Gasmon Pty Ltd v Waverley Council

[2009] NSWLEC 1257

Land and Environment Court

of New South Wales

CITATION:

Gasmon Pty Ltd v Waverley Council [2009] NSWLEC 1257

PARTIES:

APPLICANT
Gasmon Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

11221 of 2008

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION - SECTION 96 MODIFICATION :- to alter refrigeration units - noise, heat, vibration and aesthetic impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

23 July 2009

 
DATE OF JUDGMENT: 

31 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

RESPONDENT
Mr J Hancock (solicitor)
SOLICITOR
Hancock Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 July 2009

11221 of 2008 Gasmon Pty Ltd v Waverley Council

JUDGMENT

Background.

1 This appeal is against council’s refusal of a s96 application to modify a development consent for a mixed use development at No 53 Glasgow Avenue, Bondi Beach. The site is located on the southern side of Glasgow Street at the intersection with Glenayr Avenue.

2 Council originally granted development consent on 24 July 2003 for alterations and additions to the existing mixed use development, comprising the extension to the supermarket and conversion of the 4 x two bedroom dwellings into 8 x one-bedroom dwellings with strata title. There have been subsequent modifications approved to this development.

3 However, other unauthorised works have been undertaken. This includes the installation of 4 x refrigeration units and an air-conditioning unit along the eastern boundary of the site. The original consent provided for this area to be landscaped open space.

4 The subject modification is to obtain retrospective approval for alterations to the following items:

i. To maintain the unauthorised installed refrigeration motors on the eastern side elevation and to rebuild the acoustic enclosure and address heat transmission issues.
ii. To maintain the shop fit out of the supermarket.
iii. To trade between the hours of 7.00am – 10.00 pm, 7 days per week.
iv. Install an illuminated under awning sign at the entry to the supermarket and 2 window signs.

5 Council raised no objections to items ii – iv. The principal issue concerns the retention of the external refrigeration units in terms of their aesthetic impact/landscaping, noise emissions, heat impacts and vibration. Associated with this is the adequacy of the details submitted to enable reasonable assessment of the impacts.

6 The parties agreed to the appointment of Mr S Cooper as the single acoustic expert and his final statement became Exhibit 1.

The evidence

7 In addition to Mr Cooper’s statement, Mr T Patterson, the applicant’s consulting environmental engineer provided a statement regarding the upgrading works. An objection was received from residents in the neighbouring apartments adjoining in Glasgow Avenue. This objection concerns excessive noise generated by the refrigeration motors, which they consider is amplified within the setback area between the two buildings and causes them adverse amenity. They are also concerned about vibrations from the equipment and heat emissions.

8 Following the initial site inspection, the matter was adjourned to allow the applicant to submit more detailed information concerning:

• Specific details of the proposed alterations to the external refrigeration units, together with specifications, fence details and proposed landscaping.
• A final acoustic report assessing the potential impacts of the proposals.
• A heat assessment report.
  

9 Consequently, further amended details were submitted to identify the extent of the proposed modifications. They are contained in exhibit B and are summarised as follows:

• It is proposed to retain the 4 existing refrigeration condensers along the eastern wall of the premises. The air-conditioning unit is to be removed, as it is not required.
• The air inlets adjacent to the wall are to be extended by 400mm.
• A small ‘baffle-type’ awning is to be constructed over this inlet.
• New exhaust silencers are to be installed and these are to have a height of approximately 1500mm, with a 900mm offset to the boundary fence.
• The common boundary fence is to be extended to provide a maximum height of 1800mm inside the neighbouring property (No 51 Glasgow Ave.).
• A lattice screen is proposed over these structures and landscaping is to be undertaken.

10 The Court was informed that since the original consent, a number of actions were undertaken to address the noise impacts from the condensers. This included some revisions of the existing equipment, and other works proposed by RSA Acoustics. These works were assessed by council’s noise consultant Mr L Challis, resulting in the following points of agreement by the consultants:

• The compressor fans shall be replaced by a series of 7 new low noise commercial air- conditioner fans and the direction of the air flow shall be reversed by 180°.
• The heat exchangers shall all be flexibly interconnected (joined) by a PVC coated Terylene septum that provides effective separation between "on-coil" and "off-coil" air paths with no vibration transmission to the external enclosure.
• The existing panels and silencing elements on the eastern side of the composite enclosure shall be replaced by a series of high attenuation acoustical individually sealed access panels without air paths or apertures.
• A high performance inlet attenuator followed by a large and appropriately sized fan together with a fan discharge silencer shall then be installed at the southern end of the enclosure and similar set of units shall be installed at the Northern end.
• The existing inlet silencer (on the wall) will be extended up in height (and performance) and shall then convert into an air discharge silencer with more appropriate attenuation performance.

