Gemini Accident Repair Centres Pty Ltd v Council of the City of Sydney
[2014] NSWLEC 1148
•25 July 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Gemini Accident Repair Centres Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1148 Hearing dates: 22 July 2014 Decision date: 25 July 2014 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld
Catchwords: Consent orders - Development application - Vehicle body repair workshop - Light industry - Light Industrial zone - Health and amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sydney Local Environmental Plan 2012Category: Principal judgment Parties: Gemini Accident Repair Centre Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)Representation: Mr A Whealy, Gadens (Applicant)
Mr A Singh, City of Sydney (Respondent)
File Number(s): 10152 of 2014
Judgment
This is an appeal by Gemini Accident Repair Centres Pty Ltd (Gemini) under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application D/2013/1443 for the fit out and use as a vehicle body repair workshop of premises at Unit B1, 6-10 Durdans Street Rosebery (the site).
The site is on the western side of Durdans Avenue within an industrial complex known as the "Rosebery Industrial estate". The estate has a number of separate tenancies, including premises used for warehousing and distribution facilities. One tenancy has frontage on Gardeners Road and the remaining tenancies are accessed from Durdans Avenue via two separate driveways. Units B1 and A1 share one of those driveways.
Adjoining the site to the west, and separated by a masonry wall, is Gardeners Road Public School. To the east on the other side of Durdans Avenue is low density residential housing.
The proposed development was described in the Statement of Environmental Effects as specialising in "fast turn-around 'driveable' jobs which are vehicles with minor damage". Fit out works have been undertaken at the subject premises, including the installation of two spray booths and exhaust systems at the eastern end of the building, five working bays, a mixing room, and office and reception areas.
The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The parties did not reach agreement under s 34(3) of the Court Act, and the conciliation conference was terminated. The parties are in agreement that it is appropriate that development consent be granted subject to conditions, and seek orders by consent. The parties consented to determination by me, and to the evidence from the conciliation conference, including the site view and evidence provided by objectors, forming part of the evidence in the proceedings.
Issues
The Council's contentions as identified in the Statement of Facts and Contentions filed on 10 April 2014 related to consistency of the proposed development with the aims and objectives of the planning controls; safety, amenity and air quality of sensitive receivers; whether the proposed use is permissible; traffic generation and acoustic impacts on surrounding sensitive receivers; retrospectivity; significant community objection relating to emissions and waste, traffic, noise, and change in intensity of use; and the public interest.
During the course of the conciliation process further details as to the nature of the proposed operation, and additional information on emissions and odour, traffic, and acoustic impacts, was provided to the Council. The Council's position is now that this additional information addresses the matters on which the Council had concerns, and the only contention remaining is that relating to the significant community objection to the proposal.
Planning Controls
The site is zoned IN2 Light Industrial under the Sydney Local Environmental Plan 2012 (the LEP). The objectives of the zone and the Land Use Table are as follows:
Zone IN2 Light Industrial
1 Objectives of zone
· To provide a wide range of light industrial, warehouse and related land uses.
· To encourage employment opportunities and to support the viability of centres.
· To minimise any adverse effect of industry on other land uses.
· To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
· To support and protect industrial land for industrial uses.
2 Permitted without consent
Nil
3 Permitted with consent
Agricultural produce industries; Boat building and repair facilities; Depots; Food and drink premises; Freight transport facilities; Garden centres; Hardware and building supplies; Horticulture; Industrial retail outlets; Industrial training facilities; Kiosks; Light industries; Markets; Medical centres; Neighbourhood shops; Respite day care centres; Roads; Roadside stalls; Sewage reticulation systems; Timber yards; Warehouse or distribution centres; Waste or resource transfer stations; Any other development not specified in item 2 or 4
4 Prohibited
Agriculture; Air transport facilities; Airstrips; Amusement centres; Boat launching ramps; Boat sheds; Camping grounds; Car parks; Caravan parks; Cemeteries; Charter and tourism boating facilities; Commercial premises; Correctional centres; Eco-tourist facilities; Educational establishments; Entertainment facilities; Environmental protection works; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Helipads; Highway service centres; Home-based child care; Home businesses; Home occupations; Home occupations (sex services); Industries; Jetties; Marinas; Mooring pens: Moorings; Places of public worship; Port facilities; Recreation facilities (major); Recreation facilities (outdoors); Registered clubs; Residential accommodation; Restricted premises; Rural industries; Sewerage systems; Sex services premises; Tourist and visitor accommodation; Transport depots; Truck depots; Veterinary hospitals; Waste or resource management facilities; Water recreation structures; Water supply systems; Wholesale supplies
An "industry" means any of:
(a) general industry,
(b) heavy industry,
(c) light industry,
but does not include:
(d) rural industry, or
(e) extractive industry, or
(f) mining.
