Cracknell and Lonergan Architects Pty Ltd v Inner West Council

[2017] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cracknell and Lonergan Architects Pty Ltd v Inner West Council [2017] NSWLEC 1521
Hearing dates:	14 September 2017 2017
Date of orders:	27 September 2017
Decision date:	27 September 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is upheld. (2) Development consent is granted to modify the conditions of consent granted under Determination 200200921 (Annexure ‘A’) to reflect the modified conditions of consent attached as Annexure ‘B’. (1) The exhibits are returned, with the exception of Exhibits 1 and D.
Catchwords:	APPLICATION TO MODIFY CONDITIONS OF CONSENT – Application under s 96(1A) of the Environmental Planning and Assessment Act 1979 – Minimal environmental impact – Extended operating hours – Potential noise impacts on residential dwellings within land zoned IN1 General Industrial.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 79C and 96 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011
Cases Cited:	Nil
Texts Cited:	Marrickville Development Control Plan 2011, Pt 6 NSW Industrial Noise Policy 2000, s 2.2.2
Category:	Principal judgment
Parties:	Cracknell and Lonergan Architects Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr Fraser (Applicant) Mr M Bonanno (Respondent)   Solicitors: Fritchley Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2016/00361944
Publication restriction:	No

Judgment

Background

1. COMMISSIONER: Cracknell and Lonergan Architects Pty Ltd (‘the Applicant’) has appealed a decision by Inner West Council (‘the Respondent’) to refuse its application for modification of the operating hours under a development consent issued by the previous Marrickville Council (determination 200200921), for the warehousing, storage, polishing, cutting and distribution of marble and granite sheets by the business known as ’Euro Marble’.

2. The current consent granted for operation of ‘Euro Marble’ in 2003 (attached to this judgment and marked as Annexure ‘A’), limits the trading hours to 7 AM to 10:30 PM Monday to Friday and 7 AM to 4 PM on Saturdays with no work being carried out on Sundays or public holidays.

3. The application seeks approval to allow the ‘Euro Marble’ business to operate between the hours of 6 AM and midnight 7 days a week.

4. The appeal is made pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’).

5. The ’Euro Marble’ business is located at 11 Rich Street Marrickville (Lot 54 DP 868710) (‘the Subject Site’), on the north-eastern side of Rich Street, between Shepherd Street and Cook Road, Marrickville. The western side of the subject site borders Meeks Lane. There is a mix of industrial and residential uses located between Meeks Lane and Shepherd Street.

6. The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the ‘LEC Act’) on 12 April 2017. An inspection of the Subject Site was undertaken prior to the commencement of the conciliation conference.

7. Two objectors made submissions to the Court during the on-site inspection:

• Mr Jonathan Farry, an owner of a residential dwelling on Shepherd St located adjacent to the Subject Site; and

• Mr Yani Ugo, the representative of the owners of another adjacent property on Shepherd St.

8. The objectors’ principal concerns related to the potential for the proposed extended operating hours to generate intrusive noise that would impact on their residential amenity.

9. The parties were unable to reach agreement during the s 34 conciliation process and the conciliation conference was terminated.

10. The Parties requested that I dispose of the matter at hearing under s 34(4)(b)(i) of the LEC Act.

11. The Respondent confirmed that the objectors had been advised of the date and time of the hearing and that none had elected to make further submissions on this matter.

Statutory considerations

Environmental Planning and Assessment Act 1979

12. The application is made under s 96(1A) of the EP&A Act which provides that:

“1A Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.”

13. The provisions of s 96(1A) are preconditions to the consideration of an applicaton for modification of a consent under s 79C(1).

14. Section 79C(1) of the EP&A Act states:

“79C Evaluation

(1) Matters for consideration--general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”

Marrickville Local Environmental Plan 2011

15. The Subject Site is zoned IN1 General Industrial under Marrickville Local Environmental Plan 2011 (‘MLEP’). The industrial zone extends to the north-west of the Subject Site as far as Shepherd Street, Marrickville. The proposed development is permissible with consent under the provisions of MLEP.

