Carlysle-Sainty v Coffs Harbour City Council (No.2)

[2015] NSWLEC 1218

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carlysle-Sainty v Coffs Harbour City Council (No.2) [2015] NSWLEC 1218
Hearing dates:	27 May 2015
Decision date:	19 June 2015
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. The application to amend deferred commencement conditions of Consent Number 955/12DA for an Animal Establishment (Dog Boarding Facility) at 81D Old Bucca Road, Moonee Beach is approved and development consent is granted subject to the conditions of consent in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B.
Catchwords:	MODIFICATION: appeal against review of conditions of consent for dog boarding facility – further information provided to address concerns over dust generation – no contested issues – residents maintain objection to dust generation - terms of some conditions in dispute
Category:	Principal judgment
Parties:	Mr N Eastman, barrister (Applicants) Gadens Ms J Hewitt, solicitor (Respondent) HWL Ebsworth
Representation:	Mr N Eastman, barrister (Applicants) Gadens Ms J Hewitt, solicitor (Respondent) HWL Ebsworth
File Number(s):	10736 of 2014
Publication restriction:	No

JUDGMENT

1. COMMISSIONER: This appeal relates to the refusal by Coffs Harbour City Council to amend deferred commencement conditions included in Consent Number 955/12DA for an Animal Establishment (Dog Boarding Facility) at 81D Old Bucca Road, Moonee Beach (the site). The site is located approximately 500m from Old Bucca Road and access is gained via private road as a right-of-carriageway through 3 properties from Old Bucca Road. The right-of-carriageway is subject to an Arbitral Award which provides terms of agreement for maintenance of the right-of-carriageway between all the affected landholders.

2. The site slopes down to the north east with a fall of some 20 m over the length of the property. The site has an area of 6 hectares with a western boundary of some 265 m, an eastern boundary of 179 m and an irregular boundary on the north and south with an average width of approximately 250 m. Approximately 30% of the northern end of the site contains forest vegetation while the remainder of the area is cleared.

The disputed conditions

3. The deferred commencement conditions of consent, in dispute, are:

A. This consent does not operate until such time as the following upgrade works to the right-of- carriageway have been completed:

(a) installation of passing bays and associated signage;

(b) installation of flood depth markers;

(c) sealing;

(d) stormwater drainage works;

(e) intersection widening.

The above works shall be provided to serve the development with the works conforming with the standards and requirements set out in Council's Development Design and Construction specifications and relevant policies (Water Sensitive Urban Design).

The above works require separate development consent from Council and the issue of a Civil Works Construction Certificate.

Note:

(1)Traffic generated by the proposed development is assessed to be considerably higher than that proposed in the submitted Statement of Environmental Effects.

(2) The right-of-carriageway surface is to be sealed from the intersection with Old Bucca Road for a distance of 330m AND for further 200m southwards of chainage 480m to mitigate dust problems from the increased traffic generated by the proposed development.

(3)Passing bays are to be provided on the right-of-carriageway at no more than 100m apart and within safe sight of one another. In relation to the required passing at the intersection with Old Bucca Road refer to note 6 below - intersection upgrade. The passing bays are to be signposted. NOTE: Utilising the existing driveways as passing bays would not fulfil this function because they are at irregular intervals, are not all at locations that have safe sight distances and are not configured to suit safe pulling over and safe passing.

(4) Where existing driveways onto the access way are located where sight distances may be inadequate for the more frequent used access way and where the sealing of the road may encourage higher traffic speeds than currently experienced under existing conditions, there is a requirement to signpost "driveways ahead" appropriately to maintain the existing level of safety in use of the driveways by owners.

(5) Flood Depth Markers are to be provided on the right-of-carriageway adjacent to locations that are subject to flood inundation. This occurs between approximately 340m and 440m from Old Bucca Road. Depth markers are be required at the low spots in the road. NOTE: The proposed location for a depth marker (at about 620m from Old Bucca Road) is not a suitable location.