The terms "heavy industry" and "light industry" are defined:
heavy industry means a building or place used to carry out an industrial activity that requires separation from other development because of the nature of the processes involved, or the materials used, stored or produced, and includes:
(a) hazardous industry, or
(b) offensive industry.
It may also involve the use of a hazardous storage establishment or offensive storage establishment.
Note. Heavy industries are a type of industry-see the definition of that term in this Dictionary.
...
light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise, and includes any of the following:
(a) high technology industry,
(b) home industry.
A "general industry" means "a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity".
The Gardeners Road Public School is zoned SP2 Educational Establishment. The residential development on the eastern side of Durdans Avenue is in the R2 Low Density Residential zone.
Evidence
As part of the conciliation conference, evidence was heard on site on 8 May 2014 and 19 May 2014. On 8 May 2014 evidence was given by the owner of 15 Durdans Avenue, who stated his concerns to be noise, traffic, and the impact of having smashed cars parked on the street. The owner of unit C1 in the complex stated concerns as to noise. Mr Anthony Boskovitz, solicitor, spoke on behalf of the owners of unit A1, and stated their concerns to be parking and traffic, vehicle movements, cars parking on the street, waste and pollution, emission of hazardous materials, and noise. The owner of 112-118 Durdans Avenue stated his concerns relating to ensuring compliance with conditions, and vehicle access on a single narrow driveway. On 19 May 2014 evidence was given by the Principal of Gardeners Road Public School, and parents of children attending the school. That evidence raised concerns as to health and safety from emissions, and noise and traffic, given the close proximity of the site to the school, which has 264 children including 43 with disabilities.
The written submissions made during the Council's assessment of the application, which included a petition with 294 signatures, are before the Court (exhibit 2).
In accordance with the Court's requirements for consent orders in Class 1 Development Appeals the Council notified the objectors and provided them with copies of the proposed Consent Orders, Conditions and Plan of Management. Mr Boskovitz spoke at the hearing on behalf of the owners of Unit A1, stating that his clients are satisfied with the proposed Conditions except for the proposal that the central roller door from the shared driveway remain open during operations. Their concern is with the emanation of noise from people and the use of tools travelling across the driveway into their property.
The expert evidence before the Court includes the following reports:
1. Noise
- report by Renzo Tonin & Associates dated 2 August 2013 provided as part of the development application assessing operational noise from hand tools and electric tools used for repairs inside the building; mechanical plant including ventilation equipment associated with two spray booths and an air compressor; and additional road traffic noise from the local road network;
- statement of evidence by Glenn Wheatley of Renzo Tonin & Associates dated 17 July 2014 assessing noise from additional receptor locations not included in the earlier report;
2. Traffic
- report by Piran Trethewey, engineer, dated 16 July 2014, addressing traffic generation and acoustic impacts on surrounding sensitive receivers;
- letter dated 2 August 2013 from Mr Trethewey;
3. Emissions
- reports prepared by Dr Dave Collins of Synergetics Environmental Engineering, dated 22 November 2013, 7 May 2014, and 18 July 2014;
- report prepared by Mr Gary Graham and Dr Neihad Al-Khalidy of SLR Consulting dated 15 July 2014, reviewing the air quality assessment reports prepared by Synergetics.
Consideration
The proposed development is different to a standard vehicle smash repair business. As outlined in the Statement of Environment Effects submitted with the development application, and reflected in the proposed Conditions and Plan of Management, the business operates only for jobs booked through an insurance company (exhibit 2, p48); and for fast turn-around work for minor damage on vehicles that are driven to the premises rather than arriving by tow truck, and with no mechanical work undertaken (exhibit 2, pp 19-20, 26-27).
