Concrete Recyclers (Group) Pty Ltd v Parramatta City Council

Case •

[2005] NSWLEC 758

•

14 December 2005

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Concrete Recyclers (Group) Pty Ltd  v  Parramatta City Council [2005]  NSWLEC 758

PARTIES:
APPLICANT
Concrete Recyclers (Group) Pty Ltd
RESPONDENT
Parramatta City Council

CASE NUMBER:       11241  of        2005

CATCH WORDS:      Development Consent

LEGISLATION CITED:

CORAM:        Hussey C

DATES OF HEARING:          25/08/2005 and 14/12/2005

EX TEMPORE DATE:           14/12/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr D Wilson, barrister
SOLICITORS
Mark McDonald

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 December 2005

11241 of 2004  Concrete Recyclers (Group) Pty Ltd  v  Paramatta City Council

JUDGMENT

Background

  1. This appeal was lodged following council’s refusal of a s 96 Modification application for an existing concrete crushing and recycling facility at 14 Thackeray Street, Camellia. 

  2. The original consent for the development was granted on 3 June 1997 and the subsequent modification was in respect of the following conditions:

    26. The hours of operation for the use of the premises is restricted to 6.00 a.m. to 6.00 p.m. Monday to Friday and 7.00 a.m. to 4.00 p.m. Saturday with a further restriction on the operation of any machinery or trucks on the site prior to 7.30 a.m. Monday to Saturday.

    Reason:To ensure no detrimental affect [sic] on to adjoining property owners.

    28.The height of any proposed stockpiles of either uncrushed material or finished product material, shall not exceed five (5) metres.

    Reason:To ensure that the proposal does not have an adverse visual effect on the area.

  3. The initial modification application proposed to:

1.Amend Condition No. 26 to retain the approved hours of operation for the use of the crusher on the site and to allow trucks and the front-end loader to operate from 6.00 a.m.

2.Amend Condition No. 28 to increase the permitted height of stockpiles of both uncrushed and finished produce material from five (5) to ten (10) metres.

  1. For the appeal a number of issues were identified and these mainly relate to potential noise disamenity, dust emissions, visual impacts and matters raised by the objectors.  In response to these issues various planning reports were presented and the parties agreed to the appointment of:

  • Mr J. O’Grady as the Court-appointed expert on visual impacts, and

  • Mr M. Davies as the Court-appointed expert on dust emissions.

  1. Following consideration of the experts’ reports, the parties agreed to the modification of Condition 26 to basically retain the original hours of operation with the proviso that:

    "the crushing equipment and the use of excavator(s) on top of the stockpile(s) are not permitted prior to 7 a.m. Monday to Saturday."

  2. This agreement arose principally from the assessment of Renzo Tonin & Associates Pty Ltd, acoustic consultants who reviewed the applicant's noise assessment methodology and reports.  This independent review concluded that the noise impact from the site would comply with the relevant criteria between 6 a.m. and 7 a.m. subject to certain conditions being imposed.  These conditions include:

    the use of crushing equipment and use of an excavator on top of the stockpile is not permitted prior to 7       a.m.

    loading of trucks only is to occur between the hours of 6 a.m. to 7 a.m. with this activity limited to the movement of trucks on-site, and use of front-end loader,

    all permanent plant on the site to be fitted with reverse alarms that adjust to suit the ambient noise level on-site.  Trucks driving on-site should do so in a forward motion only, and should not be required to reverse.

  3. Having considered the evidence on this issue and undertaken a view, it seems to me that this agreed modification is reasonable in the circumstances of this case, taking into account the context of operations in this intensive industrial area.  As there was no compelling evidence against this modification, I consider it should be allowed, on the basis of the acoustic consultant’s conclusions.

  1. The remaining issues concern potential dust emissions from the increased height of the stockpiled material and consequential adverse visual impact from neighbouring properties.  This concern was expressed by a number of the objectors whose industrial properties are located on the northern side of the Parramatta River.  However in response to these concerns the application was further modified so that the increased height in the stockpiles was to be 8 m.

  1. The dust emission issue was assessed by Mr M. Davies, an atmospheric scientist.  From his assessment of the relevant information, including the current Air Quality Management Plan (AQMP), he recommended the following additional controls be implemented:

  • automation of the water spray nozzles;

  • dust suppression in the crusher plant building; and

  • water spray use during truck loading.

