Ganellen Pty Limited v North Sydney Council
[2012] NSWLEC 1344
•14 December 2012
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Ganellen Pty Limited v North Sydney Council [2012] NSWLEC 1344 Hearing dates: 6-7 December 2012 Decision date: 14 December 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld in part
Catchwords: Modification application, hours of construction work Legislation Cited: North Sydney Local Environmental Plan 2001 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Texts Cited: Interim Construction Noise Guideline Category: Principal judgment Parties: Ganellen Pty Limited (Applicant)
North Sydney Council (Respondent)Representation: Mr M Staunton (Applicant)
Mr A Pickles (Respondent)
Mr C Drury
Solicitors
Ms A Waters
Gadens Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s): 10759 of 2012
Judgment
Ganellen sought approval from North Sydney Council to modify conditions of consent relating to construction hours as approved under Development Application No. D47/11 (consent) so as to increase the hours of work. The council refused the application and Ganellen is appealing that decision.
The contentions in the case are whether the extended hours will adversely impact the amenity of neighbours, if there is to be an impact, whether allowing increased hours so as to reduce the overall construction time will offset those impacts and whether there will be adverse impacts on traffic and parking in the vicinity of the development.
Background and the proposal
The consent was granted by the Sydney East Joint Regional Planning Panel on 6 July 2011 and took effect on 8 July 2011. It authorised demolition, consolidation of allotments and construction of a 22 storey mixed use building above basement parking comprising commercial tenancies including a restaurant, 193 units, landscaping, a through-site-link and roof level communal facilities including a gym and swimming pool.
The works approved under the consent have been commenced and the basement levels and 6 floors of the building's superstructure have been completed.
Conditions E9 and E10 relate to construction hours and read as follows:
E9. Building construction shall be restricted to within the hours of 7.00am to 5.00pm Monday to Friday and on Saturday to within the hours of 8.00am to 1.00pm inclusive, with no work on Sundays and Public Holidays.
Demolition and excavation works shall be restricted to within the hours of 8.00am to 5.00pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).
The builder and excavator shall display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.
(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community)
E10. Where it is necessary for works to occur outside those hours allowed by these conditions, approval for such will be subject to issue of a permit on each occasion from Council's Customer Services Centre. Such permit must be obtained and the appropriate fee paid at least two (2) clear working days in advance of each relevant date. Such occurrence shall be limited to two occasions per calendar month and shall only be approved if public safety or convenience is at risk. Any further variation shall require the lodgement and favourable determination of a modification application pursuant to Section 96 of the Environmental Planning and Assessment Act 1979.
(Note: Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued, or Council pursuing any action required (including legal proceedings) to have the out of hours work cease, without prior warning.)
In accordance with the provisions of condition E10, Ganellen is seeking to modify condition E9 to extend the construction hours by an additional hour on weekdays, that is, until 6pm Monday to Friday and to allow works on Saturday until 5 pm.
The condition sought to be imposed is the same as a condition of consent issued by the Minister for Planning and Infrastructure that applies to an adjoining site to the west, known as 3-11 Ward Street and 70-74 Berry Street, North Sydney. That consent authorised State Significant Infrastructure works to construct a new, large substation on behalf of Ausgrid and the condition reads as follows:
C4. With the exception of construction works associated with cable installation and the cable vault along Ward and Berry Streets as specified in condition C5, the Proponent shall only undertake construction activities associated with the project that would generate an audible noise at any sensitive receptor during the following hours:
Non-High Noise Generating Works
a) 7:00am to 6:00pm, Mondays to Fridays;
b) 8:00am to 5:00pm on Saturdays; and
c) at no time on Sundays or public holidays.
High Noise Generating Works (as identified in the CEMP)
a) 7:00am to 12:30pm and 2:30pm to 6:00pm, Monday to Fridays:
b) 8:00am to 12:00pm and 1:00pm to 5:00pm Saturdays; and
c) at no time on Sundays or public holidays.
The site and its context
The site is described as Lot 10 DP 1172857, is located on the western side of Walker Street, between Berry and McLaren Streets and is known as 136-142 Walker Street. The site is essentially rectangular in shape excluding a small protrusion at the end of Harnett Street at the rear (north-west corner) and has an area of 1740 sq m.
Directly to the north of the site at 144-150 Walker Street is a development site which is currently under construction in accordance with a consent issued by the council in 2010 that authorised partial demolition and alterations to heritage buildings and construction of an 8 level mixed use building with basement parking. A multi-level residential flat building is immediately to the north of that property and is known as No 45 McLaren Street.