11 The consultants concluded that the undertaking of these works would likely result in a reduction in noise level that would achieve council’s boundary level noise requirements at all times. However these works have not been undertaken.

12 Of particular interest in this regard is that the original consent in 2004 contained the following condition 23:

23. The use of the premises shall not give rise to:
1. Transmission of unacceptable vibration to any place of different occupancy.
2. A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LA10, 15min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.
3. A sound pressure level at any affected premises that exceeds the recommended planning levels outlined in the EPA Environmental Noise Control Manual: or
4. A sound pressure level at any affected premises that exceeds the EPA recommended maximum noise level as modified to account for the existing level of stationary noise at the receiver premises. (EPA Draft Stationary Noise Source Policy).

13 According to Mr Cooper’s assessment there is an unsatisfactory noise amenity issue and the following matters are relevant:

i. Whilst the refrigeration condenser units were not initially approved, nevertheless their installation placement is incorrect to achieve adequate airflow requirements.
ii. The selection and installation of this equipment was not acoustically assessed from the outset.
iii. The repositioning of the units by 180 degrees to that existing would probably be more efficient in terms of airflow.
iv. The interim acoustic enclosure constructed to address the noise was unsatisfactory because there was no separation between the inlet side of the radiators and the outlet side of the radiators to ensure there is no short circuit between outlet and inlet air.
v. A consequence of this short circuit leads to an overheating of the refrigeration units thereby requiring the enclosure covers to be removed for operational efficiency, but this leads to unsatisfactory noise emissions.

14 In order to establish satisfactory noise levels, Mr Cooper considered the previous noise logging undertaken by the other consultants and found some discrepancies in terms estimating the background noise levels.

15 As the supermarket has not supplied any additional material that deals with the difference in background noise levels, Mr Cooper nominates a background level of 35 dB(A) as appropriate in the circumstances. He says that if one complies with the general criterion of background +5 dB for night-time operations then the resultant noise during the day and evening periods is expected to easily comply with a background +5 dBA, as the background during the day and evening is greater than during the night time period.

16 Accordingly, Mr Cooper says that the degree of attenuation required for the existing mechanical plant to satisfy either the Challis Consulting or the RSA Acoustics design criteria is significant and involves careful consideration of the type of attenuation to be provided, whilst at the same time having adequate ventilation for the subject equipment. In this regard he referred to other possible locations for the units, including inside the supermarket. However, the applicant does not favour these options.

17 On the basis that the existing condensers are to remain, Mr Cooper says his enquiries indicate that if variable speed fans are installed with soft start, then there is a likelihood of significantly lower night-time noise levels. Furthermore, if the boundary fence is increased to 1800mm and sheeted, this would assist in reducing the noise disturbance.

18 In terms of the claims about excessive heat generation, Mr Cooper says this issue is outside his expertise. With regard to the claims about vibration nuisance caused by the equipment, Mr Cooper says this is unlikely to be coming through the building structure. Instead, it is likely this is a low frequency beating effect between the various inlet/outlets of the fan units that give rise to a pulsation in the flat that can either excite room modes or generate some rattling of windows.

19 Mr Cooper conferred with Mr Paterson regarding possible rectification measures. He concludes that with the installation of the variable speed fans, which operate no more than 70% of the daytime operation, there would be greater running efficiency and lower electricity costs. Together with the installation of the acoustically modified boundary fence, it is likely this would satisfy his nominated noise criteria.

Conclusions

20 Having considered the evidence and submissions, it is apparent to me that the level of detailing for the modification works to the existing condenser units is minimal. From my assessment, the plans in exhibit B represent sketches only of the existing works and the specification for the inlet extension and exhaust silencer are of a conceptual nature only.

21 With regard to the vibration concerns, Mr Paterson has not pulled the acoustic covers totally apart to determine this cause. However he considers the installation of rubber isolators under each condenser may satisfy this concern. Mr Paterson also undertook some heat measurements of the exhaust air, but admitted that the assessment of heat emissions was complicated and outside his expertise.

