Brown Bros Waste Contractors Pty Limited v Pittwater Council

[2009] NSWLEC 1295

Land and Environment Court

of New South Wales

CITATION:

Brown Bros Waste Contractors Pty Limited v Pittwater Council [2009] NSWLEC 1295

PARTIES:

APPLICANT
Brown Bros Waste Contractors Pty Limited

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10206 of 2009

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- waste handling and recycling facility,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan

DATES OF HEARING:

1 July 2009 and 2 July 2009

EX TEMPORE JUDGMENT DATE:

2 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay (barrister)
SOLICITORS
Wilshire Webb Staunton Beattie

RESPONDENT
Mr T Howard (barrister)
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 July 2009

10206 of 2009 Brown Bros Waste Contractors Pty Limited v Pittwater Council

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

JUDGMENT

1 This appeal relates to a development application for the construction of an industrial-type building at the rear of 6 Polo Avenue, Mona Vale and for the use of this building and the adjacent part of the site for a waste handling and recycling facility. More particularly, the proposal involves a fleet of trucks that deliver and collect different sized skips/bins to and from various sites to facilitate the recycling and disposal of waste including demolition, excavation and general waste materials. Between 20 and 40 loads of waste will be processed each day. Hours of operation are to be Monday to Friday 6am to 6pm and Saturday 6am to 2pm.

2 The activities are particularised in the applicant’s “Operational and Environmental Management Plan and Procedures” and the site and building plans attached to the application, which became Exhibits C and 1.

3 The rectangular shaped site has an area of 2,977 square metres and a frontage of 30.5 metres to Polo Avenue. The front portion of the site is occupied with two industrial units that are used for automotive repair purposes. The rear open portion of the site has in the past been utilised for waste handling and recycling. The locality mainly comprises a range of industrial, warehousing and retail activities.

4 The site is zoned 4(b)(1) light industrial under Pittwater Local Environmental Plan 1993. The proposal is designated development pursuant to the Environmental Planning and Assessment Act 1979 and is permissible with development consent in the light industrial zone. Also applicable is Pittwater 21 Development Control Plan.

5 The application was advertised between June and July 2008 and the council received four submissions during this period. These submissions express concerns including impacts on the drain/creek that flows through the site; dust, noise vibration and odour associated with the recycling and other activities; sediment run-off.

6 When the hearing began on site I heard from a number of neighbouring property owners/occupiers, particularly the neighbouring car repair premises where cars are re-sprayed. The particular concerns include noise and vibration impacts from the moving of skips and dust impacts on recently re-sprayed cars. The written submissions were referred to the Department of Planning in accordance with s 80(9)(b) of the Environmental Planning and Assessment Act 1979, but no response has been received.

7 On 11 December 2008 the council’s development unit considered the application and formulated draft reasons for refusal that it referred to the applicant. These reasons relate to the existing water channel on the site, site contamination, the vehicle wash bay, water pollution measures, environmental performance monitoring including vibration and construction management. Following consideration of further materials from the applicant, the Council’s Development Unit decided that the application should be refused essentially for the reason that the site is too small to satisfactorily contain the proposed use.

8 On 31 March 2009 the applicant lodged the appeal against council’s deemed refusal of the application. According to the Statement of Facts and Contentions the council’s contentions reveal that the bases for the refusal of the application are, leaving aside the particulars: the site is not sufficiently large to accommodate both existing and proposed uses of the land; and it has not been demonstrated that the environmental impacts arising from the proposed use of the rear of the site can be adequately managed. It is also contended that these matters cannot be resolved by conditions of consent.

9 During the hearing, however, the council agreed that subject to meeting reasonable manoeuvrability, car parking and environmental impact requirements it had no fundamental opposition to the proposal.

10 Whilst I did not hear from any experts during the hearing, it is relevant that I note the contribution made in the form of written reports and “behind the scenes” discussions of the following experts: on behalf of the council, Ms G Hay, (town planning), Mr D Gamble, (operations management), and Mr P Davies, (traffic engineering) and on behalf of the applicant, Mr L Winnicott, (town planning), Mr P Clark, (operations management), and Mr R Dowset, (traffic engineering).

11 As a result of the pre-trial process including the preparation of joint reports, the applicant amended its management plan and its site plan, Exhibit B, that depicts changes to the proposal that are said to be able to be imposed by way of conditions of consent. That revised site plan improved the vehicle manoeuvring arrangements for the site, but reduced the number or car parking spaces from 22 to 16. This resulted in the council legitimately raising concerns that there would be insufficient car parking available for the three separate land uses on the site.

12 The various consents for the two existing land uses on the front portion of the site were examined and in my opinion they are inconclusive as to the number of car spaces that these consents require. Even to the extent that the car parking and landscaping requirements of these consents could be understood, the present arrangements on the site do not reflect them.

13 Plainly, this application provides an opportunity to rectify what I consider to be an unsatisfactory situation and during the hearing I suggested that this opportunity be taken.

14 The applicant has now provided an amended site plan that relocates a bin storage area and provides a total of 20 car parking spaces. This plan has now been considered and subject to appropriate conditions of consent and amendments to the management plan the council says that there is now no reason to oppose the application. Further discussions have resulted in an agreed set of conditions of consent including the adopted (by reference) Operational and Environmental Management Plan and Procedures document.

15 As I have indicated, when on site I heard from a number of neighbouring property owners and occupiers. Those concerns are, to my satisfaction addressed by the particular conditions of consent and the management plan, such that I now see no reason why the amended proposal should not be approved.

16 In the circumstances, there now being no matters in dispute between the parties, I have decided that the appeal can be upheld and development consent granted subject to the agreed conditions.

17 The orders of the Court will therefore be that:

1. The appeal is upheld.
2. The development application for the construction of an industrial type building at the rear of 6 Polo Avenue, Mona Vale and for the use of this building and the adjacent part of the site for a waste handling and recycling facility is determined by the granting of development consent subject to the conditions in Annexure A hereto (Exhibit 10) including the Operational and Environmental Management Plan and Procedures (Exhibit C).
3. Exhibits 10, C, D, E and F are retained.

___________________

T A Bly
Commissioner of the Court
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