To the east of the site on the eastern side of Walker Street are three storey residential flat buildings (No 173-177 Walker Street), a number of dwelling houses and to the south-east is Century Plaza, a multi-level residential flat building. The Ausgrid site, referred to at [7] is to the immediate west of the site fronting Ward Street and to the south of the site is an 11 storey commercial building.
Development in the further locality comprises a mix of commercial and residential buildings, generally with the residential buildings being to the north and east and the commercial buildings to the south and west.
Planning controls
The site is zoned Mixed Use under North Sydney Local Environmental Plan 2001 (LEP).
The surrounding locality comprises a mix of uses. Land to the north, south and west of the site is zoned Mixed Use. Land to the east is zoned Residential C.
The evidence
The hearing commenced on site and evidence was heard from two residents, both of whom reside in units at 45 McLaren Street. Their concerns go to the noise, traffic and parking impacts already being experienced as a result of the works and in particular, regular works outside the hours approved under the consent. They say their amenity is being adversely affected and the extended hours would increase that impact unreasonably. One objector did not take issue with the weekday extended hours however strongly objected to the Saturday afternoon hours proposed as she says the noise prevents her from entertaining visitors and using her verandah and outdoor spaces.
Expert evidence was heard from Mr B White and Mr S Cooper (acoustics), Mr C McLaren and Ms M Kemp (traffic) and Mr A Darroch and Ms L Huckstepp (planning).
During the proceedings and as a result of the joint conferencing that had been undertaken in preparation, the applicant proposed amendments to the application. These initially involved limitations on the types of construction works that could be undertaken during extended hours and then, on the second day of the hearing, were extended to limiting the period during which the extended hours would apply to June 29, 2013 and reducing the Saturday hours so that two additional hours were proposed with finishing time to be 3 pm. Mr Staunton, for the applicant, submits that the primary purpose of the extended hours is to allow the completion of the concrete structure of the building and that the additional hours are required to complete major concrete pours. He also indicated that his client would be prepared to accept a consent condition which provided for the timing of the arrival of the last concrete truck to the site, and based on the time taken to unload and finish work by 6 pm, submits that this should be 5.30 pm.
The acoustic experts agreed that, subject to the limitations as to the activities to be conducted within the extended hours and with the installation of appropriate acoustic screening and implementation of on-site management practices, in accordance with the report contained in Exhibit 3, the relevant noise criteria would be met between the hours of 5-6 pm Monday to Friday and 1-5 pm on Saturdays. There was however, no agreement on the extent of usage of the crane. The applicant contends that the acoustic screening to enclose the crane is such that it will allow use of the crane for all concrete pours and clean up including the movement of concrete pumps, concrete helicopters, skip bins, tools and the hoses used to pump concrete. The council says that this aspect of the clean-up was not assessed in the acoustic report and therefore, the crane use should not extend to any aspects not addressed in the report.
The experts prepared a list of activities that, if conducted in accordance with the limitations imposed, could be conducted during the extended hours. Mr Cooper said that despite this list, it would still be necessary to conduct compliance testing to ensure the noise levels were achieved at the appropriate residential receivers. Conditions of consent addressing the testing have also been proposed. The list of works includes:
- Use of the crane to assist with cleanup of concrete pump and site (other than as noted in [17] above);
- Completing of concrete pours;
- External ceilings (excluding mechanical tools);
- Hand painting of the external façade and internal painting using compressors only where they are fully enclosed within the building;
- Landscaping;
- Internal fit out involving waterproofing, tile screening, plasterboard, carpet laying and painting;
- Concrete pumps;
- Concrete trucks;
- Concrete vibrators;
- Concrete helicopters;
- Hoist;
- Steel fixing, post tensioners and site cleanup.
Use of equipment such as concrete saws, angle grinders, pneumatic or electric drills, cherry pickers and bobcats would be prohibited during the extended hours. In addition to the restrictions imposed, the condition imposes a maximum Leq noise level of not more than 10dB(A) above background between 5 and 6 pm and 5dB(A) on Saturdays.
Despite these conditions and the fact that the appropriate noise criteria will be met, both experts agree that the operation of the construction site will be audible at the residential receivers. Mr Cooper says that this is because the assessment of noise is an average noise level determined over a 15 minute period, by definition, the site will generate short-term noises that are greater than the Leq level and the individual noise sources do not generate a continuous noise. The individual noise levels greater than background +5dB(A) will have a subjective impact for residents that they do not experience if the site complies with the current consent conditions. This is evidence from the resident's submissions.