The proposed Conditions include requirements that there be a maximum of 14 vehicles per day, that all vehicles to be repaired are driven to the site and not to be delivered by tow truck or vehicle transporter, that all vehicles waiting to be repaired or collected are stored on the site, and that deliveries must occur within the site; that recommended acoustic measures and noise limits be complied with, including a complaints procedure; that all spray painting be carried out only within a spray booth constructed and ventilated in accordance with AS/NZS 4114.1:1995; and a complaints procedure for odour or emissions. Proposed condition 2 states that no approval is given for works carried out on the site without development consent. The proposed Conditions restrict hours of operation to between 7.30am and 5.30pm Monday to Friday with no trading or operations on Saturday or Sunday, and office and clerical work permitted on Saturday between 8.00am and midday.
The proposed Conditions require compliance with a Plan of Management, and that copies of all consents and the Plan of Management be kept at the premises and available to any person on request. The Plan of Management dated 22 July 2014 references and requires compliance with Gemini's Environmental Policy; can be amended by agreement with the Council where amendments are likely to maintain or improve the standards set in the Plan of Management; and requires instruction of staff in its requirements. In terms of the operation of the premises, the Plan of Management requires inventories of paint and solvent consumption; that all emissions from the spray booths are extracted and abated through activated carbon filters prior to discharge to the atmosphere; that the spray booths are configured so as to ensure that they can only operate while the carbon filters are installed and operating in accordance with the parameters of the particular filters installed, and that there are operational safeguards to prevent the spray booths from operating in the event of a malfunction or breakthrough; that no mixing of paint products take place outside the mixing room at the eastern end of the building; that only waterborne basecoats and/or non solvent basecoats are used; that the operator use only low volatile organic compound (VOC) lacquers and clear-coats that comply with European and Australian legislation and have a total VOC content that does not exceed that modelled by Synergetics; that sanding processes use a specified (or equivalent) brand sander fitted with sanding discs to capture, vacuum and collect dust emissions from sanding processes at source; and that spray booths, exhaust systems, and filters are maintained and serviced. The Plan of Management annexes a letter from PPG Industries Australia Pty Ltd, outlining that the principal source of odour from motor body repair shops is the solvent or VOC contained in various paint products; that a conventional solvent basecoat contains approximately 750-800g of VOC per litre of mixed product; and that the adoption of waterborne basecoat, which typically contains 80-100g of VOC per litre of mixed product, significantly reduces solvent emissions.
The primary issue of concern for the Council in its assessment of the application was the toxicological impacts of emissions from the operation of the business, and the impact on amenity of odour emissions. The conciliation process included the provision to the Council of further detailed material and modelling from Dr Collins, the expert engaged by Gemini. In his report dated 18 July 2014 (exhibit A) Dr Collins noted that his earlier reports had quantified potential air impacts in accordance with the relevant EPA Guidelines which are conservatively set, and which are protective of susceptible members of the community such as asthmatics and children. Those reports concluded that the likely impacts of the proposed development were below the applicable EPA limits both in terms of health and odour criteria. Dr Collins stated that in response to the Council's concerns he and his staff had conducted more detailed assessment, calculating the pollutant exposure levels that could be experienced by nearby residents, school children and office workers in elevated buildings by application of refined dispersion modelling, which is referred to in the relevant guidelines as Level 2 modelling, and based on a number of identified conservative assumptions including as to wind speed and direction. That analysis included details of all the proprietary chemical constituents contained in the specific automotive coating types planned to be used by Gemini obtained from the paint supplier (PPG Industries). The assessment found that the proposal would comfortably comply with all applicable standards for health and odour. The worst case factor of safety was determined to be for odour and was greater than 20, that is, the results would need to be 20 times worse to reach a point of non-compliance with the conservatively set standards.
The material provided by Dr Collins has been reviewed by the Council's experts, who concluded (exhibit 3, p 2):
Toxicological Impacts
It was agreed by all parties that the potential for toxicological impacts from the discharge to atmosphere of air pollutants is low. Based on the information presented in the November, May and June Reports and calculations performed independently by SLR, it is concluded that there will not be any exceedance of the relevant Impact Assessment Criteria, as presented in the NSW DEC (2005) Approved methods for the Modelling and Assessment of Air Pollutants in New South Wales.
