DSK Kitchens and Furniture Pty Limited v City of Botany Bay Council

Case •

[2015] NSWLEC 1509

•

04 December 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: DSK Kitchens & Furniture Pty Limited v City of Botany Bay Council [2015] NSWLEC 1509
Hearing dates:30 November 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Jurisdiction:Class 1
Before: Tuor C
Decision:

Appeal No. 10410 of 2015
1. The appeal is upheld;
2. Modification Application No. 1997/160/02 to modify Development Consent No. 1997/160 for the erection of an industrial building, associated landscaping and car parking and its use for the manufacture of domestic kitchen furniture, wardrobes and bathroom vanities at 1515 Botany Road, Botany, is determined by approving the modifications set out in Annexure A;
3. As a consequence of order (2), Development Consent No. 1997/160 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and
4. The exhibits are returned.

 Appeal No. 10422 of 2015
1. The appeal is upheld;
2. Pursuant to section 149F(3) of the Environmental Planning and Assessment Act 1979 the Respondent is to issue a building certificate for the dust extraction and collection system installed by the Applicant at 1515 Botany Road, Botany. The building certificate is subject to the conditions that:
i. the dust extraction and collection system enclosure and associated screening, in modification application 1997/160/02, approved by the Court with conditions in Appeal No. 10410 of 2015, is constructed within three months of the date of the orders in Appeal No. 10410 of 2015, and
ii. the dust extraction and collection system operates in accordance with the conditions of consent in 1997/160/02; and
3. The exhibits are returned.
Catchwords: DEVELOPMENT CONSENT: modify development consent to permit dust extraction and collection system. Noise impacts. (Appeal 10410 of 2015).
BUILDING CERTIFICATE: dust extraction and collection system. Noise impacts. (Appeal 10422 of 2015)
Legislation Cited: Environmental Planning and Assessment Act 1979
Botany Bay Local Environmental Plan 2013
Category:Principal judgment
Parties:

DSK Kitchens & Furniture Pty Limited (Applicant)

  City of Botany Bay Council (Respondent)
Representation:

Counsel:
Mr R Notley, barrister (Applicant)

  Solicitors:
Ms K Healey of GH Healey & Co Lawyers (Applicant)
Mr S Shneider of Houston Dearn O’Connor (Respondent)
File Number(s):10410 of 2015 and 10422 of 2015

Judgment

  1. COMMISSIONER: These are two related appeals against the refusal by the City of Botany Bay Council (council) of an application under s96(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent 97/160 (Development Consent) and an application for a Building Certificate under s149 B of the EPA Act. Both applications seek to ratify the instillation of a dust extraction and collection system (the system), which has been installed without consent at 1515 Botany Road, Botany (site). The parties agreed that the appeals be heard concurrently.

  2. Appeal No 10410 of 2015 relates to the application to modify the Development Consent, which was approved by council on 18 February 1997. The Development Consent approved the “erection of an industrial building, associated landscaping and car parking and its use for the manufacture of domestic kitchen furniture, wardrobes and bathroom vanities”. The Development Consent was subject to conditions, which include noise criteria (Condition 7) and hours of operation between 7.30am and 6.30pm Monday to Friday and 7am to 4pm on Saturdays (Condition 32). The modification application seeks to amend the Development Consent to permit the system. The application was amended during the hearing to provided enclosure of the system and landscaping on the site.

  3. Appeal No. 10422 of 2015 relates to the Building Certificate application for the existing system (but not the proposed enclosure of the system).

  4. The key contention in the proceedings relates to the noise generated by the system and the impact on the amenity of the residents at 1525 Botany Road. With the amendments to the plans, council did not press its contentions regarding streetscape and landscaping and provided no evidence other than on acoustic mattes.

The site and its context

  1. The site is located on the eastern side of Botany Road. It is irregular in shape with an overall area of 1261sqm. The site is developed with a two storey industrial building which is used as a joinery manufacturing business.

  2. The surrounding locality is a mixture of industrial, commercial and residential land uses. Adjoining the site to the north and south are mixed commercial/industrial buildings (1511 and 1521 Botany Road). To the east (rear) of the site, are three residential dwellings which front Rochester Street (7, 9 and 11 Rochester Street). To the south east of the site, the rear of a residential dwelling (1525 Botany Road) adjoins the site.

Planning Framework

  1. The site and adjoining land is within the B4 Mixed Use zone under Botany Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

  1. Botany Bay Development Control Plan 2013 (DCP) includes General Aims and Objectives (Part 1) and Objectives for Botany Road (Part 9B.4.1.1) which seek to minimise land use conflict between residential and non- residential uses.

Background and application

  1. The background to the proposal and each appeal is set out in detail in the Statements of Facts and Contentions filed by the council on 13 July 2015, and the applicant’s Statements of Facts and Contentions filed on 27 July 2015.

  2. In summary, the system was installed outside the south west corner of the existing building in about December 2012. The system has been amended since its instillation, and currently consists of a dust extraction fan located inside the factory with ducting leading outside the building to an external suction fan and dust collection bin. The fan, motor and dust collection bin are housed in a 6.5m high, 2.4m deep and 1.5 m wide structure.

  3. The s96 application was lodged on 8 November 2013 and refused by council on 6 February 2015. Appeal 10410 of 2015 was filed on 13 May 2015.

  4. The s96 application, as amended, seeks approval for the system and to construct a structure around the system to mitigate the noise impacts and presentation of the structure to the streetscape as well as landscaping.

  5. The Building Certificate application was lodged on 20 March 2013 and refused by council on 25 February 2015. Appeal 10422 of 2015 was filed on 18 May 2015.