The traffic experts agreed that if on-site parking for 3 cars was provided between 5 and 6 pm and 10 cars on Saturdays from 1 pm to 5 pm, the parking demand generated by the site would be met. They also agreed that the traffic impact associated with the additional hours on Saturday would be acceptable however disagreed in relation to the impacts during the 5-6 pm peak period. Ms Kemp says that the time taken for a concrete truck to enter the site would be at least one minute and that, at the peak period, such disruption to traffic flow was not desirable and would impact on queuing lengths and delays at intersections. Mr McLaren disagreed and says the impact on queue length/flow is minor and would not extend to Berry Street.
Currently the council has before it an application to extend the construction zone in front of the site to accord to the extended hours sought by Ganellen. That application has been deferred pending the outcome of these proceedings and the Court is not being asked to consider that issue. For that reason, residents would, under current arrangements, have access to the parking in front of the site at 5 pm weekdays. There are no restrictions during weekends in the locality, which is within Area 22 of the council's resident parking scheme.
Ms Kemp says that any proposal that limits the availability of on street parking for residents is undesirable and Mr McLaren says that, provided the spaces for staff are available on site, no impact would occur as a result of the extended hours.
The planners agree that the hours sought are outside Council's standard construction hours and those hours, according to Ms Huckstepp's evidence are those included in condition E9 and reflect the suite of standard conditions used by the council. Rather than there being an official council policy document, she says that the conditions have been imposed as practice by council staff since the 1980s and 1990s. No evidence of any council resolution was tendered during the hearing. Exhibit 7 is an extract from the council's website which indicates construction hours that accord to those in condition E9 however, there is no reference to a formal policy of the council. Mr Darroch says that there is no such policy and for that reason, reference to any policy should be put no higher than the condition which council has become used to imposing on approvals.
The planning experts agreed that the construction hours between 5-6 pm weekdays are within the recommended standard hours specified within the Interim Construction Noise Guideline (Guideline) published by the Department of Environment & Climate Change in 2009 and referred to in Mr White's acoustic reports. They also agree the hours after 1 pm on Saturday are outside the hours of work recommended by the Guideline for general construction works.
Ms Huckstepp says that to significantly limit the use of machinery in order to comply with noise standards is not reasonable and would be difficult to enforce. She says surrounding residents have a reasonable expectation for a reprieve from construction noise after 5 pm and on Saturday afternoon. Mr Darroch says that because the planners agree that the extended hours would lead to a reduced construction time by some four months, the additional hours are appropriate in amenity terms. Ms Huckstepp says that this is not adequate justification for work outside standard hours, believes that a consistent approach should be applied to maintain an acceptable level of residential amenity and that the adverse amenity impact cannot be outweighed by a reduced construction period. She says that where the council has allowed works outside the standard hours, the type of works are those that are not audible outside the project site.
Mr Darroch says that it is not appropriate to apply standard hours across the whole of the North Sydney local government area submitting that there are quite different characteristics in the area with this site being of the fringe of the CBD and in close proximity to the Warringah Freeway making it unique in terms of the intensity of use of the surrounding area and the background noise profile. He cites the situation of having three major construction sites underway on three adjoining sites with two of the projects restricted to "standard" hours and the Ausgrid site permitted to operate for longer hours and says this factor merits approval of the application and is unlikely to set any precedent. Ms Huckstepp disagrees and says that because there are no unique circumstances, allowing the additional hours would create a precedent and that would lead to unreasonable impacts to residents of the locality.
Conclusion and findings
Having regard to the evidence, I am satisfied that the additional works, as detailed in the agreed conditions which limit the type of works to be conducted, proposed from 5 pm to 6 pm Monday to Friday can be carried out without adverse impacts to traffic, parking and residential amenity.
I do not accept that work on Saturday afternoon, even until 3 pm, is appropriate. In addition to the dispute between the parties as to the impacts of the use of the crane during clean-up operations, it is noted that the accumulative acoustic assessment for Saturdays indicates that the noise levels will, at Receiver 1, reach levels up to the noise goal. As the site is located on the edge of the North Sydney CBD and is directly opposite units/dwellings within a residential zone, the impacts of such high levels of noise are unreasonable outside usual construction hours. I accept Mr Cooper's evidence that the means of assessment are such that the noise goal will be exceeded at times over the 15 minute period and it is this fact, combined with the fact that the levels will reach the maximum permitted, that leads me to the conclusion that works on Saturdays beyond 1 pm should not occur.
