Creed v Strathfield Council

[2006] NSWLEC 497

Land and Environment Court

of New South Wales

CITATION:	Creed v Strathfield Council [2006] NSWLEC 497
PARTIES:	Applicant: Robert Creed Architects Respondent: Strathfield Municipal Council
FILE NUMBER(S):	10937 of 2005
CORAM:	Roseth SC - Brown C
KEY ISSUES:	Contaminated Land - Development Application :- impact of odours, noise and vibration
DATES OF HEARING:	02/08/2006 and 03/08/2006
DATE OF JUDGMENT:	08/15/2006
LEGAL REPRESENTATIVES:	Applicant: Mr A Galasso, barrister instructed by Mr N Kerz of Milad S Raad & Associates, solicitors Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC with Brown C

15 August 2006

10937 of 2005 Robert Creed Architects v Strathfield Municipal Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal of Development Application No: 0304/419 by Strathfield Municipal Council (the council) for the construction of a multi-unit housing development at 78 Marlborough Road. Homebush West (the site).

The site

2 The site comprises Lot 1 in DP 883809, Lot 2 in DP 881461 and Lots 49, 52-54 in DP 11427. It is crescent-shaped with a total area of 6.9 hectares. The site is currently vacant with no vegetation and recent landfill and earthworks.

3 The Main Western Railway Line is located to the south, the Olympic Park rail line to the west and industrial development generally to the north and part of the eastern boundary. A rehabilitated putrescible waste and chemical disposal tip (the tip site) adjoins part of the northern and eastern boundaries. Residential development in Courallie Avenue adjoins the site’s access from Marlborough Road. The southern part of the site is subject to a high voltage electricity transmission easement.

The proposal

4 The applicant seeks approval for Stage 1A, being the first of five stages. This stage provides for:

· 72 apartments contained within four-storey buildings plus attics,

· offices, cafe, corner store and commercial facilities,

· 14 semi-detached residences,

· 9 detached residences,

· entrance gateway,

· main access road,

· all service infrastructure,

· stormwater detention,

· associated landscaping, and

· noise barriers.

Relevant planning controls

5 The Strathfield Planning Scheme Ordinance (the PSO) zones the site Residential 2(b). Multi-unit housing is permissible with consent within this zone. Clause 32 provides general matters for consideration in the determination of development applications, cl 41B provides requirements for development within residential zones and cl 41C provides requirements for development adjoining residential zones. Clause 61J provides specific requirements for the site by allowing, with some restrictions, convenience stores, shops and recreational facilities. The PSO provides no relevant development standards.

6 Draft Strathfield Local Environmental Plan 2003 (the draft LEP) is a relevant matter for consideration as it has been placed on public exhibition. The council accepts that the draft LEP is not imminent or certain and as such should not be given weight in proceedings.

7 Development Control Plan No. 25 – 79 Courallie Avenue, Homebush West (DCP 25) applies. It is a site-specific development control plan and provides objectives (Part A), planning principles (Part B) and development concept and controls for the development of the site (Part C) including a Conceptual Site Layout.

The issues

8 The council filed a Statement of Issues containing 11 individual issues. These can be grouped into the following main areas:

1. whether the proposed development will have an unacceptable visual impact, provide inadequate community facilities and have inadequate deep soil planting (Issues 1, 6 and 10);

2. whether the proposed development will unacceptably impact on future residents by way of noise and vibration (Issue and 2);

3. whether the proposed development provides adequate parking, generates unacceptable increased traffic on local roads, and internal access (Issues 3, 4 and 5);

4. whether the site has been adequately remediated for residential use (Issue 9); and

5. whether the adjoining tip site will unacceptably impact on future residents by way of odours and noise (Issue 8).