16. The objectives for the IN1 zone are:

“1 Objectives of zone

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

• To protect industrial land in proximity to Sydney Airport and Port Botany.

• To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house.”

17. The most relevant of these objectives to the current appeal is “to minimise any adverse effect of industry on other land uses”.

18. The Respondent advised that the Subject Site is also within the Draft Victoria Road Planning Proposal precinct, under which it is zoning would become IN2 Light Industrial. The proposed development would not be permissible under this proposed zoning.

Marrickville Development Control Plan 2011

19. The Subject Site is also subject to the provisions of Marrickville Development Control Plan 2011 (‘MDCP’).

20. Section 6.2 of MDCP addresses the management of industrial/residential interface areas and says that the (former) Marrickville Local Government Area, within which the Subject Site is located, contains a variety of land uses. It says that in some cases the historical development of land has led to residential and industrial uses occurring in close proximity to each other. This is the circumstance of the current appeal where the area zoned IN1 containing the subject site also contains development of a residential use.

21. Section 6.2.2 of MDCP addresses noise and vibration generation from business activities. It notes that the quality of life enjoyed by residents and people engaged in business and community pursuits must not be hampered by excessively noisy activities.

22. This section of MDCP has the following 2 objectives:

“O30    To reduce, if not eliminate, land use conflicts and anomalies between industrial areas and residential areas.

O31    To minimise the impact of noise and vibration of proposed operations with the subject development and on surrounding developments.”

23. Section 6.2.2 of the MDCP includes controls for the management of noise and vibration generating activities. The parties confirmed that the following control was the most relevant:

“C46 Where sites join a residential area, the number of hours and times at which mechanical plant and equipment is used should be limited in conjunction with sound proofing measures.”

NSW Industrial Noise Policy 2000

24. The aim of the NSW Industrial Noise Policy 2000 (“the INP”) is to allow the need for industrial activity to be balanced with the desire for quiet in the community.

25. The INP’s objectives include establishing noise criteria that would protect the community from excessive intrusive noise and preserve the amenity for specific land uses.

26. The INP (Section 2.2.2) states that the selection of the type of receiver is important in determining which noise immunity criteria level should apply. The policy further says that in most instances the receiver category from the immunity criteria will be straightforward but in some localities land use patterns or zones may be ambiguous in terms of selecting the appropriate receiver type.

27. The INP further states that the primary method of identifying the type of receiver is how the receiver area is zoned in the relevant planning instrument. However the INP also states that in certain instances, zoning for an area will allow multiple uses. This is the situation on the Subject Site where, although the ‘Euro Marble’ business is located within a general industrial zone, areas within the zone adjacent to the subject site also include residential dwellings.

28. The INP notes that in instances where the zoning allows for multiple uses, noise levels that are achievable will be defined by applying all feasible and reasonable mitigation measures.

29. The INP recommends that consent authorities consider the need to incorporate noise mitigation measures in noise sensitive developments where such mixed uses are permitted.

Have the requirements of s 96(1A) of the EP&A Act been met?

(a) Is the proposed modification is of minimal environmental impact

30. The proposed modification seeks approval to vary the operating hours of the ‘Euro Marble’ business in Marrickville. The nature of the business is not proposed to be altered and the potential impacts arising from the proposed modification relate only to potential acoustic impacts.

31. The parties agreed that the scale of the proposed modifications was limited and that potential impacts arising from the proposal were of narrow compass, capable of mitigation and were of minimal environmental impact.

(b) Is the development to which the consent as modified relates substantially the same development as the development for which the consent was originally granted?

32. The parties agreed that, because it was not proposed to alter the nature of the business undertaken on the Subject Site, the consent as modified would be a development that was substantially the same as that for which consent was originally granted.

(c) Has the proposed modification been notified in accordance with the regulations and/or DCP?