Whilst the noise generated by the construction works could be controlled to comply with the appropriate noise standards, in these circumstances I do not consider that is sufficient. The noise, being of a different character to that experience during normal working hours, will still be audible from adjoining dwellings and is likely to affect the ability of residents to fully enjoy their home.
The evidence of Ms Noden is that she cannot enjoy her property, entertain on her verandah when the works are taking place and that, whilst she does not object to the extended hours during the week, she does seek to maintain the enjoyment of her property at weekends. I am not satisfied that, even with the restrictions offered by the applicant, the changes made warrant the intrusion into the weekends.
In relation to the council's "policy" for construction hours, I do not give it the weight of an official, well-researched and publicly consulted document as referred to by Mc Clellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, I do note that the council has imposed the hours on its consents for in excess of 20 years and, where variations are permitted, those variations only apply to the fitout of buildings and works that are inaudible from adjacent residential receivers. That condition for extended hours, an example of which was provided as Exhibit D, does not permit the extent of works proposed by the applicant and would not allow the major concrete pours that are the main reason the extended hours are sought.
The restricted hours reflected in the council's standard conditions are also consistent with the specific aims of the LEP that, as detailed in clause 3 in relation to non-residential development, are to minimise adverse effects of all permitted non-residential development and non-conforming uses or development. In addition, the objectives of the Mixed Use Zone include to encourage a diverse range of living, employment, recreational and social opportunities, which do not adversely affect the amenity of residential areas, and create interesting and vibrant neighbourhood centres with safe, high quality urban environments with residential amenity.
The hours allowed in the consent issued to Ausgrid accord to those outlined in the Guideline. There is no evidence that the council has adopted the Guideline in any manner. I distinguish the Ausgrid consent to that of the subject application in that it was for State Significant Infrastructure and the hours are consistent with those included in the Guideline.
I am also not satisfied that the shortening of the construction period justifies the amenity impacts of the extended hours during weekends. Any construction project would be completed earlier if longer hours were worked. There are no unique circumstances and in fact, the location of the site opposite a residential zone is such that it is appropriate to ensure the hours of work protect the amenity of the area. At the stage when the building structure has been completed, the council policy provides for a further application to be made to compete the building interiors. That is a matter for the applicant if it wishes to pursue that course however, it was not an issue that is the subject of the current application.
Subject to compliance with the limitations on the type of works and machinery/equipment to be used, I find that it is appropriate to allow the extended hours during weekdays only and accordingly the consent should be modified to reflect those conditions. There is no reason that the weekday extended hours are limited to the period ending June 2013. The conditions have been amended to reflect the findings of this judgment.
Compliance with conditions is an important expectation of the Court, consent authorities and residents and it is important that the applicant abides by those conditions and ensures that the works allowed are conducted in a manner that complies with the acoustic criteria. Accordingly, compliance testing must be undertaken and works brought into compliance if found to be in breach of the criteria.
The Orders of the Court are:
(1) The appeal is upheld in part.
(2) Development consent No. D47/11 is modified by amending condition E9 and inserting a new condition, condition E21 as follows:
E9. Construction Hours
(a) Building construction works shall be restricted to within the hours of 7am to 5pm Monday to Friday and to within the hours of 8.00am to 1.00pm Saturdays, with no work on Sundays and Public Holidays. For the purpose of this sub-clause 'Building construction' means any physical activity on the site involved in the erection of a structure, cladding, external finish, formwork, fixture, fitting of service installation and the unloading of plant, machinery, materials or the like.
(b) Additional construction works are permitted between the hours of 5pm to 6pm Monday to Friday and are limited to only the following construction activities:
- Use of the crane to assist with cleanup of concrete pump
- Completing of concrete pours
- External ceilings (excluding mechanical tools)
- Hand painting of the external façade and internal painting using compressors only after completion of the facade
- Landscaping
- Internal fit out involving waterproofing, tile screening, plasterboard, carpet laying and painting
- Concrete pumps
- Concrete trucks
- Concrete vibrators
- Concrete helicopters
- Hoist
- Steel fixing, post tensioners and site clean-up
The use of concrete saws, angle grinders, welders, pneumatic or electric drills, bobcats and cherry pickers are all strictly prohibited between 5pm to 6pm Monday to Friday.
