Cortez Enterprises Pty Limited v Hurstville City Council

[2010] NSWLEC 1168

Land and Environment Court

of New South Wales

CITATION:	Cortez Enterprises Pty Limited v Hurstville City Council [2010] NSWLEC 1168
PARTIES:	APPLICANT Cortez Enterprises Pty Limited RESPONDENT Hurstville City Council
FILE NUMBER(S):	10157 of 2010
CORAM:	Brown C
KEY ISSUES:	APPEAL :- modification of existing approval to allow extended costruction hours for a limited time - impact on residential amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	17 May 2010
EX TEMPORE JUDGMENT DATE:	17 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS Morgan Lewis Pty Ltd RESPONDENT Ms J Hewitt, solicitor SOLICITORS HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 May 2010

10157 of 2010 Cortez Enterprises Pty Limited v Hurstville City Council

JUDGMENT

This is an appeal against a refusal of an application to Hurstville Council (the council) to modify condition 80 of Development Consent No. 2005/0607 granted on 19 June 2006, for the construction of an 8-storey medical centre with ground level retail and basement parking at 29-31 Dora Street, Hurstville (the site).

Condition 80

2 Condition 80 states:

80. PNI - Hours of Operation for Building and Demolition Work . - Work in connection with the proposed development or building that involves demolition of any existing buildings, any excavation or earthworks, the depositing of materials on the site, the removal of spoil and materials from the site or the erection of the building that requires the use of any tools (including hand tools) or any power operated plant or machinery that creates noise on or adjacent to the site shall be performed between the 7.00am and 5.00pm Monday to Saturday inclusive. No work is to take place on Sundays, Good Friday Christmas Day and any public holiday.
Additionally construction work on all buildings, (except that on single dwelling houses and the associated structures on the site of a single dwelling house) is prohibited on Saturday and Sundays and weekends adjacent to a public holiday.
A Penalty Infringement Notice may be issued for failure to comply with this condition.
The modification

3 In general terms, the modification application seeks to allow the construction hours to extend to 2am Monday to Saturdays for "internal works” through the inclusion of additional conditions to protect the amenity of adjoining and nearby residential properties. Internal works includes works such as painting, line marking, floor sealing and signage. The full range of “internal works” are provided in the applicant's new condition 80A. The other matters addressed in the modification application are:

• a prohibition on certain activities such as cutting or grinding tiles, nailing carpet underlay, fabrication of joinery units and the installation of stud tracks (condition 80A(ii)),
• the full enclosure of all levels where work is to be carried out (condition 80A(iii)),
• the covering of windows to prevent the light spillage (condition 80A(iv))
• the maximum number of workers being 40 persons to midnight and 20 workers after midnight (condition 80A(v)),
• inspections by the site foreman to ensure compliance (condition 80A(vii)),
• restrictions on the congregation of workers and location of car parking (condition 80A(viii)),
• instruction to workers on special requirements for late night works (condition 80A(ix) and (x)),
• acoustic monitoring (condition 80B),
• the expiration of the extended hours on 31 August 2010 (condition 80C),
• a complaints handling and reporting mechanism (condition 80D),
• notification to local residents (condition 80E), and
• independent acoustic audits at the expense of the applicant (condition 80F).

4 There was disagreement between the parties on some of the above additional requirements and these are addressed later in the judgment.

The evidence

5 Acoustic evidence was provided by Mr Thomas Taylor, for the applicant, and Mr Graham Atkins, for the council. Mr Taylor prepared a Noise Emission Report that identified relevant noise emissions guidelines, the potential noise sources and modelled noise levels at the nearest effected residential receiver. In his assessment, Mr Taylor noted that development in the vicinity of the site comprises a mix of residential and commercial properties. Directly to the east of the site, on the opposite side of Dora Street, is a mixed used development with residential development on a number of upper levels. To the west is a residential flat building on Carrington Avenue.

6 Mr Taylor and Mr Atkins prepared a joint report based on the Noise Emission Report of Mr Taylor. They agreed on the background noise levels in Dora Street and Carrington Road, the appropriate noise management levels and assessment goals and the predicted noise levels at adjoining residential properties.

7 Mr Taylor’s report indicated that the predicted noise levels satisfied the appropriate noise goals at the adjoining residential properties however he accepted that the predicted noise levels are contingent on the compliance with the practices in condition 80A. Mr Atkins stated that, in his opinion, the predicted noise levels are marginal in terms of the compliance and are dependent upon strict compliance and management supervision. For this reason, he does not recommend or support the proposed extended hours. Additionally, Mr Atkins states that the applicant has not provided a clear justification for the proposed extended hours, as required in the document Interim Construction Noise Guidelines published by the Department of Environmental Climate Change in July of 2009.

Findings

8 In balancing the different views of Mr Taylor and Mr Atkins I am satisfied that there is no reasonable basis for not allowing the extension of the construction hours for a number reasons. First, there was agreement that the predicted noise generated by the proposed activities will satisfy the relevant noise goal of background levels plus zero dBA.

9 Second, the modelling of the predicted noise levels is conservative, being based on 50 workers, 20 of which are talking, the combined noise of three electric sanders, ten electric screwdrivers and two electric mixers, operating concurrently in the same room and with an absence of windows sealing.

10 Third, I do not accept that the management of the staff on the site and the policing of the location of workers vehicles to comply with the new conditions is so onerous that it would make compliance unreasonable or unlikely.

11 Fourth, the modelled noise levels provide appropriate opportunities for complaints handling and monitoring for the residents for the adjoining properties, if problems do arise.

12 Fifth, the time of the extended hours for construction is appropriately limited and is to cease on 31 August 2010.

13 Sixth, I have given little weight to the Interim Construction Noise Guidelines as the document relates to larger infrastructure works. The document has also not been adopted by the council. Given the agreed acoustic evidence in the case, reliance on this document, in my view, is unnecessary.

Precedent

14 The council also raised the issue of the precedent and while precedent is a relevant planning consideration, I am not satisfied that it is a consideration that would warrant the application being refused. The particular merits and circumstances of this case are likely to be site specific and of little benefit to other applications, if lodged with the council.

Conditions

15 There was some disagreement between the parties on the appropriate conditions if the appeal was to be upheld. Mr Clay, for the applicant, accepted some modifications could be made to the applicant's conditions to achieve agreement. Of the conditions that were still in dispute I make the following comments:

Condition 80A(vii); I agree with the applicant that it is unnecessary for an acoustic engineer to inspect each level prior to the commencement of work. The site foreman is the appropriate person for this task.
Condition 80B ; a reasonable time for the acoustical monitoring is between one and two weeks so that the monitoring is likely to include the full range of activities to be carried out on the site.
Condition 80D ; the council requirement that work should cease immediately if a complaint is received is unreasonable, given the process for addressing complaints later in the condition.
Condition 80F ; this condition authorises the counsel to undertake acoustic audits from time to time at the expense of the applicant however given the other mechanisms to address complaints, this condition is unreasonable and can be deleted.

Orders

16 The orders of the Court are:

1. The appeal is upheld.
2. The application to modify condition 80 of Development Consent No. 2005/0607 granted on 19 June 2006, for the construction of an 8-storey medical centre with ground level retail and basement parking at 29-31 Dora Street, Hurstville is approved by the inclusion of additional conditions 80A, 80B, 80C, 80D and 80E as set out in Annexure A.
3. The exhibits are returned with the exception of exhibit B.

___________________

G T Brown
Commissioner of the Court