9 The public interest (Issue 11) is addressed as part of the above issues.

The objector’s evidence

10 Ms Laura Leonoff of 69 Courallie Ave, an objector to the proposed development, gave evidence on site. In her opinion the site was unsuitable for the proposed residential development because of the likely health problems from the existing site contamination and proximity to the tip site. Ms Leonoff told the Court of her recent experiences with odour that made her leave her house during the day after heavy rain when the odour was strongest. In addition, the traffic generated by development would impact on the nearby local streets and exacerbate the already difficult vehicular access to the area.

11 Whatever one may think about the use of this site for housing, that was a decision that the council and the Minister took when the site was rezoned, and the Court cannot re-visit the decision. As regards Ms Leonoff’s other concerns, the Court asked the relevant experts to comment on them. The conditions of consent described below meet her concerns to some extent.

The evidence

12 The parties agreed to the Court appointing the following experts:

· Mr Gary Shiels – town planning,

· Mr Stephen Gauld – noise and vibration.

· Mr Craig Hazell – traffic and parking,

· Mr Chris Jewell – land contamination, and

· Dr Kerry Holmes – odour and air quality.

13 All the experts provided written reports that addressed the issues raised by the council. In all cases, they concluded that the proposed development was acceptable, albeit with minor amendments. The applicant incorporated these amendments in amended plans, while the council incorporated them in conditions of consent. Mr Seton, the advocate for the council, submitted that the council accepts the Court-appointed experts’ findings. The applicant accepted the council's draft conditions of approval, including those flowing from the experts’ recommendations. While there was no request for consent orders, in effect there was no dispute between the parties.

14 Despite the fact that the parties agreed on all issues, it is appropriate that we include in this judgment the reasons for the experts’ conclusions.

Town planning issues

15 The town planning issues related to the visual impact, when viewed externally from the railway, the lack of community facilities and the non-compliance with the DCP 25 requirement for deep soil planting. Mr Shiels also raised his own issue, namely that the proposal provided inadequate areas for pedestrian movement in some locations.

16 In Mr Shiels’ opinion, the general form of the building, when viewed from the rail line, would look acceptable, although additional consideration should be given to the colour and materials of the acoustic fence and landscaping. Based on the site inspection and the application plans, we agree with Mr Shiels that the visual impact from the rail line is acceptable. Therefore cl 32 of the PSO is adequately addressed. We note that the applicant has agreed to plant canopy trees along the fence during the first stage. When these trees exceed the 3 m height of the acoustic fence, the visual appearance from the rather line will be improved. We also note that State Rail have specific requirements for the acoustic fence adjoining their property.

17 The issue of community facilities relates to the provision of childcare facilities. Mr Shiels states that DCP 25 and the council’s s 94 Plan do not require an in-kind or monetary contribution for childcare facilities. We accept Mr Shiels conclusion that there is no justification to require the development to include childcare facilities.

18 Clause 3.2.7(c) of DCP 25 requires the provision of at least 35% of the landscaped area as deep soil planting. Mr Shiels’ original concern was the lack of detail to allow this to be assessed. During the proceedings the applicant provided further details, which showed that 37.2% of landscaped area was deep soil planting. On that basis Mr Shiels accepted that the proposal complies with the requirements in cl 3.2.7(c), and we also accept it.

19 While the council did not raise the matter as an issue, Mr Shiels noted that part of the townhouse component of the proposed development did not provide a clear definition between the public and private domain. In his opinion this would create unsafe conditions for pedestrians. The applicant produced amended plans that provided a 1m footpath and an additional setback for the dwellings allowing for the parking of a vehicle in front of the garages without encroaching on the road reserve. Mr Shiels and Mr Hazell agreed that the amended plans (Drawings DA00.01 and DA00.02 Revision E) addressed their concerns. We concur with their conclusions.

Noise and vibration

20 Mr Gauld identified noise and vibration from the rail line, noise from the adjoining industrial premises and future noise from traffic and mechanical plant as the sources of potential impact. He took measurements at the site and also relied on an acoustic report prepared for the applicant.