(6) Access to the development from the intersection of Old Bucca Road and the right-of-carriageway is required to be widened to ensure that the intersection provides safe passing of vehicles leaving Old Bucca Road into the right-of-carriageway to overcome any sight distance problems at that intersection.

B. In the event that the requirements of the deferred matter listed in "A", above, are to completed within three (3) years from the date of this consent then the consent shall lapse and become inoperative.

C. Upon the completion of the requirements set out in the deferred matter listed in "A", above, within a period of three (3) years from the date of this consent, then this consent becomes operative subject to the following conditions.

4. The modification applicant originally sought modification of deferred commencement condition A(c); sealing of the right-of-carriageway. This was rejected by the council on 12 December 2014. On 9 January 2015, the applicants lodged an application to review the council’s decision of 12 December 2014 that included the deletion of deferred commencement conditions A(c); sealing of the right-of-carriageway and A(e); intersection widening. This application was refused by the council on 14 March 2015.

5. Prior to the commencement of the hearing, further discussions took place between the applicant and the council that resulted in concessions by the council on deferred commencement condition A(a) to A(e)

Deferred commencement condition A(a)

6. The council agreed that the recent road works completed under the Arbitral Award are sufficient to allow for passing of vehicles, and the condition has been complied with. The council also agrees with the applicants' proposal to install "Concealed Driveways Ahead" warning signs at chainage 25m and 345m as marked on drawing 13023-5. The council accepts that this can be dealt with by a condition of consent, to be satisfied prior to issue of an Occupation Certificate.

7. There was however, disagreement on the condition addressing "Concealed Driveways Ahead" warning signs, which is addressed later in the judgment.

Deferred commencement conditions A(b) and A(d)

8. The council states that it has received no information to confirm that the right-of-carriageway is no longer flood prone by virtue of the drainage works completed under the Arbitral Award, and that the requirement for installation of flood depth markers remains necessary. The council accepts that this can be dealt with by a condition of consent, to be satisfied prior to issue of an Occupation Certificate.

9. There was however, disagreement on the terms of the condition addressing flood depth markers, which is addressed later in the judgment.

10. The council accepts that the recent stormwater drainage works completed under the Arbitral Award are sufficient, and the deferred commencement condition has been complied with.

Deferred commencement condition A(c)

11. The council originally maintained that traffic generation from the applicants' development will result in increased dust nuisance to adjoining landowners and the bitumen sealing of the right of carriageway is a reasonable means to mitigate these dust impacts. The council did not believe that the alternative dust suppression measures proposed by the applicants will be an effective mitigation measure.

12. Prior to the hearing, the applicant provided an Air Quality Report by Ms Judith Cox, an air quality consultant. On reviewing this document, the council did not press the imposition of the part bitumen sealing of the right of carriageway on the basis that Ms Cox concluded that “the proposed vehicle activity on the right-of-carriageway as proposed by the proponent will not result in adverse air quality impacts at the local residences”.

13. There was however, disagreement on the condition addressing dust, which is addressed later in the judgment.

Deferred commencement condition A(e)

14. The council accepts that the recent road works completed under the Arbitral Award and the submission of additional information, satisfy the intent of the condition in respect to the intersection widening.

Resident concerns

15. A number of residents who owned land, the subject of the right-of-carriageway and adjoining the right-of-carriageway provided evidence on the site inspection. Those matters relevant to the appeal related largely to the potential traffic generation from the applicants' development and the resultant increase in dust nuisance.

16. I agree with the council that there is no basis to press their previous concerns over dust, given the conclusions in Ms Coxs’ report and the absence of any contrary expert evidence. It is however worth repeating the basis for Ms Coxs’ conclusions. First, the assessment was carried out in accordance with the NSW EPA (2005) Approved Methods for the Modelling and Assessment of Air Pollutants in NSW, August 2005, including the use of local meteorological data and established standards. Second, the assessment criteria addresses both health based criteria and also amenity based criteria and was found to be well below the relevant criteria. Third, all relevant residences in the vicinity of the right-of-carriageway were used in the assessment.