33. The parties confirmed that the proposed modification was notified in accordance with the requirements of the MDCP.

(d) Were any submissions made within any period prescribed by the regulations concerning the proposed modification or provided by the development control plan?

34. A total of four submissions were received by the Respondent as a consequence of its notification of the proposed modification.

35. Two of the objectors who had made submissions in response to the notification also made submissions to the Court during the conduct of the s 34 conciliation conference.

36. These submissions were considered by the parties during the course of this hearing.

Conclusion concerning s 96(1A) preconditions

37. I conclude from the above that the requirements of s 96(1A) have been met and that, as a consequence, I am able to undertake the merits assessment of the proposed modification of the former Marrickville Council’s determination 200200921.

Matters for resolution in this appeal

38. The principal contention between the parties related to the potential for the proposal to give rise to intrusive noise impacts on residential dwellings located within the IN1 zone adjacent to the subject site.

39. The principal question to be resolved is:

1. can the hours of operation of the ‘Euro Marble’ business be extended so that any potential noise impacts are mitigated so as to ensure appropriate respite to the occupants of the residential dwellings adjacent to the subject site?

40. A joint report of the acoustic experts was tabled as evidence during the hearing. The report was prepared by Mr Peter Knowland, for the Applicant, and Mr Steven Cooper, for the Respondent.

41. The acoustic experts agreed that if the recommendations in their joint expert report were incorporated into conditions of consent and subsequently into the plan of management for the operation of ‘Euro Marble’, the development would be in acoustic compliance.

42. The experts further agreed that adoption of the recommendations would ensure that the noise targets required under the INP for operation of the ‘Euro Marble’ business would be achieved during the proposed extended operating hours.

43. The recommendations of the experts were as follows:

1. For operations Monday to Saturday during the extended hours:

1. both double roller doors on the western side of the ‘Euro Marble’ building leading to the rear yard must be shut;

2. there must be no unloading or other activities, such as operating forklifts and palate tracks in the rear storage yard located on the north-western, west and south-western sides of the ‘Euro Marble’ building;

3. the sandblaster must not be used before 7AM and after 6PM;

4. the existing air inlet to the compressor room must be enlarged and fitted with acoustic louvers in line with the recommendations of the joint expert report; and

5. the dust extractor duct leading from the sandblaster must be fitted with an in-line attenuator with insertion loss performance in line with the recommendations of the joint expert report.

2. For operations on Sunday (all day):

1. both double roller doors on the western side of the ‘Euro Marble’ building that open to the rear yard must be shut;

2. there should be no unloading or other activities, such as the operation of forklifts and palate jacks in the rear storage yard located on the north-western, west and south-western sides of the ‘Euro Marble’ building; and

3. there shall be no sandblaster activity.

3. For operations on public holidays:

1. the noise control measures be the same as recommended for Sundays.

44. The Applicant confirmed that it accepted the conditions of consent proposed by the acoustic experts, and added that, in its opinion:

1. the proposed conditions of consent would provide the adjacent residential dwellings, located within the IN1 General Industrial zone, a level of acoustic amenity equivalent to that applicable to a residential zone; and

2. the proposed mitigation measures would achieve noise levels that would be better than those predicted within the joint report of the acoustic experts.

Conditions of consent

45. The parties agreed that the conditions of consent issued as part of development consent 18578 (originally granted on 16 June 1999 and modified on to April 2003 following a s 96 modification to development application 200200921) should be modified by the deletion of conditions 1 and 10 and their replacement by the following conditions:

1. Condition 1

2. “1. The development being carried out substantially in accordance with Drawing No 560/98 sheets 1 to 8 inclusive and details submitted to Council on 18 March 1999 with the application for development consent and as amended by the details submitted to Council on 30 December 2002 with the application under Section 96 of the Environmental Planning and Assessment Act the following conditions.