21 Mr Gauld tested noise from the rail line against the document "Guidelines for applicants - Consideration of Rail Noise and Vibration in the Planning Process" (Rail Infrastructure Corporation 2003). He assessed the effect of both passenger and freight trains. While he found that the appropriate noise criteria were exceeded, the level of noise could be reduced to an acceptable level through the erection of a 3m acoustic barrier along the rail corridor and the use of special glass in windows and doors near the rail line. Provision should be made for adequate ventilation for rooms near the rail line, so that occupants can leave windows closed.

22 Mr Gauld tested vibration from the rail line against the Rail Infrastructure Corporation’s publication "Guidelines for applicants - Consideration of Rail Noise and Vibration in the Planning Process" (2003) and British Standard BS 6472: 1992 "Evaluation of Human Exposure to Vibration in Buildings (1 Hz to 80 Hz)". He found that train vibration for freight trains is below the acceptable vibration level. Moreover, the location of the nearest facade of the Stage 1 development will be further away from the railway line than the measured location and therefore ground-borne vibration is likely to be lower.

23 Mr Gauld tested noise from adjoining industrial buildings against the Department of Environment and Conservation’s publication "Noise Guide for Local Government" (June 2004). While he found that the appropriate noise criteria were exceeded, the level of noise could be reduced to an acceptable level through the use of special glass in windows and doors in rooms with a direct view of the industrial premises.

24 Based on assessment of traffic levels from the applicant’s traffic report and following discussions with Mr Hazell, Mr Gauld concludes that the main impact from traffic will occur on the access road as traffic enter and leave the site. As Stage 1 would generate 45 vehicle trips per hour in the morning and afternoon peaks at speeds of 50 kilometres per hour, noise associated with traffic is not an issue. However, a roadside noise barrier will be required on the northern side of the access road once traffic flows reached approximately 100 vehicle trips per hour.

25 No details were provided on the mechanical plant associated with the proposed development. Mr Gauld states that it is both reasonable and feasible to set the noise criteria at 47 dBA in the day and evening, and 43 dBA at night for any mechanical plant.

26 Condition 117A requires all mechanical plant proposed as part of the development including (but not limited to) air conditioning condensers for residential and commercial premises, exhaust fans, lift plant, roller doors and garbage room equipment to have a maximum Leq(15 min) noise emission of 47dBA between 7.00am and 10.00pm and 43dBA between 10.00pm and 7.00am.

27 Condition 117B(a) requires the Leq noise level inside sleeping areas and living areas not to exceed the criteria specified in 127(d)(ii). Condition 117B(b) requires the building facades outside living and sleeping rooms to be upgraded by the use of appropriate sound rated glazing in windows and sliding doors to reduce the impact of industrial noise emanating from the land adjacent to the land subject of this development consent. Condition 117B(c) requires other sound transmission paths including ventilation paths, walls, roof and doors to be upgraded to achieve the internal noise criteria in 117B(a) above.

Traffic and parking

28 Mr Hazell addressed whether the development will result in an unacceptable increase in traffic on local roads and whether the number of car parking spaces is adequate. He evaluated the traffic impact assessment prepared for the applicant. He describes the previous assessment as "sound".

29 He states that the traffic generating rates in the RTA "Guide for Traffic Generating Uses" provides for 60 vehicle trips, including 7 vehicle trips for the commercial/retail component. With all of the traffic entering and leaving via the loop road serving Centenary Drive, the intersection with the access road to the proposed development and the loop road will operate at a very good level of service with minimal delays. Overall, Mr Hazell states that the proposed development will not have an unacceptable impact on the surrounding road network.

30 DCP 25 requires the provision of 133 car parking spaces. The proposed development satisfies the DCP 25 requirements for the townhouse component of the proposed development, each providing a double garage. The car parking provision for the 68 units and commercial/retail component, however, does not comply with DCP 25. Compliance would require 133 spaces whereas the proposal provides for 87 spaces, resulting in a shortfall of 46 spaces.