In regard to the potential for toxicological impact and based upon the assumptions presented in the November, May and June Reports it is agreed that there will be no health-related impacts and that the current design is sufficient to protect the health of individuals surrounding the site.
Amenity Impacts
In regard to the potential for amenity impacts, it is noted that the impact criteria are typically more stringent than those imposed for toxicological control. For a wide range of compounds (but not all), the presence of the compounds in air is detectable as odour at a lower concentration than would cause health-related effects.
Mr Graham and Dr Al-Khalidy noted that there was a remaining range of uncertainties, and that there was acknowledgment of the requirement to promote a realistic, pragmatic and reliable system cognisant of the surrounding sensitive uses. They recommended that Gemini install and operate an appropriate emission control device designed to control emissions giving rise to health and amenity impacts, and that agreed that operation of such a device (such as activated carbon filtration), to be approved by the Council, would resolve any residual uncertainties. Dr Collins was of the opinion (exhibit A p 8) that the use of carbon filters while not necessary would be a cautious approach. He noted that the calculations showed that the factors for safety for health criteria are larger than the factors of safety for odour so that in the event of an unexpected problem an odour would be detected before health criteria are exceeded, and so the most practicable method of offsite monitoring and the need for carbon filters is detectable odour. The requirement that carbon filters be installed has been included in the Plan of Management, with a provision for the filters to be maintained and retained through the operating life of the facility or until the applicant provides sufficient evidence to the Council that demonstrates that the spray booths are able to operate without causing unacceptable amenity impacts without the operation of carbon filters.
The assessment of traffic impacts (exhibit D, p2) included vehicle movements for staff, and for 14 repairs per day equating to 28 daily trips with two associated trips for drop off and pick up being 84 daily trips for clients. Based on those numbers, the proposed development would generate 12 morning peak hour trips (4 staff, 8 vehicle/client trips) and 17 evening peak hour trips (17 staff). Mr Trethewey provided (exhibit D, p4) a plan for parking layout which includes 14 parking spaces on the forecourt; space for nine vehicles to be stored inside the premises while waiting to be repaired or picked up, and bays inside the building for vehicles being worked on. Deliveries are to be undertaken by courier vans and small trucks which are to be driven into the building to unload items such as parts. Mr Trethewey concluded that the proposed development would have no material traffic impacts on the surrounding occupiers compared with the permissible impacts associated with the subject unit's former use; it would provide an area for the storage of up to nine cars on-site; it adheres to the maximum parking provisions of the applicable planning controls, and includes 4 bicycle racks as required by the Council's development control plan; the majority of deliveries will be by courier vans and small trucks driven into the unit; the development has undertaken all possible measures to provide for parking on-site and encourage alternative transport use; and there will be no material or measurable increase in traffic that could be attributed to creating a hazard to nearby school children.
The assessment of acoustic impacts provided with the development application (exhibit G) included monitoring at 17-23 Durdans Avenue and the school buildings located adjacent to the western boundary of the site. The assessment to the school was based on the NSW Industrial Noise Policy amenity criteria for school classrooms, and was undertaken on the assumption that the classrooms would have open windows. Operational noise was assessed for continuous noise from a stationary air compressor, and from air extractors and exhaust fans associated with two spray booths; and intermittent noise from hand tools including hammers and electric/pneumatic tools including sanders and drills, based on measurements of those activities at a similar Gemini repair centre located at Artarmon. The assessment was undertaken on the assumption that roller doors on the southern side of the building would be open during operations. The conclusion was that predicted noise levels would be lower than existing daytime background noise level. The report concluded that the proposed development would comply with the applicable noise criteria, and that acoustic assessment of mechanical services equipment would need to be undertaken during the detailed design phase of the development.
