Concrite Pty Ltd v Sutherland Shire Council - [2004] NSWLEC 191

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Concrite Pty Ltd v Sutherland Shire Council [2004] NSWLEC 191

PARTIES:
APPLICANT
Concrite Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 11203 of 2003

CORAM: Hussey C

KEY ISSUES: Development Application :- Concrete batching plant - designated development - SEPP 1 objection to height development standards - dust/noise/public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING: 25 -27/02/2004, 01 - 02/03/2004

DATE OF JUDGMENT: 05/05/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Hale, SC
SOLICITORS
Minter Ellison
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

17

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11203 of 2003

Hussey C

Concrite Pty Ltd
Applicant

Sutherland Shire Council
Respondent

Background
1 . This appeal is against the council’s refusal of a development application for a concrete batching plant at 40 Waratah Street, Kirrawee. The proposal is for designated development and also for integrated development, requiring the consent of the Environment Protection Authority under the Protection of the Environment Operations Act, 1997.

"Concrite have operated a concrete batching plant at No. 444 The Boulevard, Kirrawee for over 25 years. Over the last ten years or so, the land uses surrounding the existing plant in The Boulevarde have changed, with the former school site located directly opposite the site being converted to medium density residential development. This has resulted in a conflict between the existing industrial land uses and the newer residential uses.

Concrite therefore proposes to replace the existing plant in The Boulevarde with a new modern plant to be constructed on land owned by the company at No 40 Waratah Street, Kirrawee …

The primary objective of the proposal is the development of a new modern concrete plant at 40 Waratah Street to replace the existing outdated concrete batching plant at The Boulevarde.

The replacement of the existing plant in The Boulevarde with a new plant in Waratah Street will also resolve the existing conflict between the existing plant and the newer residential uses to the north of that site, by relocating that industrial concrete batching use to the centre of the Kirrawee industrial area.

The site

3 . The site is described as Lot 1, DP 1034728. It is rectangular in shape with a 40.2 m frontage to Waratah Street and a total area of 6000m2. It has an overall slope in the order of 2.5 m from the rear boundary to the front.

4 . At present there is a large metal clad, industrial building on the site, which is proposed for demolition.

- to the east a two-storey commercial/industrial warehouse building.

- to the west a two-storey industrial building (Velox) and a two-storey commercial/warehouse building and car yard (Tynan Motor Group).

The proposal

Control room, offices and amenity building - single storey brick/colour bond building (268 m2 of floor area).

Off street parking for 18 cars located along the north-eastern boundary.

Slump stands (for vehicles) load inspection platforms.

- fine and coarse aggregate storage (1000 tonnes)
- power (cement and fly ash) storage (850 tonnes)
- admixture (predominantly liquid ) storage (50,000 litres).

Solids Trap and Water Recycle Pits adjoining Batching Structure (on western side).

Roofed return concrete and agitor washout receiving facility.

Raw material receiving bins - 6 below ground bins each with a capacity of 65 tonnes.

Raw material conveyor system ( RMCS ), with length 69.59 m and maximum height of 23 m on the eastern boundary, with links to the Batching Structure (at 28 m).

Storage Shed and bunded diesel tank and browser in the south eastern portion of the site.

Open ground and the storage bins for fine and course aggregates (total storage 1400 tonnes) along the rear boundary.

Truck parking areas (south of control room).

7 . The proposed operating times are for 7 days a week and 24-hour daily operation.

Planning Controls
8 . The following planning controls apply to this application:

. Sutherland Shire LEP 2000 (SSLEP ) under which the subject land is zoned 4(a) General Industrial and the development is permissible with consent. However it falls within the classification of designated development, that requires submission of an Environmental Impact Statement (EIS).

Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment
State Environmental Planning Policy, No. 1 - Development Standards (SEPP 1)
State Environmental Planning Policy No 33 - Hazardous and Offensive Development (SEPP 33).
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)
Car Parking - Development Control Plan (Car Parking DCP)
Landscape - Development Control Plan
Environmental Site Management - Development Control Plan
Industrial Development - Development Control Plan (IDDCP)
Sutherland Shire draft LEP 2003 , was exhibited from 18 February 2003 to 31st May 2003. Under this draft instrument The site is within the Employment zone which identifies land that is capable of supporting a wide range of industrial and employment generating uses. It permits a broad range of land uses from traditional industry to high technology enterprises and service providers.
Sutherland Shire draft LEP 2004 , was exhibited from 1 December 2003 to 18 January 2004. The permissible uses and development standards relating to the Employment zone in SSDLEP 2004 remain the same, despite the structure and format of the instrument being changed significantly.

9 . Of particular interest in this matter, SSDLEP 2004 introduces a landscape area development standard of 15 % of the site area.

11 . Other objections contained in Exhibit 11 have been considered.

