Bush v Marrickville Council

[2007] NSWLEC 310

Land and Environment Court

of New South Wales

CITATION:

Bush v Marrickville Council [2007] NSWLEC 310

PARTIES:

APPLICANT
John Bush

RESPONDENT
Marrickville Council

FILE NUMBER(S):

11282 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Modification application, conditions of consent, hours of operation, noise, traffic, parking, residential amenity in an industrial area.

LEGISLATION CITED:

Environmental Planning and Assessment Regulation 1994
Marrickville Local Environmental Plan 2001

DATES OF HEARING:

7/5/2007 and 8/5/2007

EX TEMPORE JUDGMENT DATE:

8 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr M. Wright, barrister
instructed by Mr G. Christmas
of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 May 2007

11282 of 2006 John Bush v Marrickville Council

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

JUDGMENT

1 On 4 October 2006, the Marrickville Council granted conditional Development Consent No 200600347 for the carrying out of alterations to the mainly single, part two storey premises at 42 Hutchinson Street, St Peters and the use of the building for bread manufacture. The premises is now being used for this purpose.

2 The consent is subject to a number of conditions including condition 12 that limits the number of employees to eight persons. Condition 13 limits the hours of operation to 7 am to 6 pm Mondays to Fridays, 7 am to 5 pm on Saturdays and 2 pm to 6 pm on Sundays with no work permitted on public holidays. Condition 13 also prevents delivery vehicles entering or leaving the site prior to 7 am Mondays to Saturdays and that such vehicles are not permitted to park on adjoining streets prior to such hours. It also restricts the servicing of the site by garbage vehicles to the approved hours of operation.

3 The applicant has now lodged a modification application under s 96(2) of the Environmental Planning and Assessment Act1979 to modify conditions 12 and 13 of the consent.

4 Condition 12 is now sought to be modified so as to allow not more than fifteen persons being employed in connection with the use of the premises with a maximum of 10 employees permitted to be on the premises at any one time. This amended condition is not opposed by the respondent.

5 The applicant has also offered in proposed conditions 12(a) and 12(b) a regime to enable any complaints about the use of the site to be communicated to the applicant, registered and dealt with. The complaints register is to be made available to the council upon request.

6 The now proposed condition 13(i) is for the hours of operation to be extended to the hours of 3 am to 9 pm Mondays to Fridays inclusive, 8 am to 4 pm on Saturdays and 2 pm to 6 pm on Sundays. These extended hours comprise the principal objection of the respondent and also the objectors who reside nearby.

7 The other parts of condition 13 deal with the provision of a plan of management which is to effectively become part of the consent, the operation times of garbage vehicles, the arrival and departure of staff, the operation, use and acoustic performance of the roller doors and the parking of staff vehicles in nearby public streets.

8 The plan of management provides for the departure from the loading docks of two pre-loaded delivery vehicles after 3 am and before 7 am Mondays to Fridays. During this same period there will be up to two bakers and two assistants arriving at and working on the premises. Also, two smaller delivery vans will arrive at the premises at 7 am to be loaded in the loading docks and then depart the premises.

9 The site comprises Lot 12 in DP 650453. It has a splayed frontage of about 10 m to Hutchinson Street and an area of about 405 sq m. This site is fully occupied by the subject building which has two loading docks with access off Hutchinson Street.

10 Hutchinson Street is a one-way street that contains a mixture of industrial uses and mainly towards the south-west end, dwelling houses. The close - by Lackey and Applebee Streets are predominantly developed with older style dwelling houses. These properties generally have no off street parking although some newer industrial developments do have parking.

11 The site and surrounding areas including Lackey and Applebee Streets are situated in the 4(a) General Industrial Zone under Marrickville Local Environmental Plan 2001. In this zone light industrial development as is proposed is permissible with development consent. I understand that this zone remains unchanged from the previously applicable local environmental plan.

12 The objectives of the 4(a) zone provide for the identification of areas suitable for industrial and warehousing activities as well as permitting a range of support and ancillary uses.

13 The modification application was advertised and 14 objections were received mainly from residents residing in Hutchinson Street and Lackey Street. These objections raised concerns generally involving the following:

• Traffic congestion, illegal parking and absence of off street parking in the context of the present on street parking deficiency,
• Loading and unloading of vans in the street,
• Noise disturbance during the early hours of the morning, especially from employees’ vehicles and delivery vehicles, noise and odour generally.
• Impacts will not be able to be managed and the plan of management cannot be relied on.
• The proposed early opening is only to enable more bread to be baked.

14 When the hearing began on site five of the resident objections explained these concerns in detail, particularly as to how the early morning operating hours would adversely affect their amenity, notwithstanding the other existing industrial activities in the street. In addition, the owners of two nearby industrial premises gave evidence explaining that they had no objection to the extended hours, one explaining some of the difficulties involved in unloading delivery vehicles in the street. It was also explained that employees in this area can come to work using public transport including the close - by St Peters railway station.