The Council's contentions identified a concern that the acoustic assessment had not included the existing light industrial warehousing and offices within the industrial complex as receivers, that school buildings rather than the playground had been used, and that no assessment had been made with regards to mechanical services equipment or the required ventilation system. The report of Mr Wheatley dated 17 July 2014 (exhibit F) noted (p 3) that the adjacent commercial and warehouse receptors had not been identified as they were not deemed noise sensitive or more sensitive than the adjacent school and residential dwellings. In response to the concerns raised by the Council, four additional monitoring locations were assessed, being the school playground, the entry to the warehouse area for Unit A1, the commercial premises immediately to the south of the site, and the warehouse sharing a common wall immediately to the north of the subject premises. Mr Wheatley included in his assessment of impacts to uses in the industrial complex the assumptions that the central roller door on the southern side of the building would be fully open during operations and the roller door at the western end of the building would be permanently closed; he concluded that that there was compliance at all assessment locations. In relation to the school playground, Mr Wheatley noted that the initial assessment to the school building represents a more stringent assessment both due to the applicable criteria and closer proximity to the subject site, and noted that the playground is separated from the subject site by car parking. Mr Wheatley carried out acoustic testing on the mechanical plant equipment already installed on the site, which is the air compressor and fans associated with the spray booths and which is located at the eastern end of the building, to assess compliance with the Council's standard conditions of consent for mechanical plant noise emission, assessing the nearest potentially affected receptors being the residents on the opposite side of Durdans Avenue and the receptors within the industrial zoned land. That assessment showed compliance with the Council's standard conditions and the NSW Industrial Noise Policy. Condition 3(g) requires that all roller doors are kept closed except while vehicles are entering or leaving.
Findings
Based on the expert evidence, I am satisfied that with the proposed Conditions of Consent and Plan of Management, including the requirement for installation of additional carbon filters, and the condition authorising Council officers to direct that operations cease if there is a substantiated complaint as to odour and abnormal emissions, the proposed development will not give rise to health-related impacts from air emissions or amenity impacts relating to odour. I accept the expert traffic evidence provided on behalf of Gemini, and am satisfied that with the inclusion of conditions and provisions in the Plan of Management relating to vehicle numbers, deliveries, parking restricted to the site, and staggering of vehicle drop off and pick up times, the additional traffic and vehicle movements generated by the proposed development would not be such as to warrant refusal. I accept the expert acoustic evidence provided by Gemini and am satisfied that with the inclusion of conditions requiring compliance with recommendations of the acoustic assessment, setting limits for emission of noise, and providing for Council officers to direct that operations cease if there is a substantiated noise complaint, that the noise emissions meet relevant criteria and would be acceptable. Having regard to these factors, on the evidence before me I am satisfied that the proposed development would not interfere with the amenity of the neighbourhood in terms of noise, traffic, emissions or odour.
On that basis the proposed development can be characterised as "light industry" as that term is defined in the LEP. In the development application the proposed development was characterised as "vehicle body repair workshop", a term which is also defined in the LEP but which is not included in the Land Use Table for the IN2 zone. I am satisfied that the proposed development is permissible with development consent in the IN2 Light Industrial zone either as "light industry" or as an innominate form of development not specifically prohibited. I accept that the proposed development meets the objectives of the IN2 zone, to which regard must be had in accordance with cl 2.3(2) of the LEP, including by minimising any adverse effect of industry on other land uses through the imposition of the proposed conditions and requirements of the Plan of Management.
Conclusion
The Council's position has been that the location of the subject site in a light industrial zone between a school and a residential area requires careful assessment of the likely impacts of the proposed development on the sensitive surrounding land uses. The Council's position now is that Gemini has provided sufficient information to address its concerns as to health and amenity impacts from emissions and odour, noise, and traffic. The matters raised in submissions, both the written submissions made to the Council and in the oral evidence provided as part of the Court conciliation and hearing process, reflect the concerns identified by the Council, in particular the health and amenity impacts of the proposed development. Having regard to the additional information provided to the Council and in the evidence now before the Court, I am satisfied that it is both lawful and appropriate to grant development consent subject to the agreed Conditions of Consent which include the Plan of Management.
The orders of the Court are, by consent:
1. The appeal is upheld.
2. Consent is granted to D/2013/1443 for fitout and use of a factory unit as a vehicle body repair workshop at B1/6-10 Durdans Avenue Rosebery NSW 2018, subject to the conditions annexed to this order and marked "A" and the Plan of Management marked Annexure "B".
3. The exhibits are returned except for exhibit 1.
Appendix A - Conditions
Appendix B - Plan of Management
Linda Pearson
Commissioner of the Court
Decision last updated: 29 July 2014
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