12 . For the applicant, evidence was presented by:

Mr S. Hills, consulting planner and his report is Exhibit B,

Dr N. Holmes, atmospheric physicist and his report is Exhibit C,

Mr R. Heggie, acoustic consultant and his report is Exhibit D,

Professor D. McKenzie, respiratory specialist and his report is Exhibit F.

- Building height - this involves consideration of a SEPP 1 objection to the building height development standard.

- Building scale - concerning setbacks and landscaping.

- Dust nuisance.

- Noise.

The maximum height for a building in the industrial zone is 12 m from ground level to the highest point of the roof.

15 . The planners agree that this is a development standard and I accept that position.

17 . In the absence of specific objectives for this development standard, Mr Hills relies on the following objectives for restricting building height within the industrial land zone that are stated in cl 13 of IDDCP:

1. New industrial development that fits into the existing or planned urban setting.
2. New buildings are appropriate scale in relation to surrounding development.

18 . He also considers that a distinction can be made between the height of buildings and the height of plant or structures, because in this case the height exceedance is for limited sections of the storage structure and the raw material conveyor, which could be described as plant.

- to ensure the scale of future development is consistent with the desired scale and character of the street and local area, and complements its natural landscape setting,

- to allow reasonable daylight access to all developments and the public domain,

- to minimise the impact of the development on adjoining or nearby properties from the loss of privacy, overshadowing visual intrusion,

- to ensure that the visual impact of the development is minimised when viewed from adjoining properties, the street, waterways and public reserves.

20 . According to Mr Hales submissions, the SEPP 1 Objection should be considered in the context of the sites Industrial 4(a) zoning where the objectives are to permit and encourage a broad range of "industrial uses which will contribute towards employment generation and economic growth of the area."

21 . Furthermore, he submits that the underlying objective of the development standard in cl 49(1) is to be read with the FSR Control of 1:1 in cl 50(1), because together these standards control the bulk and scale of factory and other industrial buildings in the zone, i.e. they define the building envelope for factories and other residential buildings in the zone.

22 . In addition to this, Mr Hale submits that factory buildings generally operate at the ground floor level and incorporate internal mezzanines or offices. From this he confirms the submission that there is a distinction between the industrial buildings and the necessary plant/equipment required to support the primary structures and therefore the height standard does not necessarily apply.

23 . Against this approach, Mr Greens submission is that Mr Nash's evidence be preferred on the basis that the objective of the control is to limit the scale and character of development and resultant amenity impact of solar access, visual intrusion, view and streetscape impacts. These being consistent with the DLEP.

24 . In my assessment of this evidence, I accept there is a common link with the underlying objective being to control the bulk and scale of buildings. However I also consider this should be extended to take into account that unreasonable amenity impacts from the bulk and scale are not created in the neighbourhood, including adverse streetscape impacts. Although, I note that this section of the industrial area does not have a defined natural setting. Therefore I consider that the derived objective of this development standard is ‘to control the bulk and scale of buildings so that they do not cause unreasonable amenity impacts on neighbouring properties and they are compatible surrounding development’ .

25 . With reference to the distinction between buildings and plant elements, I do not consider that reasonably applies in this case, just because the non-complying elements are the RMCS and the SBLS. Even though these elements have relatively small building envelopes, I understand that they will be roofed to prevent dust release. On this basis that they are roofed, they are subject to the height control and I do not consider they should be given little regard, because they are not conventional industrial buildings. In my opinion, this non-compliance can be dealt with by way of the SEPP 1 objection.

26 . Insofar as a number of amenity impact have been identified as issues in this case, the principal ones associated with this height development standard concern visual amenity and view impacts. Accordingly I consider it appropriate to consider these in the context of the existing established Kirrawee industrial area, which contains a significant number of old-style industrial buildings. It also contains a number of non-complying height chimney stacks, lighting/telecommunication towers and elements of the existing concrete batching plant at 444 The Boulevard, Kirrawee. Therefore I do not consider the higher batching plant elements of the proposal in this context, are so exceptional to warrant automatic rejection.

27 . The non-complying height components are the SBLS, which has a building envelope in the order of 17 m x 13 m and 23 m high. Also the RMCS, which has a building envelope of approximately 3.5 x 3.5 m and 23 m high. But the site has a depth of 149.12 m, which allows the SBLS to be setback 45 m from the street boundary. The RMBS has a setback of approximately 47 m.

28 . These setbacks result in the structures being located a significant distance from the street, in proximity to other neighbouring industrial buildings. In my assessment, the height and proximity of these buildings, limits close up viewing opportunities from them and also from the public domain in surrounding streets. The most significant visual impact occurs when the site is viewed directly from Waratah Street.