15 The Court was assisted by the joint statement of evidence provided by the planning experts, Ms A McCabe for the applicant and Mr J Erken for the respondent. Evidence was also provided by Mr S Cooper, an acoustic engineer, on behalf of the applicant. In his report Mr Cooper concluded that with respect to the plant and equipment to be operated by the bakery prior to 7 am there would be no acoustic impact on nearby residence. In relation to the delivery vans that will leave the premises prior to 7 am he carried out measurements of these activities at the nearest residential boundaries. Subject to maintenance/adjustments to the roller shutter doors the noise generated by these vans leaving the premises would comply with the relevant EPA noise criteria. In this context it is relevant to note that the departing vans would not pass in front of any dwelling house in Hutchinson Street.

16 Mr Erken in his oral evidence explained that his central concern involved the proposed activities on the site between 3 am and 7 am, not being concerned about the proposed industrial activities at other times. He reached this conclusion taking into account the zoning of the land. More particularly, whilst he was not concerned about impacts emanating from within the premises he was concerned about the impacts associated with the vehicles coming to and leaving the premises. During the early morning period the business is likely to involve the utilisation of four employees’ vehicles plus the two larger delivery vans and their drivers’ own cars. In addition to the amenity impacts caused by these vehicles, mainly in terms of noise, there will also be an impact on the availability of car parking in the streets.

17 As a consequence of these impacts and council’s consistent rejection of late night or very early morning industrial activities in the vicinity of residential development it was Mr Erken’s opinion that the existing approved hours of operation should be maintained, including the absence of on site parking.

18 Notwithstanding that there are some 44 nearby dwellings in the 4(a) zone (that apparently have existing use rights) the purpose of the zoning of the land must attract significant weight. The 4(a) zone is the industrial zone in Marrickville that provides for the heaviest form of industry in the municipality and industrial uses can be expected to take precedence over existing non-industrial uses.

19 In this context neither the LEP nor the council’s Industrial DCP make any provision for the retention or protection of existing residential development in the zone or for new development to be modified in response to it. Moreover, as submitted on behalf of the applicant, residential uses should not limit the ability of the zone to accommodate the wide range of permissible industrial uses, nor should such uses unreasonably limit the hours of operation of industrial uses that need and wish to operate beyond normal business hours. Plainly, this is the appropriate zone in Marrickville for such activities.

20 Despite this, I agree with Ms McCabe that the existing residential uses should not be disregarded and that their amenity is a relevant matter for consideration, although such amenity cannot be expected to be of the same quality that might otherwise be expected in a residential zone. Also, the general absence of off street parking is a fact of life in this locality and competition for on street parking spaces is to be expected. As a consequence and as Ms McCabe suggests some restrictions should be imposed to ensure that the nearby residences are not unreasonably affected. These restrictions are provided for in the now amended conditions of consent and the plan of management which she supports.

21 It was submitted on behalf of the respondent that approval of the hours sought with the consequential adverse amenity impact would set an inappropriate precedent that would in turn lead to further diminution of the amenity of the nearby dwellings. These dwellings can be reasonably taken into account as a constraint on industrial development in this street and the proposal fails to do this. Moreover, the plan of management and the conditions of consent requiring that employees’ vehicles not be parked in the predominantly residential part of this street cannot be relied upon.

22 I recognise that in circumstances like those applying here where there is residential development in the vicinity of industrial development that council usually imposes operating hours beginning at 7 am notwithstanding that there is no development control plan or code to this effect.

23 However, I have not been persuaded that the application should be refused on this basis. It should instead be determined on its own merits and if found to be satisfactory can be approved.

24 In this regard I have been persuaded by the evidence marshalled on behalf of the applicant to the effect that any impacts on the nearby dwelling houses will, in the circumstances of the industrial zone, be within reason. I do not accept that any issue of precedent arises, this matter having been decided on its own facts and merits.

25 The conditions of consent now either agreed to by the applicant or, indeed, proposed by it, together with the plan of management which provide for the method of dealing with possible complaints and the arrangements for the parking of vehicles and the limited number of vehicle movements between 3 am and 7 am are important considerations that support this conclusion. As for the plan of management itself, I accept that plans of management are now well accepted as appropriate tools for the management of impacts that might result from otherwise incompatible land uses.

26 Therefore, the orders of the court will be:

(1) The appeal is upheld.
(2) Development consent No 200600347 for alterations to the existing premises at 42 Hutchinson Street, St Peters and its use for bread manufacture granted by the Marrickville Council on 4 October 2006 is amended in accordance with what is now Exhibit F and will become Annexure A.
(3) Exhibits F and G are returned.

___________________

T A Bly
Commissioner of the Court
dlc