17. Given the thorough assessment in Ms Coxs’ report, I accept that the proposed use of the right-of-carriageway will not generate sufficient dust to warrant the refusal of the application. In coming to this conclusion, I accept that dust is likely to be generated by vehicles using the right-of-carriageway by vehicles to gain access to the site (as well as other vehicles using the right-of-carriageway) but not the extent that it would cause unacceptable health or amenity impacts on local residents. Similarly, the 40 kph speed used in the dust modelling may be exceeded on occasions however the alignment and condition of the right-of-carriageway, when observed on the site inspection, supports the use of 40 kph for the dust modelling.

Conditions of consent.

Condition 22A

18. The council seeks the following condition for the provision of flood depth markers:

22A. Flood depth markers are to be installed on the right-of-carriageway adjacent to locations that are subject to flood inundation between approximately 340m and 440m from Old Bucca Road prior to the issue of an Occupation Certificate.

19. While the applicant accepts the council’s condition, it proposes the following additional words, given the ability of an owner to deny approval of the signs on their land (but within the right-of-carriageway) and consequently frustrate the compliance of all conditions of consent.

• Prior to installing the flood depth markers, the applicant must request, in writing, the landowner's consent to the installation of the marker on their property.

• If written consent is not received from the landowner within 14 days of the written request, the applicant will not be required to install flood depth markers on the landowner's property.

20. While the imposition of the applicant’s additional words to the condition would not normally be necessary, the need to gain approval because the signs would be located on private land but within the right-of-carriageway and the negative responses from local residents to the installation of the signs on the site inspection necessitates the additional words proposed by the applicant I agree that the applicant’s additional words should be included in condition 22A.

Condition 22B

21. The council seeks the following condition for the provision of concealed driveway signs:

22B. Concealed driveway signs are to be installed at approximately 25m and 345m from Old Bucca Road prior to the issue of an Occupation Certificate.

22. As with the flood depth markers, the applicant accepts the council’s condition, but proposes the following additional words, given the ability of an owner to deny approval of the signs on their land (but within the right-of-carriageway) and consequently frustrate the compliance with all conditions of consent.

•Prior to installing the concealed driveway signs, the applicant must request, in writing, the landowner's consent to the installation of the sign on their property.

• If written consent is not received from the landowner within 14 days of the written request, the applicant will not be required to install concealed driveway signs on the landowner's property.

23. For the same treasons as a set out in par 20, I agree that the applicant’s additional words should be included in condition 22B.

Conditions 23A and 23B

24. The council seeks the following condition for the provision of dust mitigation on the right-of-carriageway:

23A. There are to be no more than a total of eighteen (18) return vehicle trips (36 movements along the right-of-carriageway) per day for the dropping off and picking up of dogs in association with the operation of the dog boarding facility.

23B. To determine compliance with the above condition, records of all dogs admitted to and discharged from the facility are to be kept. These records are to include the time and dates of admission and discharge and contact details of each customer. These records are to be kept for at least 3 years and are to be made available to Coffs Harbour City Council officers for inspection at their request.

25. The applicant seeks the deletion of the conditions on the basis that Ms Coxs’ report does not identify any concerns over dust. Additionally, the administrative work to satisfy the conditions is excessive and unnecessary given the unchallenged conclusions of Ms Cox.

26. I accept the applicant’s submissions on these conditions. The limitation on the number of return vehicle trips per day (condition 23A) falls within condition 4(1) where development is required to be undertaken in accordance with the Statement of Environmental Effects prepared by Geoff Smyth Planning and dated June 2012.

Orders

27. The orders of the Court are:

1. The appeal is upheld.

2. The application to amend deferred commencement conditions of Consent Number 955/12DA for an Animal Establishment (Dog Boarding Facility) at 81D Old Bucca Road, Moonee Beach is approved and development consent is granted, subject to the conditions of consent in Annexure A.

3. The exhibits are returned with the exception of exhibits 1, A and B.

_______________

G T Brown

Commissioner of the Court

Decision last updated: 19 June 2015