29 . However the applicant proposes to mitigate this to some extent with landscaping along the frontage of the property and eastern side boundary. Insofar as council’s consultant Ms Sonter says that the landscaping is unsatisfactory, this is primarily because it does not comply with the landscape treatment objectives in clause 12 of the Industrial DCP. In response to this, the applicant submitted a revised landscape plan (Exhibit G), which proposes mass planting of Casuarina glauca, in the front entry traffic island and also more of these species along the eastern boundary to screen the RMBC. This then generally complies with the controls in clause 12, requiring a minimum 2.5 m wide landscape strip, across the site frontage, (excluding crossings) containing a variety of planting forms.

30 . Whilst Mr Nash also expresses some concerns about the limited screening ability of this landscaping, I note from the view that generally this industrial area does not present as a natural landscape setting and include extensive vegetation, even on comparatively recent development. Considering then the minimal landscape character of this industrial area and the limited viewing opportunities, predominantly from Waratah Street, I am inclined to accept Mr Hills opinion that the immediate visual impacts of the proposal, assuming full growth of approximately 20 m for the casuarinas, in this industrial area context are acceptable and that the intent of the landscaping DCP is reasonably satisfied.

31 . In addition to this, I have considered the more detailed visual assessment report in Exhibit J. This examines longer distance view impacts from various public domains, within the wider visual catchment area. From this, Mr Hills concludes that the number of potential viewers is low and as the viewing opportunities are limited, then the sensitivity to visual impact is low.

32 . But I have also considered Mr Nash's main concern relating to view impacts on the elevated properties on the ridge along the Princes Highway. In particular, the Sydney Water site. But this eventuality could only a rise if this site is rezoned to permit residential development. There is no evidence of this to indicate its imminent and certain rezoning. Nevertheless considering the separation distance of this site and its higher elevation, my observations on the view are that the higher batching plant elements form a very small foreground intrusion, above which are more attractive city skyline views.

33 . Therefore, on the basis that the non-complying elements have a relatively small intrusive building envelope and they are to be painted in a subdued colour, and they do not cause other significant environmental disamenity, such as overshadowing or privacy loss, then I consider more weight should be given to the complimentary objectives, which seek to encourage employment generating activities in this existing and/or general industrial zone. In my assessment then, the evidence before the Court indicates that this SEPP 1 Objection is well founded.

34 . The next issue concerns dust amenity . This is of particular concern for Tynan Motors whose car service and storage yard is located immediately to the west. Mr Tynan says that the proximity of the batching plant is unsatisfactory because it will result in cement and dust deposition on the vehicles and spare parts, which could cause significant damage and warranty problems.

35 . However this issue was the subject of an expert’s conference, which acknowledged that the development will generate dust admissions are under normal conditions but this will comply with EPA Guidelines. Insofar as they also agree that Tynan Motors and some other neighbours are sensitive receptors, it is unknown what level of dust/cement fallout will give rise to nuisance or damage. With respect to the risk of major liability to Tynan Motors, there is agreement that the risk is low, but the consequences could be high.

37 . In the event of any system failure, the batching process is halted immediately. This occurs as result of an automatic link between the dry dust extractor and the batching computer. The computer will automatically shut down the valves, which discharge the cement, aggregate and water. These valves shut down in less than a second.

38 . In addition to this, I have considered the detailed reports from the respective environmental consultants. It seems that Dr Holmes has undertaken extensive modelling, in accordance with current best practice. This modelling has assessed the current air quality in the Kirrawee industrial area, where some dust deposition is evident and presumably some contribution is made from the existing batching plant, which is to be closed. From the modelling, Dr Holmes concludes that any dust emissions from the proposed plant will be lower than the existing plant and based on the assumption that cement dust does not currently affect vehicles in the area, then the effects of cement dust on cars parked at Tynan's Motors is expected to be well below the level at which detectable effects would occur.

39 . An associated aspect of dust amenity concerns the health risk to persons in the area. However, this has been addressed by Professor D. McKenzie, Associate Professor of Respiratory Medicine. He concludes that on the basis of provided information that "there will be no material risk either to the employees of the plant or to others in the vicinity. All the materials proposed to be handled at the site are safe and would be unlikely to cause clinically significant harm or long-term disability even in the event of major equipment failure leading to a transient very high dust emission ".

40 . Taking into account the general agreement of the respective environmental consultants, I rely on the conclusions of Dr Holmes, who has significant expertise in the area of atmospheric physics, together with Professor McKenzie's conclusion that the level of risk from dust / cement fallout is very low and not of sufficient magnitude to warrant rejection of this application.

41 . Noise nuisance was also raised as an issue. This was considered by the acoustic consultants, with the main concern relating to plant and transport noise at night, being heard at the residential properties. This is partly due to the proposed 5 m high compound wall at the rear of the property.

42 . In response to these concerns, further testing was undertaken, which confirmed the original testing that no canyon in affect would occur, so that noise emission from the plant could satisfactorily be controlled. I accept that appropriate performance based conditions can cover this in a development consent.

43 . The other concern is from transport noise from the use of Oak Road. Having considered the various submissions, it appears that a reasonable solution to this, is to restrict the use of Oak Road after peak hours during the week and on Saturdays and Sundays. This is from the basis that the alternative access via Waratah Street to Princes Highway is available and unlikely to result in significant delays in deliveries.