  1. In addition to this, reference was made to the Review of Dust Emissions from Stockpiles - Holmes Air Sciences.  This report assessed the factors which affect wind erosion from stockpiles and the potential differences in emissions which could arise from increasing the height of the stockpiles from 5 m to 8 m or 10 m, at this Camellia site.  The principal result of this report is that by increasing the stockpile height from 5 m to 10 m, then dust impact from the site will remain acceptable.

  1. Mr Davies’ conclusion is that even though the increased daily operating hours has the potential to marginally increase daily dust emissions by 5-15%, providing the operation of the existing, and additional dust controls are implemented, there is not likely to result in any significant change in impact to off-site air quality.  I rely on this conclusion, to allow the agreed modification conditions.

  1. The associated issue of visual impacts was addressed by Mr O'Grady adopting the following process:

    review of the identified, relevant documents to gain a detailed understanding of the proposal and its planning context;

    assessment with the aid of a topographic map of the visual catchment of the site of the proposed development;

    various meetings with representatives from council and the applicant;

    guided site and area inspection carried out with height indicators erected on the site to aid in the estimation of height of the proposed stockpiles in views of the surrounding area;

    identification of the visual context of the proposal and the character of locality within which development is proposed;

    identification of significant viewing locations within the visual catchment;

    assessment of the likely impact of the proposal in views from this viewing locations.

  2. This process resulted in a detailed report from Mr O'Grady, including assessment of the identified view corridors.  Based on the proposals locations within the Camellia industrial area, Mr O'Grady identified the following location as the most sensitive to visual impact:

    the immediate vicinity within the Camellia Industrial area;
           the open space tracts near to the site along the Parramatta River and the waterway itself; and
           the residential areas to the north within the suburb of Rydalmere. 

  3. From this, he concludes that:

    the proposal to increase the height of stockpiles on the subject site from 5 m to 7-8 m would have no impacts on views from within the industrial area, resulting in only a minimal change in views that are currently dominated by industrial development;

    the increased stockpiles will be visible in some views from the waterway, the open space on either side of the River and from the pedestrian overbridge.  Changes to these views would involve only slight increases in the visibility of industrial activity and in almost every case the raised stockpiles would appeal against a backdrop of existing industrial development.  No views of vegetation and only a very small component of skyline would be screened by the raised stockpiles;

    in the intermittent views of the site available from residential areas to the north, the site appears as a very small component of a broad view that is currently dominated by industrial development.  The very small change to these views that would result from the proposed raised stockpiles would have no appreciable impact on local visual quality;

    in an overall assessment, the proposal would have no appreciable impact on the visual quality of locality and therefore this is not such a significant issue to warrant refusal of the application.

  4. In addition to aforementioned details, further reference was made to the original conditions of consent, which required fencing of subject property adjacent to the Parramatta River boundary.  Apparently considerable delays have been experience in implementing these conditions because of the inability to establish the final lot boundary and define the riverside area to be dedicated for public purposes.

  1. However, during the Court proceedings, further consideration to these conditions was given with agreement to the boundary definition and conditions for the staged construction of a 4 m a high, solid barrier fence along the entire northern elevation of property.  Conditions to affect this within a specified time frame were agreed.

  1. I also note that the application was referred to the Department of Environment and Conservation (DEC) for comment. The EPA supported with subsequently modified stockpiled heights up to 8 m., in conjunction with appropriate measures to prevent dust emissions from the stockpiles.

Conclusions

  1. Having considered the evidence, the submissions and undertaken a view I am satisfied that the s 96 Modifications relate to the same development and based on my merit assessment, should be allowed, subject to the agreed conditions.

  1. The evidence before the Court indicate to me that the increase in height of the stockpiles from 5 m to 8 m will have little if any impacts on dust emissions and visual impacts, providing the conditions of consent are implemented.  In this regard I rely on the respective Court-appointed experts’ opinions, who support this proposal.

  1. In addition to this, I consider there are positive public benefits in imposing the further agreed conditions requiring dedication of the riverside land and fencing the recycling operation.  For these reasons then, the following orders are made.

Court orders

  1. Therefore the orders of the Court are:

  2. The appeal is allowed.

  3. The s 96 application to modify conditions of consent for the concrete recycling operation at 14 Thackeray Street, Camellia, is approved subject to the conditions in Annexure A.

  4. The exhibits may be returned except for Exhibits 2 (Tables 14, 12), 3 and C.

  5. No order as to costs.

___________________

R Hussey
Commissioner of the Court

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