, that the visual impact is capable of being rendered acceptable from the Blount property.

45 There are two significant structural elements that need to be taken into account in this regard. The first is the proposal for a 1.8 metre high acoustic shielding barrier on top of the retaining wall. It was Mr Newbold’s evidence, agreed with by Mr Rollinson, that if that structure were to be of a wooden nature capable of greying with age, that that would be acceptable in the landscaping context rather than the presently proposed Colorbond metal fence atop that wall.

46 We earlier noted the fact that there were a number of black acoustic shields on the upper level balcony providing acoustic shielding to the Blount property from the air conditioning units that presently serve the commercial development. We note here, expressly, that those air conditioning units are not installed at the location approved by the development consent given by the council and nor is there any modification apparent (on our examination of them) in the construction certificate plans for the present consent that would provide any basis for having the air conditioning plant located where it is presently located. The consequence of that and what Mr Newbold put, and which we accept from our observation during the course of the site view, is that the black acoustic shielding panels necessary for the air conditioning units in their present location would contribute to making the proposed development visually unacceptable from the Blount residence but, if removed, would render it acceptable (but only just so).

47 It is therefore our view that, in addition to a deferred commencement condition that would require the removal of the mound of spoil and the planting of the landscaping to the north of the retaining wall, there would also be the necessity for a deferred commencement condition that required the relocation of the air conditioning units to the place where they are approved in the present development consent, which would also require additional acoustic shielding as required by that consent (but for the property to the east), and the removal of the black acoustic shields that would otherwise be visually unacceptable from the Blount residence.

48 We are satisfied that if those two deferred commencement conditions were to be required, together with the requirement (as part of that deferred commencement condition) that the wooden acoustic barrier be built as part of those prerequisite works, that that would render the visual impact on the Blount property acceptable provided that there were also conditions, as discussed, that:

the colorbond or other metallic treatment to the various elements of the storage facility would be of a non-reflective neutral colour;
there would be lighting restrictions so that there was no light spill impact onto the Blount property; and
some form of appropriate shielding installed, whether it were to be the wooden or metal kind, to the stairs and balcony leading from the ground level to the upper level of the storage area to provide further protections to the Blount property.

49 Next we turn to the question of the retaining wall. We are of the view that it would be necessary, if we be wrong about the use matter, for the proceedings to be adjourned if there were to be a remitter to us to enable the applicant to apply to the council and, if necessary, to the Court for regularisation of the present retaining wall structure.

50 We would not, in our view, be able to issue orders that relied on utilisation of that structure for something that is undoubtedly of structural significance to the proposed development without satisfaction that it was of some statutorily valid foundation as well as a structurally valid foundation for those uses.

51 With respect to the mezzanine, we are of the view that, as we have earlier expressed it, we are obliged to conclude that that is part of the approved structures but not use, and that, as a consequence, it is capable of being used for the purposes that are proposed in this application, subject to any proceedings in any other part of this Court or elsewhere that might reach some differing conclusion about its status. However, we would require, as a deferred commencement condition, a structural engineering certificate - to the council’s satisfaction - that that slab was sufficiently structurally sound to support the very large number of storage units proposed for it, each one of which could store a considerable weight of material.

52 The next matter that we turn to is the question of the view from the west as approaching up the hill on the Central Coast Highway. The present development consent requires the removal of the built form on Lot 11 and some landscaping on that lot. It was Mr Astill’s information to us (on instructions from the company’s representative) that it was intended to demolish that structure and undertake the landscaping commencing in some three months time.

53 If there were to be a consent granted for the present application, we are satisfied that it should be subject to a deferred commencement condition that required that structure to be demolished; the landscaping required by the present consent installed; and the additional landscaping agreed to by Mr Rollinson and Mr Newbold also installed. That is necessary, in our view, to provide a precautionary visual shielding of the western of the two ramps.

54 There are two other matters that arise. One of them concerns what was described as the long view. This is the only matter where, on the evidence that we have from the council, there is a continuing and unresolvable concern expressed in the context of the objectives of the LEP and of the Development Control Plan to which we have earlier referred. It was Mr Singh’s opinion that, on balance, on the long view, that which is proposed to replace that which is approved, is contrary to the objectives of the LEP and the Development Control Plan.

55 We are unable to concur in this opinion. The present approved proposal has the whole of the apertures at the northern face of the site below the floor pan of the commercial development to be enclosed by metal frames supporting black shade cloth across the whole of those areas. The shade cloth would be, to the extent it was capable of being viewed on the long view, a discordant element, in our assessment, in the landscape towards the ridge top upon which the structure is erected. That would be replaced, in this proposal, with non-reflective neutral coloured metal and modestly more landscaping than that which might have otherwise arisen from the existing development consent.

56 We are satisfied that the impact would be neutral and might even, on the long view, constitute an infinitesimally modest increment of improvement in the visual perception of the development. It is certainly no basis upon which, in our opinion, we could refuse the development if we were to be required to issue a development consent for it. We note (and are fortified by) the fact that Mr Newbold in his evidence on behalf of the council, as we understood him, concurred in that opinion.

57 The final matter that we need deal with is the question of acoustic conditions and there is one further matter arising from Mr Blount’s evidence that we think would warrant incorporation in a condition. We do not anticipate that it would be controversial but we merely note that Mr Blount drew to our attention that the proposed western and downward ramp would end in the vicinity of its landing point on the proposed parking area close to the roof of what he described, understandably as a concerned parent, his son’s classroom in the adjacent Central Coast Grammar School to the west, and we think it would be prudent to incorporate explicitly in the conditions of consent, if there is to be one, a requirement that there be appropriate Armaguard railing to prevent vehicle accidents and vehicle drop-offs from the ramp.

58 One condition remained in contention between the parties if there was to be a development consent. It is one that was derived from the joint expert evidence in written form given by Dr Tonin (on behalf of the council) and Mr Atkins (on behalf of the applicant) on acoustic matters and compliance. We do not need to recite the terms of the proposed condition, condition 6.8, simply to say this, that an appropriate version of that condition, in our view, as was flagged might be the case to the parties, would be one which operated on a basis whereby:

the independent acoustic expert to undertake the check testing would be engaged by the council at the applicant’s expense;
the testing would be undertaken without notice to the owner or occupier or any other person associated with the commercial activities on the site;
the report of that expert would be required to detail not only any non-compliances or unsatisfactory acoustic outcome but what was required to be done to rectify those unsatisfactory matters, and particularly in the context of the matter contested between the parties, what, if any (ranging from nothing through to the totality), of the approved activities needed to cease if those remedial measures were not undertaken within the reasonable time specified by that expert.

59 We do not consider that the totality of the activities on the site would necessarily need to close if those circumstances were to arise, merely the cessation of those activities identified as necessary for that purpose by the acoustic expert until such remedial works as were specified were carried out.

60 We have provided this merit assessment on the contingency that if we are wrong on the other matter, the matter should be able to be dealt with between the parties by bringing orders back to us (if we are found to be incorrect and there is a remitter), that being consistent with the objectives of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the real issues in dispute between the parties.

61 As a consequence of all of the foregoing, the orders of the Court are that:

1. The appeal is dismissed.
2. Development application 35344 of 2008 for the establishment of a commercial storage facility at 373-375 the Central Coast Highway, Erina Heights, is determined by the refusal of development consent.
3. The exhibits, other than Exhibits A, E, 4 and 11, are returned.

_____________________________
Tim Moore
Senior Commissioner of the Court

______________________________

Sue Morris

Commissioner of the Court

22/09/2010 - Incorrect legislation on front cover; incorrect citation - Paragraph(s) Front cover; paragraph 34