Conclusions
44 . Having considered the evidence, the submissions and undertaken a view, it appears to me that this proposal merits conditional consent.

45 . Whilst the proposed concrete batching plant is a sensitive, designated development, nevertheless the current controls permit it in this Kirrawee industrial area, providing the environmental impacts are satisfactory.

46 . Insofar as there is the Draft LEP 2004, which is more restrictive in terms of the requirements for the nature of industrial development and additional landscaping, nevertheless it still permits this form of industrial development. Given that there is no compelling evidence regarding its approval being certain and imminent, I consider it should only be given diminished weight. Furthermore, the inclusion of a saving clause is also uncertain, which would probably allow this proposal to be assessed on the basis of the current controls, with a lesser landscaping requirement.

47 . An important part of this proposal is that the existing "outdated" concrete plant in The Boulevarde is to be closed and replaced with this new proposal, which offers improved environmental amenity. One of the important environmental elements concerns dust nuisance. According to Dr Holmes’ assessment, the new plant will result in an improvement in air quality, after the existing plant is decommissioned. Therefore I consider it essential that appropriate arrangements are made to secure this closure, so that the 2 batching plans do not operate concurrently.

48 . This is in-line with the other major concern of an adverse visual impacts of some components of the proposed batching plant. In my assessment, the non-complying elements have relatively small building envelopes, whose visual impacts can be reduced to a reasonable extent by appropriate materials, colours and landscaping. In this regard I rely on the evidence of Mr Hills that the detailed view analysis indicates that visual impacts are acceptable in this industrial area context. Therefore I am satisfied that the SEPP 1 is well founded. Again however, the degree of visual intrusion is somewhat dependent on the existing plant being removed, as proposed by the applicant.

"Nevertheless, the proposed height is considered justified in the circumstances of this case and on its own merits. From the streetscape perspective, the structure whilst significant in height is well setback and is a one-off structure and thus will not impact adversely on the local context. From a long-distance perspective, the structure will not form a "blot" on the horizon given the character of the existing skyline."

50 . This is consistent with my findings on the evidence before the court.

51 . With regard to the submissions by Mr Green that there has been insufficient investigation of alternative sites, this was not identified as a specific issue in these proceedings. But this was considered in terms of the suitability of the site assessment by the council planners, where it was found suitable, particularly having regard to the following factors:

- the site is large and level with good access to the arterial road system.
- the site does not immediately join residential areas/sensitive land uses
- the site is within an appropriately so established industrial area .
- The site is not subject to any major hazards/environmental constraints .

52 . Together with the other evidence, this conclusion is consistent with my findings that this site is suitable for concrete batching plant, subject to the imposition of appropriate environmental controls. In this regard, I have considered the various objections and consider that they have been addressed in the general issues and conditions.

53 . In summary then, it appears to me that this proposal to relocate the concrete batching plant into the centre of the Kirrawee industrial area is consistent with the existing controls and the proposed Employment zone objectives. Also it provides the opportunity for enhanced environmental amenity in this industrial area and the surrounding residential precinct, so as to merit conditional consent.

54 . However, this is subject to the finalisation of appropriate conditions, which adequately cover the decommissioning of the existing concrete batching plant, clarification of residential development conditions, hours of operation and traffic restrictions in Oak Road during night time and weekends, noise monitoring and consistency with EPA requirements, which have to be determined.

_________________
R Hussey
Commissioner of the Court
Rjs

No. 11203 of 2003

Concrite Pty Ltd

Applicant

Sutherland Shire Council

Respondent

Order

The Court orders that:

1. The appeal is upheld.
2. The SEPP 1 Objection to the height development standard in cl 49 of SLEP 2000 is allowed.
3. Development consent is granted to DA 021530 for the construction of a concrete batching plant at No. 40 Waratah Street, Kirrawee, subject to the conditions in Annexure “A”.
4. The exhibits may be returned except for 2, 19, 20, 22, 30, 31, 34, 36, A, B, C, F, H, S and T.

Ordered: 2 June 2004
By the Court

Susan Dixon
Registrar
rjs

Annexure “A”
Conditions of Consent
Concrite Pty Ltd v Sutherland Shire Council
Development Application No. DA021530

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

1.

Approved Plans and Documents

Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:

a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA

b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.

2.

Prescribed Condition

3.

Requirements of IDA Approval Authorities

The development shall be conducted in accordance with all conditions of approval of the following Approval Authorities under Section of the Environmental Planning and Assessment Act 1979 except where inconsistent with a condition of this consent:

Bonds and Contributions

The following security bonds and contributions have been levied in relation to the proposed development.

4.