31 Mr Hazell states that the basement carpark provides for 56 residential spaces and 30 visitor and commercial/retail spaces. Of these spaces, the 28 stacked spaces (i.e., 14 x 2 spaces) can only be provided for 14 units. Therefore only 28 spaces are available for the remaining 54 units. If one parking space is allocated to each unit in the basement area (including visitor and commercial/retail spaces) only 4 spaces will be available for visitors for the units and commercial/retail area.

32 The applicant proposes to provide for the parking shortfall on the street, although the plans provide for only 23 spaces. If a total of 28 spaces are provided on street, Mr Hazel considers the parking to be acceptable as visitors to the residential units and commercial/retail uses are likely to park on the street. Moreover, the 115 car parking spaces (including those 28 spaces on-street) exceed the minimum requirement of the RTA. Condition 10 of the consent requires a minimum of 28 on-street parking spaces to be provided.

Land contamination issues

33 This issue relates to the effectiveness of the management system to control leachate on the tip site and whether the site remediation has been to a state that makes it suitable for the proposed development.

34 Part of the site was previously used for the manufacture of bricks, using weathered shale quarried from an adjacent site. Part of the site was also used for the manufacture of chemicals and material storage in association with the railway. A range of contaminants of potential concern has been identified as occurring on the site.

35 The tip site was used for quarrying. When quarrying ceased, the peak was back filled with waste materials, including putrescible and chemical waste. The waste within the pit is now saturated with water. As a result of waste degradation, landfill leachate and gases are generated. A leachate and gas management system has been installed to control the leachate and remove odorous materials from the gas.

36 For the site of the proposed development, site audit reports and statements have been issued for all three lots. At the time the site audits were commissioned there was no statutory requirement for the audits and they were carried out as non-statutory audits. Mr Jewell has reviewed the non-statutory site audits and concludes that they should be accepted. Based on his inspection of the site and the documentation available to him, nothing indicates that the condition of land, with respect to contamination, has changed significantly since the site audit statements were issued. In his opinion, the land the subject of the development application has been remediated to a state suitable for the proposed development.

37 Mr Jewell recommends that, because of the existence of non-statutory audits, statutory site audits be required as a condition of consent and for the audits to be endorsed by the auditor for statutory purposes. He further recommends that the existence of the site audit statements be notified on s149(2) and (5) certificates issued by the council. Mr Jewell also recommends further conditions of consent relating to soil excavation and further sampling.

38 To address any potential impact of leachate from the tip site, Mr Jewell recommends that the excavation be staged to minimise the area exposed any one time. He also recommends that geotechnical investigations be carried out before excavation for the stormwater detention tanks, that these investigations specifically address the issue of groundwater inflow, and that any groundwater inflow be analysed for leachate components.

39 Condition 134 provides that:

All contracts for sale of any part of the land shall contain a disclosure to the following effect:
(a) the adjoining land being lot 2 in DP879285, which is known as the “Ford Tip Site” is a former quarry pit, which was filled with waste materials including putrescible waste and chemical wastes. A leachate and gas management system has been installed on Lot 2 in DP879285 that is managed on behalf of the owner. The purpose of the leachate management system is to prevent overflow of leachate from Lot 2 in DP879285. The primary purpose of the gas management system is ti remove odorous materials from the landfill gas that is generated on Lot 2 in DP879285. Despite the installation of the gas management system on Lot 2 in DP879285 the land may be a source of detectable odours from time to time .
(b) The purchaser shall not be entitled to raise any objection, requisition or claim arising from the conditions referred to in subparagraph (a).