All construction works carried out between 5pm to 6pm Monday to Friday, shall be subject to a maximum Leq noise level not more than 10dB(A) above the background sound level.
(c) The builder shall display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.
(d) A permanent register of all complaints received must be held by the applicant and provided to Council upon Council's request. Complaints shall be managed in accordance with the recommended Complaint Handling Procedure contained in the 'Noise and Vibration Impact Assessment Report for Proposed Extension Hours for Construction Work at 136-142 Walker Street, North Sydney', Revision 6 dated 18 October 2012, prepared by Acoustic Logic.
(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community and to comply with the schedule of works as submitted by the applicant)
E21. Construction Management - Noise and Vibration Impacts
During the hours of 5pm-6pm Monday to Friday, all construction works shall be subject to the detailed noise measurement and monitoring controls, and with the complaints procedures and actions, proposed and described by the applicant in the 'Noise and Vibration Impact Assessment Report for Proposed Extension Hours for Construction Work at 136-142 Walker Street, North Sydney', Revision 6 dated 18 October 2012, prepared by Acoustic Logic. In particular, the following shall be adhered to at all times:
1) Concrete pumps and trucks shall be located off Walker Street with no direct line of sight to the adjacent residential receivers of Walker Street. The gate accessing the site shall be closed during periods when pumping is in operation except for the entering and existing of trucks from the site. The gate accessing the site should be full height of solid construction (such as plywood) to a minimum height of 2.5 metres above ground level and shall have no gaps or openings.
2) Any compressors required to be operational during the said extended construction hours period shall be located within the project site with no direct line of sight to adjacent residential receivers.
3) Drills, welder, grinders, and concrete saws are not allowed to be used during the extended construction hours period.
4) Acoustic screening material shall be installed in the permanent scaffolding erected on the eastern side boundary facing Walker Street. The screening material should consist of loaded vinyl or used carpet. Adjacent layers of material are to be overlapped by a minimum of 50mm.
5) Slab pours shall start as close as practicable to Walker Street, and work progressively further away from the street in order to maximise the distance between the work area and the Walker Street residences in the event that slab finishing works continue after 5pm on Weekdays.
6) A three sided screen and bottom covering enclosure for the crane shall be constructed and maintained in place at all times. The screen is to be constructed from 15mm plywood lined or material with equal surface density with 50mm thick Tontine Acousticsorb 2.
7) In addition to the requirements of the preceding paragraph 6 of this condition E21 the following acoustic treatment shall be provided to the crane:
a) A screen to be constructed a minimum of 400mm above the height of the crane motor and radiator.
b) Additional treatment to the exhaust of the motor is to be installed in the form of a muffler or barrier, with an overall performance of reducing noise to surrounding receivers of no less than 5 dB(A).
9) A permanent acoustic screen shall be installed on the northern side of the concrete pump/truck bay. The acoustic screen is to be constructed using 9mm FC sheet or 15mm plywood with acoustically absorptive material facing the equipment. The screen is to be not less than 400mm above the top of the concrete pump or trucks.
10) There shall be no concrete pumps external to the site during construction works carried out between 5pm to 6pm Monday to Friday.
11) Upon arrival, concrete trucks will reverse into the site via Walker Street.
12) A two truck concrete feed will be used for each major concrete pour.
13) On changeover, concrete trucks will exit via Walker Street with the assistance of traffic control.
14) The last concrete truck to arrive on site must arrive before 5.30 pm on weekdays.
15) Attended noise measurements are to be undertaken on the first two Saturdays following the introduction of the extended construction hours, being 5pm to 6pm Monday to Friday. Further attended noise measurements are then to be undertaken once every two months until the external façade is constructed and closed.
16) When a complaint is received an investigation into the activities being undertaken, including noise measurements at the affected received, is to be conducted.
17) The applicant shall make available onsite a minimum of 3 car parking spaces Monday to Friday from 5pm to 6pm for construction staff parking for the extended hours of construction.
(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community, and to comply with the noise mitigation methods proposed by the applicant)
(3) The exhibits, other than Exhibit A, may be returned.
_____________________
Sue Morris
Commissioner of the Court
**********
Amendments
19 December 2012 - "until 30 June 2012" deleted
Amended paragraphs: 38(2)(a)
Decision last updated: 19 December 2012
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