22 It then seems to me that the applicant has not satisfactorily addressed the previous Court directions to file specific details of the complete modification works. Whilst some of these details were clarified at the on-site hearing, nevertheless the details are still inadequate. There is no detailing of the existing condensers that are to be retained, or of the specification for the variable fans and their operation. Consequently, my impression is that the proposed rectification works are very much on a trial basis, with an unacceptable degree of certainty to satisfy the noise criteria and heat and vibration impacts.

23 The proposed fencing and landscaping details were also submitted on a very ad-hoc basis at the hearing and are not of a standard that is normally expected for assessment. I consider these deficiencies are negative aspects of the proposal.

24 The lack of these details then prevents Mr Cooper from expressing a reliable opinion on the likely noise outcomes in the subject environment. Bearing in mind that the original consent contained condition 23, which required compliance with the designated noise criteria and other environmental criteria, that criteria is similar to that which would be imposed on any s 96 modification now approved by the Court.

25 However, when the effectiveness of the existing fans was assessed previously, their specification, orientation and installation was considered unsatisfactory. It therefore seems to me that more compelling evidence should be submitted initially, to demonstrate that compliance can now be achieved with the existing condensers. The lack of these details is a major deficiency in my assessment.

26 In this regard, I have considered the applicant’s submission that the proposed works could be approved on a conditional basis. The conditions would allow for a 12-month trial period to assess the adequacy of the works in satisfying the relevant criteria.

27 Against this proposition I note council’s opposition to this approach because the original consent did not approve any refrigeration units within this side setback area. Instead it was to be set aside, as a landscaped open space area. Accordingly, this was to establish an amenity relationship between the two adjoining properties that did not include the noise, heat and vibration impacts that have been identified. Under these circumstances, council submits that due consideration should be given to other options, particularly the location of this plant within the building.

28 It is apparent to me that when the supermarket alterations/extensions were it would have been obvious that adequate space was required for some refrigeration units. Presumably this would have required a balancing of the retail area as compared to the associated infrastructure servicing area, i.e. possible inside space for the condensers. But the applicant is uninterested in this option.

29 Under these circumstances there is competition between the private interests of the applicant to maximise retail area and the public interest to maintain a reasonable level of external amenity. I accept the council’s submissions that the infill of this side setback area with refrigeration infrastructure reduces the visual and aesthetic amenity of this area, relative to the consent provisions. The detailing of the proposed screening and landscaping submitted to the Court do not overcome my concerns in this regard. I rely in part on the council officer, Mr Connor’s opinion that this is unsatisfactory.

30 Therefore, in order to achieve a reasonable balance between these competing interests, I consider that there be some demonstration by the applicant to comply with the intent of the consent. This means consideration of alternative locations for the refrigeration plant, as suggested by Mr Cooper, including inside the premises, so as to maintain the external amenity relationship, which includes aesthetics, originally approved.

31 Based on the evidence before the Court, the modification appears unreasonable by maximising the internal retail area to the detriment of the amenity of the occupants of the neighbouring residential properties and therefore I consider this aspect of the application should fail.

32 In the ultimate, I am satisfied that this modification application relates to the same development. Also that it has been notified and the objectors given the opportunity to make submissions. However, I do not consider the proposed modifications to the existing condensers merit approval due to the lack of detail, which precludes realistic assessment of the visual impacts, acoustic compliance and any expert heat impact assessment.

33 Apart from this, I am satisfied to rely on the council’s submissions that the other items for modification merit approval.

34 The Court orders:

1 The appeal is upheld in part.
2 The s 96 modification to DA No 893/2003/B concerning the mixed-use development at No 53 Glasgow Avenue, Bondi, is approved in respect of:
.1 The maintenance of the existing shop fit out of the supermarket, subject to the submission to council of final detailed plans of this layout.
.2 The trading hours being from 7.00am to 10.00pm, 7 days per week.
.3 The installation of an illuminated under awning sign at the entry to the mini supermarket and two window signs, in accordance with details submitted to and approved by council.
3 The modification to retain and alter the existing refrigeration motors/condensers is refused.

4 The exhibits may be returned except for 1.

________________________
R Hussey
Commissioner of the Court
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