40 Condition 135 provides that:

Prior to the issue of any occupation certificate for development on the land a covenant to the following effect shall be registered on the title of the land and the title of any lot into which the land is subdivided unless the Registrar General refuses to register a covenant to such effect:
(a) this lot shall not be sold or transferred unless the relevant contract or agreement for sale contains a disclosure to the following effect:
“ the adjoining land being lot 2 in DP879285 which is known as the “Ford Tip Site” is a former quarry pit that was filled with waste materials including putrescible waste and chemical wastes. A leachate and gas management system has been installed on Lot 2 in DP879285 that is managed on behalf of the owner. The purpose of the leachate management system is to prevent overflow of leachate from Lot 2 in DP879285. The primary purpose of the gas management system is ti remove odorous materials from the landfill gas that is generated on Lot 2 in DP879285. Despite the installation of the gas management system on Lot 2 in DP879285 the land may be a source of detectable odours from time to time” .

41 Condition 136 provides that

During excavation any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination shall be notified to the Council and the Principal Certifying Authority immediately.
(a) Site water discharged from the site must not exceed suspended solid concentrations of 50 parts per million, and must be analysed for pH and any contaminants of concern identified during the preliminary or detailed site investigation, prior to discharge to the stormwater system. The analytical results must comply with relevant Environmental Protection Authority and ANZECC standards for water quality.
(b) Other options for the disposal of water from excavations include disposal to sewer with the prior approval from Sydney Water, or off-site disposal by a liquid waste transporter for treatment/disposal to an appropriate waste treatment/processing facility.

42 Condition 136A provides that:

Any soil excavated from below a depth of 0.5 metres shall be segregated and shall not be mixed with soil from above that level.

43 Condition 136B provides that

(a) Prior to re-use on site for any purpose, soil excavated from below a depth of 0.5 metres shall be visually examined for the presence of asbestos-containing materials, gross contamination, containers or any other deleterious material. Such soil shall also be sampled at a minimum frequency of one sample per 25 cubic metres.
(b) Samples shall be obtained and analysed under a quality assurance/quality control regime that complies with the minimum standards set out in Appendix V of Guidelines for the NSW Site Auditor Scheme 2nd edition (NSW Department of Environment and Conservation 2006).
(c) Samples shall be analysed for the presence of:
heavy metals (arsenic, cadmium, chromium, copper, lead, mercury, nickel and zinc)
total petroleum hydrocarbons
benzene, toluene, ethylbenzene and xylenes
polycyclic aromatic hydrocarbons
organochlorine pesticides
polychlorinated biphenyls
phthalate esters
asbestos
(d) Soil that contains any asbestos fibres or concentrations of hydrocarbons in excess of threshold concentrations for sensitive land use – soils (NSW EPA 1994) or concentrations of other substances in excess of the Column 1 or Column 5 Soil Investigation Levels for urban development sites in NSW (DEC 2000) shall not be re-used in the site.

44 Condition 136C provides that:

Soil that is not re-used on site shall be classified and managed in accordance with Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (EPA 1999) and the waste regulations under the Protection of the Environment Operations Act 1997 as in force at the time.
Odours and noise from tip site

45 Dr Holmes concluded that the gas collection and leachate treatment were an appropriate method of controlling the impacts of landfill sites undergoing management and remediation. It is possible for this type of management to take place without substantially compromising surrounding land use and development. The audits and management of the tip site support the view that there will not be objectionable odours on the subject site, though it is possible that the visibility of leachate and gas treatment plant may cause future residents to perceive an odour problem. For that reason it would be beneficial to screen the plant from view by landscaping.

46 Despite the above, there can never be a guarantee that future residents will never experience any odours from the tip site. She recommended therefore that purchasers be alerted to this possibility. Condition 135 in paragraph 40 above gives effect to this recommendation.

Conclusion

47 Since the parties reached agreement on all expert issues as well as the conditions of consent, there is no impediment to the Court granting its consent.

Orders

1. The appeal is upheld.

2. Development Application No: 0304/419 by Strathfield Municipal Council (the council) for the construction of a multi-unit housing development at 78 Marlborough Road. Homebush West is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except for Exhibits A, B and O.

_________________ _______________
Dr J Roseth G T Brown
Senior Commissioner Commissioner of the Court