Evidence

  1. The hearing commenced with a view of the site and surrounding properties. The Court heard evidence from the owner of 1525 Botany Road and his sons. The objectors explained the noise, its duration and the impact it had on their residential amenity and health. They considered that the noise was unacceptable and occurred more often, for longer periods and outside the approved hours of operation of the factory. An acoustic report prepared by Koikas Acoustics in December 2013, on behalf of the objectors, was tendered into evidence.

  2. The Court heard expert acoustic evidence from Mr D Albanese, for the applicant, and Mr B Murray, for the council. The experts agree:

  • the noise source is the inlet fan to dust extraction system and that the inlet fan operates for 5-8 seconds every 30 minutes while the factory operates;

  • the appropriate noise assessment location is the rear yard of 1525 Botany Road within 2m of the kitchen window and inside the kitchen;

  • the current operation of the inlet fan results in a noise level of 60dBA in rear yard. Mr Murray states that the level is 62dBA for 2 seconds of operating time;

  • the background noise levels in the rear yard during the day are 48-50dBA.

  • the noise complies with an assessment according to the Industrial Noise Policy (Noise Policy), the DCP and the condition in the Development Consent;

  • a qualitative assessment of offensive noise according to Noise Guide for Local Government - Checklist of Considerations (Noise Guide) the noise is considered “offensive” in the rear yard and in the kitchen;

  • the noise reduction objective is to reduce the overall noise by l0dB in the rear yard and in the kitchen which would eliminate the offensiveness.

  1. Mr Albanese and Mr Murray examined the proposed amendments to enclose the system and agreed that these would achieve the noise reduction objective of 10dBA and would not be “offensive” noise under the Noise Guide. A solid wall at the western elevation of the enclosure rather than the proposed louvred screen would reduce the noise by a further 2dBA, resulting in an overall reduction of 12dBA. Plans which incorporated this change were filed on 1 December 2015. The experts agreed that a condition (condition 7A) should be imposed that the operation of the dust extraction system inlet fan when assessed from 1525 Botany Road should not give rise to an equivalent continuous (LAeq) sound pressure level of greater than 52dBA.

  2. While Mr Murray agreed that with these measures the noise would not be “offensive” it may not satisfy the objector’s concerns due to his sensitivity to the noise from the system. Mr Murray considered the proposal to be reasonable and accepted that there were practical constraints to placing the system inside the building and that there would be marginal benefits as the dust fan would still be above the roof, but could be attenuated with an inlet duct.

Findings

  1. The system was installed on site without consent in about December 2012 and resulted in noise impacts to 1525 Botany Road. Changes to the system have subsequently been made and its current operation complies with the relevant criteria in the Noise Policy, the DCP and the noise condition in the Development Consent. However, the experts have agreed that the existing noise is “offensive” in the rear yard and in the kitchen of 1525 Botany Road based on a qualitative assessment of the noise in accordance with the Noise Guide. They have recommended that the noise be reduced by 10dBA and that this can be achieved by enclosure of the system. With these changes the experts agree that the noise would not be “offensive”.

  2. The amended plans in the s96 application and a further change to the front wall would reduce the noise by 12dBA. I accept the experts’ evidence that the proposal, as amended, is reasonable and would not result in noise that is offensive to most people. The Noise condition proposed in Condition 7A will limit the noise to generally background level and requires monitoring of the noise to demonstrate compliance with the criteria. Proposed Condition 7B requires that the operation of the system must cease until further attenuation measures are provided, if the monitoring indicates that compliance with the noise criteria are not achieved.

  3. The building certificate relates to the existing system and is subject to conditions that the enclosure must be constructed within three months of the order and must comply with the conditions of consent for the s96 application.

  4. The noise level of the system will be significantly reduced through the enclosure proposed in the s96 application. The system would still be audible and the owner of 1525 Botany Road may maintain his concern that it impacts on his amenity. However, under objective assessment criteria and based on expert evidence the system, as amended, is acceptable.

  5. I acknowledge the objector’s concern that the system was constructed without consent and has resulted in “offensive” noise. He has had the expense of paying for an acoustic report and there has been considerable stress to him and his family. However, it is open to the applicant to seek approval for the system under s96 and through a Building Certificate. Based on the expert evidence before the Court, the proposed changes to the system will reduce the noise to an acceptable level and, these applications may therefore be approved on their merits.

Orders

  1. The orders of the Court are:

Appeal No. 10410 of 2015

  1. The appeal is upheld;

  2. Modification Application No. 1997/160/02 to modify Development Consent No. 1997/160 for the erection of an industrial building, associated landscaping and car parking and its use for the manufacture of domestic kitchen furniture, wardrobes and bathroom vanities at 1515 Botany Road, Botany, is determined by approving the modifications set out in Annexure A;

  3. As a consequence of order (2), Development Consent No. 1997/160 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and;

  4. The exhibits are returned.

Appeal No. 10422 of 2014

  1. The appeal is upheld;

  2. Pursuant to section 149F(3) of the Environmental Planning and Assessment Act 1979 the Respondent is to issue a building certificate for the dust extraction and collection system installed by the Applicant at 1515 Botany Road, Botany. The building certificate is subject to the conditions that:

  1. the dust extraction and collection system enclosure and associated screening, in modification application 1997/160/02, approved by the Court with conditions in Appeal No. 10410 of 2015, is constructed within three months of the date of the orders in Appeal No. 10410 of 2015, and

  2. the dust extraction and collection system operates in accordance with the conditions of consent in 1997/160/02; and

  1. The exhibits are returned.

Annelise Tuor

Commissioner of the Court

10410 of 2015 Annexure A & B (49.3 KB, pdf)

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Decision last updated: 04 December 2015

Citations

DSK Kitchens and Furniture Pty Limited v City of Botany Bay Council [2015] NSWLEC 1509

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