3. Reason: To confirm the details of the application as submitted by the applicant”

4. Condition 10

“(i)   The hours of operation being restricted to between the hours of 7.00 am to 6.30pm Mondays to Fridays, 7.00 am to 4.00pm Saturdays (Base Hours);

(ii)   Monday to Friday: from 6.00am to 7.00am; and

6.30pm to midnight; and

Saturday: from 6.00am to 7.00am; and

4.00pm to midnight; and

Sunday and Public Holidays: 6am to midnight

Collectively referred to as (Extended Hours)

(iii)    During the Extended Hours the following conditions apply:

- No more than 10 persons being present on the factory floor of the premises;

- The double roller doors on the Western Side of the factory leading to the rear yard shall be shut;

- No loading or unloading of vehicles; movement or interaction with stored marble and building materials; or any activity involving fork lift trucks and pallet jacks in the storage yard or located in the north western, west and south western sides of the building.

- The sandblaster will not be used;

(iv)    The existing air inlet to the compressor room must be enlarged and fitted with acoustic louvres as set out in the table below:

Octave Band Frequency (Hz)
63	125	250	500	1000	2000	4000	8000
Insertion Loss (dB)	0	2	6	17	19	16	12	8

(v)   The dust extractor duct leading from the sandblaster must be fitted with an inline attenuator with insertion loss performance as follows:

Octave Band Centre Frequency (Hz)
63	125	250	500	1000	2000	4000	8000
Insertion Loss (dB)	0	5	28	32	35	34	26	20

(vi)   No delivery vehicles entering or leaving the site between 6.30pm and 7.00am Mondays to Saturdays, with no deliveries being carried out on Sundays or Public Holiday. The operator of the premises being responsible to ensure that drivers of delivery vehicles associated with the use are fully aware of these requirements.

(vii)   No garbage vehicles servicing the site after 6.30pm and before 7.00am. All roller doors being kept closed at all times after 6.30pm, the gate to the car parking area being closed and locked after 6.30pm.

(viii)   The perimeter lightening on the north western, western and south western sides of the building must be maintained on a timer so as the lights automatically extinguish at 10 PM, except in response to movement detected with in the factory outdoor areas

(ix)   Noise emanating from the premises shall not exceed the following limits when measured or assessed at any point on a residential property as a Leq (15 minute) contribution, including any corrections for tonality, intermittency or impulsive characteristics in accordance with Chapter 4 of the EPA’s Industrial Noise Policy:

Monday to Saturday
Day	58 dB(A)
Evening	47 dB(A)
Night (10 PM to midnight)	42 dB(A)
Night (6 AM to 7 AM)	48 dB(A)
Sunday
Day	42 dB(A)
Evening	44 dB(A)
Night (10 PM to midnight)	39 dB(A)
Night (6 AM to 8 AM)	42 dB(A)

(x)    Noise emanating from the premises during the period of 10pm to 7am the following morning (or 8am on Sundays or Public Holidays) shall not exceed the following limits when measured or assessed outside any bedroom window on any residential property as a L1(1 minute) level:

Monday to Saturday
Night (10 PM to midnight)	52 dB(A)
Morning (6 AM to 7 AM)	58 dB(A)
Sunday
Night (10 PM to midnight)	49 dB(A)
Morning (6 AM to 8 AM)	52 dB(A)

Reason: to adopt acoustic measures required to protect neighbouring properties from excessive noise.”

Conclusion

46. Based on the above, I conclude that the application for modification to the operating hours of the ‘Euro Marble’ business at Marrickville should be approved subject to the addition of conditions of consent discussed above and as recommended by the acoustic experts.

Orders

47. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to modify the conditions of consent granted under Determination 200200921 (Annexure ‘A’) to reflect the modified conditions of consent attached as Annexure ‘B’.

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

……………………….

Michael Chilcott

Commissioner of the Land and Environment Court of NSW

Annexure A (Original consent as modified April 2003) (231 KB, pdf)

Annexure B (C) (292 KB, pdf)

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Decision last updated: 27 September 2017