Council Property Security - Demolition

At least two days prior to the commencement of demolition works the applicant shall provide security to the value of $5,000 for the payment of the cost of making good any damage caused to any Council property as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council. This shall be retained by Council for a period of 6 months following completion of the demolition work for the purpose of remedying any defects in public property that arise in this period. Should any public property sustain damage during the course of the demolition works Council may carry out any works necessary to repair the damage and the cost of these works will be deducted from the security. A request for release of the security may be made to Council 6 months after all demolition work has been completed.

It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall accompany the Construction Certificate.

5.

Council Property & Environment Damage Security – Construction

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $10000 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. This shall be retained by Council for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.)

It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall accompany the Construction Certificate.

6.

Landscape Security (Effective Landscaping)

Before the issue of a Construction Certificate the applicant shall provide security to the Council to the value of $5,000 for the payment of the cost of providing effective landscaping and maintenance for a period of 6 months from the date of the occupation certificate.

The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council. This will be retained by Council for a period of 6 months following completion of work to enable the monitoring of the maintenance of the landscape work. An application for refund of this bond or security may be made to Council following the expiration of this period.

If Council determines that works are necessary to ensure the landscaping, bush regeneration and maintenance is effective and satisfactory in accordance with the terms of the development consent the cost of these works will be deducted from the security.

7.

Public Risk Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Risk Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

8. Design Conditions

8.1 These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

Design Changes Required

a) A fence of a height of 5m shall be constructed along the full length of the southern boundary of the premises and for a length of 27.35m along the western boundary and 21.6m on the eastern boundary. That fence is to be of an impervious material with a noise reduction index (RW) not less than 30.

c1) The proposed front fence shall be setback 2.0m behind the front boundary line and the area fronting the fences shall be landscaped with indigenous species 1.0m in height.
d) The entire site area is to be paved excluding those areas prescribed for landscaping and parking of cars. The car parking areas are to be paved with Ecopavers.

e) A Windshield in the form of a 5m high wall is to be erected on the western boundary between the storage bins and the existing building at the rear of Tynan Motors to protect this site from dust.

f) A water spray system is required to control dust on all uncovered stockpiles.

g) Cementitious products must be loaded to silos pneumatically.

h) All conveyor transfer points must be enclosed and all elevated conveyors should be covered on three sides to prevent dust emissions.

i) Concrete trucks must be loaded via a full “gravity” system as opposed to a loading belt. k) A dry dust collection system should be installed to control dust at the point where concrete trucks are loaded. The loading bay should be enclosed on three sides.

j) The drainage system must capture solids and slurry to prevent the trucks dragging materials towards the exit gate and off the site.

k) All Cement silos and cement weigh hoppers must use reverse pulse filters. Dust collected by the dry loading dust extractor should also use reverse pulse bag filters.

m) Displaced air dust detection system must be equipped with dust sensors in the outlet of the filter that will detect and automatically shutdown loading immediately when dust in the exhaust air is detected above 5%. This applies to imported powders and to the plant’s batching system.

n) Dust filter systems must employ two independent systems to automatically shutdown loading operations in the event of a failure before damaging pressures are reached. This applies to systems employed to imported powders and to the plant’s batching system.

p) In the event of a power failure the valve in the silo fill line shall use a failsafe spring to close the fill line and valves between the weigh hopper and truck loading point.

q) Weigh hoppers will be fitted with product level detection systems that will shut down loading operations when a nominated level is reached.

General Construction Condition 1

General Construction Condition 2

9.

Public Risk Insurance

A separate recycling bin or container shall be provided and located wholly within the property boundaries.

10.

Design and Construction of Works in Public Areas

The following public works shall be designed in accordance with the requirements of Council's issued design brief and constructed to Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments":

a) A temporary concrete footpath crossing for construction vehicle access.

c) Demolition of existing kerb and gutter at the proposed points of access and replacement with a concrete layback crossing.

e) The vehicular footpath crossings in Waratah Street are to be 12m wide (maximum) and constructed of 200mm thick reinforced concrete.

f) Construction of a 1.2m wide plain concrete footpath across the full frontage of the site.

g) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties at a maximum gradient of 1 in 14.

h) Construction of footpath crossings to the levels issued by the Council.

The survey and design for the road frontage works may be either undertaken by Council's Engineering Division or by a NPER civil engineer certifying that the design has been carried out in accordance with all appropriate and relevant standards.

Council's Engineering Division charges a fee for its services. A quotation may be obtained by contacting the Design Branch Manager on telephone 97100247.

11.

Operational Management Plan

The applicant is to prepare an Operational Management Plan for the day to day operation and management of the site to be submitted the Council and forwarded to the Environment Protection Authority. This plan shall be held at the Environment Protection Authority, the Council planning department offices and be available for inspection at all times on site by management staff and Council officers.

Dust
Refer to Condition 69

Noise

Refer to Condition 68

Refer to Condition 30
Hours of Operation

Refer to Condition 63
Designated Haulage Routes

Refer to Condition 29, and 62

Refer to Condition 23, 24, 25, and 26

12.

Construction and Site Management Plan

A Construction and Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:

c) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,

d) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.

f) The requirements of any site specific Development Control Plan that may affect this development site.

g) The footpath and road reserve shall not be used for construction purposes.

Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:

iv. Pump stormwater from the site to Council's stormwater drains, or

13.

Construction Soil and Water Management Plan

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

The Plan shall take into account the objectives of Council’s Environmental Site Management Development Control Plan and shall be compatible with any Construction Management Plan thus ensuring the following objectives are achieved namely.

b) To minimise the area of soils exposed at any one time.

c) To conserve topsoil for re-use on site.

e) To preserve existing vegetation and identify revegetation techniques and materials.

f) To control surface water flows through the development construction site in a manner that:

iii. Ensures surface run-off occurs at non-erodable velocities

iv. Ensures disturbed areas are promptly rehabilitated.

g) Trap sediment on site to prevent off site damage. Hay bales are not to be used as sediment control devices. To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works until the site is stabilised (includes landscaping).

14.

General Construction Certificate Condition 1

Prior to issue of the construction certificate, a heavy vehicle traffic management plan to apply during the construction period of the plant shall be submitted to Council. Such plan shall require that all heavy vehicle movements are restricted to Waratah Street east of the subject site during the construction period.

Conditions Relating to Works in the Road Reserve

These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.

15.

Access Application

16.

Road Opening Approval Required

Note: An application fee of $60.00 applies (Account No.49200).

17.

Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an Accredited Certifier (Civil Engineer) to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

a) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with:

(i) all relevant statutory requirements,

(iii) construction requirements detailed in the above Specification, and

b) on completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and,

Public Utility Authorities Requirements

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

18.

Public Utilities

a) The provision of underground low voltage electricity conduits within the footway area of Waratah Street.

c) The need for the provision of a kiosk-type substation.

19.

Sydney Water - Notice of Requirements

20.

Sydney Water - Referral Requirements

21.

Public Utility Authorities

22. Internal driveway profile

a) Provide adequate sight distance for the safety of pedestrians using the footpath area;

Certification from an NPER qualified Civil Engineer to the effect that these design requirements have been met shall accompany the Construction Certificate.

23.

Drainage Design - General

24.

Drainage Design - Detailed Requirements

a) A detailed drainage design supported by a catchment area plan and drainage calculations (including a Hydraulic Grade Line Analysis).

b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.

c) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the proposed drainage line.

d) A physical barrier (eg. concrete kerb or earth mound within the landscaping) shall be provided around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.

e) Water from pathways and access drives shall be prevented from entering the road reserve as surface flow. This can be achieved by constructing a box drain at the boundary equipped with a 300mm wide heavy duty grate and frame to collect the flow or directing the flow to a sag pit within the property.

f) The rate of discharge of stormwater from the site to a drainage system under Council's control shall be controlled so that it does not exceed the pre-development rate of discharge. Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details. This system shall include a stormwater reuse system provided that only uncontaminated site water is discharged to the Council's stormwater drainage system. All other stormwater flows are to be employed in the water re-use system.

g) A drainage depression shall be provided for the full width and length of the drainage easement through the subject site that facilitates the overland escape flow of stormwater. The escape route shall be designed to have the capacity to carry the difference between a 1 in 100 year flow and half the flow in the pipeline within the easement. Specific certification shall be provided by the designer to this effect as part of the submitted drainage design / details.

25.

Drainage Design (Stormwater Disposal)

a) The existing piped drainage system, being a properly functioning system permitted by Council and

b) The proposed stormwater re-use system.

26.

Stormwater Treatment

An appropriate stormwater treatment measure, selected from the Environment Protection Authority's document "Managing Urban Stormwater - Treatment Techniques, November 1997", shall be provided as part of the permanent site stormwater (water quality) management system.

27.

Design of structure adjoining drainage easements

28.

Footing design adjoining easements

29.

Parking areas and access

and AS2890.2-2002

The following specific requirements shall be incorporated into the constructed works:

a) All "one way" traffic aisles within the site shall be clearly identified by signposting and pavement marking.

b) The ingress and egress crossing shall be clearly signposted as such.

c) The proposed loading and delivery area shall be clearly defined with suitable signposting and pavement markings.

d) The car park shall be line marked sufficient to accommodate 18 vehicles.

30.

External Lighting - Amenity

Subject to occupational health and safety requirements:

(i) any lighting on the site shall be designed and operated so as not to cause a nuisance nor adverse impact on the other residents of the surrounding area nor to motorists on nearby roads;

(ii) all external lights shall be designed in accordance with Australian Standard – AS4282 – Control of the Obtrusive Effects of Outdoor Lighting.

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

31.

Pre-Commencement - Notification Requirements

a) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment,

32.

Pre-Commencement Inspection

33.

Pre-Commencement Site Inspection - Road Frontage Works

Contact shall be made with Council's Engineering Assessment Officer(s) to arrange for the inspection.

Note: An inspection fee of $135.00 applies (Account No. 1721550) shall be paid to Council prior the lodgement of the Notice of Commencement

34.

Signs to be Erected on Building and Demolition Sites

(a) the site address (correct house number and street name);

(c) Principal Certifying Authority details (name and contact phone number);

(d) Builder (or Civil Contractor for subdivision) details including company name, ACN (if applicable), address, phone number, 24 hour contact name and phone number;

(e) Demolition Contractor details (if applicable) including company name, ACN (if applicable), address, phone number, contact name and phone number;

Any such sign is to be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.
Note:

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

35.

Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.

36.

Permitted hours for building and demolition work

37.

Toilet Facilities

Each toilet provided:

a) shall be a standard flushing toilet, and

ii. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

The provision of toilet facilities in accordance with this clause shall be completed before any other work is commenced.

38.

Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:

a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 – The Demolition of Structures,

b) It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall be submitted to Council prior to the commencement of work. Any damage other than that noted prior to commencement of the demolition shall be the responsibility of the owner of the property for repair or reinstatement, and

c) The applicant shall ensure that the demolition contractor has a current public risk insurance coverage for a minimum of $5 million. A copy of the Policy must be submitted to the Council prior to demolition.

The formal approval of the Workcover Authority is required prior to commencement of work where the area of the sheeting or product exceeds 200 square metres.

39.

Excavations and backfilling

a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards

c) All trees to be retained on the site shall be suitably protected from damage during excavation. The extent of all affected root systems shall be identified on the ground and "pegged" by an experienced arborist prior to the commencement of work.

40.

Retaining Walls and Drainage

41.

Support for Neighbouring Buildings

b) if necessary, shall underpin and support the building in an approved manner, and

c) shall, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

d) the owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

42.

Protection of Public Places

ii. building involves the enclosure of a public place,

A hoarding or fence shall be erected between the work site and the public place.

b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

43.

Noise control during construction and demolition

b) For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.

44.

Vibration damage

45.

Maintenance of Erosion Control Measures

46.

Run-off and Erosion Controls

a) diversion of uncontaminated runoff around cleared or disturbed areas,
b) a silt fence or other device to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways,

c) controls to prevent tracking of sediment by vehicles onto adjoining roadways and public areas, and

47. Construction

47.1 Construction of Public Frontage Works

a) A temporary concrete footpath crossing for construction vehicle access.

b) Drainage.

c) Demolition of existing kerb and gutter at the proposed points of access and replacement with a concrete layback crossing.

d) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter.

g) The footpath crossings in Waratah Street to be 12m wide (maximum).

h) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required at a maximum gradient of 1 in 14.

i) Construction of footpath crossings to the levels issued by the Council.

k) Erosion and sediment controls.

47.2 Permission shall be obtained for the carrying out of the proposed works, under the Roads Act, 1993 prior to the commencement of works or the issue of a Construction Certificate.

48.

Stockpiling of materials during construction

49.

Construction materials and machinery must be kept on site

50.

Spoil deposited on public way (roads or services)

Landscaping Requirements

These conditions are imposed to ensure the retention and enhancement and maintenance of the proposed and approved landscape plan.

51.

Irrigation system

52.

Street Planting

53.

General Landscaping Condition 1

The landscaping shall be carried out in accordance with the landscape plan prepared by Stuart Pittendrigh (with the following condition 1 of this consent) with the following amendments:

· The two larger circles indicated, but not identified, in the central planting bed, shall represent the following species:

§ A Eucalyptus maculata, Spotted Gum, and a Syncarpia glomulifera, Turpentine. Both trees are to be planted at a 75 litre size, grown to Natspec specifications.

· The circles indicated, but not identified, in the western planting bed, shall represent the following species:

§ Grevillea banksii to be planted at a 25 litre size.

· An additional 25 Grevillea Bronze Rambler are to be planted at a 5 litre size as understorey planting in the western garden bed, and an additional 25 planting in the central garden bed.

Further, planter beds and boxes incorporating indigenous shrubs and ground covers shall be provided within the 2 metre landscape strip between the front fence and street boundary. Within this strip, maximum centres between shrubs should be 1.0 metre and maximum centres between groundcovers should be 0.5 metres.

POST-CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation/occupation of the development.

54.

Section 73 Compliance Certificate

An application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water web site at or by telephone 13 20 92.

55. Works As Executed Information

a) All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.

b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

56.

Works As Executed Drawings

a) All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council's "Specifications For Civil Works associated with Subdivisions and Developments".

57. Prior to Occupation or Use of the Development

a) A Final Occupation Certificate and Completion Report is issued and provided to Council for the development, or

b) Approval is obtained from Council to stage the development to permit occupation or use of part of the development covered by the Development Consent and

58.

Completion Report

a) Subject property description.

b) A description as to the whole or part of the development in respect of which the Completion Report is given.

c) Development Consent reference number and Construction Certificate reference number.

d) A description of any work/ stages that has been inspected, the date of the inspection and by whom such inspection was carried out.

e) A list of any documents required by the Consent, referred to or relied upon in respect of which the Completion Report is given.

f) A copy of any such documents referred to or relied upon within the report.

g) A statement to the effect that the Consent Authority or Accredited Certifier certifies that the subject stages of the development were inspected and found to be satisfactory. The whole development or described part (as the case maybe), is completed and complies with the issued development consent and construction certificate (approved plans, specifications and conditions).

59.

Final Site Inspection

Note:

An inspection fee of $135.00 applies (Account No. 1721550).

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

60.

Carparking Areas

61.

Hours of Operation

62.

Loading and Unloading

63.

General Operation/Amenity Condition 1

(i) 7 pm to 7 am Monday to Friday; and

64.

General Operation/Amenity Condition 2

65.

Noise

a) Only 1 loading bay and 1 slump stand shall be operated on the premises during the periods:

(i) 10 pm to 5 am Monday to Saturday; and

(ii) All day Sunday

d) The LAeq 15min noise level emanating from the premises measured over the daytime (7.00am to 6.00pm), evening (6.00pm to 10.00pm) or night time (10.00pm to 7.00am) period shall not exceed 65dBA within the premises of Funarama under neutral meteorological conditions.

· The noise levels measured shall be compared with the noise limits in Conditions, b, c, and d and a report shall be prepared within one week of the measurements having been carried out and submitted to Council. Where any measured noise levels exceed the limits in Conditions b, c and d , noise control measures shall be implemented to ensure compliance, otherwise the operation of the plant shall be modified to ensure compliance.

· During the noise compliance measurements to be carried out in accordance with this Condition the temperature gradient shall be measured on the site between a height of 5m and a height of 35m above the ground. In addition, wind speed and direction shall be measured on or near the site or shall be obtained from a relevant nearby wind monitoring station during the measurement.

· The noise measurement to be carried out within the first three months shall include measurements of the operation on at least three occasions during the night time period between 1.00am and 4.00am during full night time operation of the plant in accordance with Condition 65(a).

f) The front end loader on the premises shall be used only during the periods of 8.00am to 10.00pm Sunday and 5.00am to 10.00pm on other days.

g) An acoustical fence of a height of 5m shall be constructed along the full length of the southern boundary of the premises and for a length of 27.35m along the western boundary and 21.6m on the eastern boundary. That fence is to be of an impervious material with a noise reduction index (RW) not less than 30.

66.

Dust

a) All areas susceptible to wind erosion are to be swept with a vacuum or hosed in manner so as to minimise dust leaving the site or being stirred into the atmosphere.

b) Water sprays should be used periodically throughout the day on stockpiles of sand and aggregate to minimise dust leaving the site.

d) All concrete residue and/or mud must be cleaned from every concrete truck (including the wheels) before departure from the site.

e) All air pollution control equipment must be maintained and serviced in accordance with the manufacturer’s guidelines .

f) An adequate supply of cleaning agents must be stored on the premises so that when added to water they can be used to remove cement dust from vehicles in the event of an accident.

g) A visual inspection of adjoining premises including Tynan Motors Pty Limited premises at 98 Oak Road must be conducted immediately following any incidents that may impact on dust emissions from the premises.

h) Dust fallout levels in the area where motor vehicles are stored at Tynan Motors Pty Limited premises at 98 Oak Road shall be monitored and analysed for the total and soluble solids and cement dust. Should the total dust fallout levels exceed 4g/m2/month for any 2 consecutive months then an independent study must be commissioned by the Applicant to identify the factors that have contributed to the fallout. If Concrite operations are identified as the cause of the excessive fallout then corrective action to remove the causes shall be undertaken. Concrite shall monitor and log wind speed and wind direction at 10 minute intervals at the top of the silo to provide data that will assist in the interpretation of the dust fallout data.

67.

Surrender of Development Consent

The Applicant shall cease operations and surrender Development Consent No DA No 307/76 for the premises at 444 The Boulevarde within 3 months after the first commercial sales of concrete from the premises at 40 Waratah Street, Kirrawee

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Citations

Concrite Pty Ltd v Sutherland Shire Council [2004] NSWLEC 191

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CITATION:	Concrite Pty Ltd v Sutherland Shire Council [2004] NSWLEC 191
PARTIES:	APPLICANT Concrite Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11203 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Concrete batching plant - designated development - SEPP 1 objection to height development standards - dust/noise/public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Local Environmental Plan 2000
CASES CITED:
DATES OF HEARING:	25 -27/02/2004, 01 - 02/03/2004
DATE OF JUDGMENT:	05/05/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale, SC SOLICITORS Minter Ellison RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike and Fenwick