Harley Scott v Singleton Council

[2017] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harley Scott & Anor v Singleton Council [2017] NSWLEC 1616
Hearing dates:	21-23 August, 2017
Date of orders:	03 November 2017
Decision date:	03 November 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeals are upheld subject to the following Court orders. 2. The Order issued by Singleton Council to the applicants under s121B of the Act is revoked. 3. Development Application DA253/16 to permit a truck depot (including the ancillary use of mulch storage and bulk sales), bund wall and associated works at 32-34 Carrington Street and 51 Church Street, Glenridding is approved subject to the conditions in “Annexure A”. The component of the application comprising the rural industry use of sawmilling or log processing (being the storage, sawing or splitting of logs or firewood) at the site is not approved. 4. The exhibits, except Exhibits K, Q, R, S and 3, are returned.
Catchwords:	DEVELOPMENT APPLICATION/ORDERS: use of site for truck depot and rural industry (sawmilling or log processing); whether existing use rights apply; whether lawful continuing use; ancillary uses; order to cease use and retail sales; flooding; stormwater management; Industrial Noise Policy; amenity impacts; noise; odour; air quality; dust; light spill; drainage; operating hours; setbacks; impact on sewer from bund wall
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Singleton Local Environmental Plan 2013
Cases Cited:	Nil
Texts Cited:	Singleton Development Control Plan 2014 NSW Industrial Noise Policy 2000
Category:	Principal judgment
Parties:	Harley Scott (First Applicant) Prudence Scott (Second Applicant) Singleton Council (Respondent)
Representation:	Solicitors:   Mr G Williams, MRM Lawyers (Applicants) Mr A Pickup, Local Government Legal (Respondent)
File Number(s):	17/135334 and 16/301155
Publication restriction:	No

Judgment

1. Two appeals were lodged by the applicants against Singleton Council (the Council) in relation to the use of a property at 32-34 Carrington Street and 51 Church Street, Glenridding (the site).

2. The first was an appeal under s 121B of the Environmental Planning and Assessment Act 1979 (the Act) against an Order issued by the Council to cease the use of the site as a ‘saw mill or log processing works’ and as a ‘garden centre’ and requiring removal of logs, processed wood and stored mulch from the property

3. The Order arose as the Council contended that the site was being used for log processing without development consent and that a garden centre was prohibited. Further, that the use of the property was resulting in adverse amenity impacts on neighbouring properties in terms of dust, noise and visual pollution from lights and potential danger from fire or in the event of a flood.

4. The second appeal was under s 97(1) of the Act against the deemed refusal by the Council of a development application for the use of the site for log processing and as a truck depot, and for works associated with these uses. Retailing from the site was not proposed. Should the second appeal be upheld, the parties agreed that the Order would likely fall away.

5. A central issue in the appeal was whether or not the site, or portions of it, had existing or continuing lawful use rights for any or all of the uses which currently occur on the site. If not, whether these uses were appropriate and ought to be approved given the site’s location, zoning and context and the nature of the existing operation.

6. The hearing commenced with an onsite view where the Court heard from a number of objectors principally living adjoining the site. A range of concerns were raised including the intensification of the use of the site from the previous use for storage of trucks to now also including the storing of mulch, the storing of logs and their splitting into firewood, early operations resulting in noise and light adverse impacts on neighbours, and the potential impacts of flooding on the site.

Background to the appeals

7. The applicants purchased the site in December 2015 to use in conjunction with their landscaping business, Hunter Tree and Lawn Care (HTL Care).

8. From about March 2016, the Council received complaints from residents adjacent to the site in relation to noise, dust, light spill, and fire and flood risk associated with the site’s use.

9. In June 2016, a Council inspection indicated that the site was being used as a ‘truck depot’ and ‘sawmill and log processing works’ (as defined in the LEP) which required consent. The officers also claimed that the site was being used as a ‘garden centre’, in that retailing of timber products was being undertaken, which was prohibited by the LEP. Photos taken at the time indicate that a storage bay (comprising a bund wall) had been constructed of concrete blocks which contained mulch (woodchips) with further mulch stored next to the bay. Large piles of unprocessed logs and cut and split firewood were stacked along a boundary fence. Machinery and equipment on the site included three trucks, a wood chipper, two lawn mowers, two bobcats, a ute, ride on lawnmowers, and a range of hand held equipment including chainsaws. A camper van with awning was also on the site and appeared to be connected to a water and wastewater outlet.

10. In August 2016, the Council issued a Notice of Intention to issue an Order under s121B of the Act to cease the (illegal) use of the property. The Notice advised that representations could be made to the Council in relation to the proposed Order. By letter dated September 2016 Council received representations from lawyers on behalf of the applicants in relation to the proposed Order. In response, the Council issued a modified Order on September 14, 2016.

11. The specific terms of the modified Order were to cease use of the property as a ‘sawmill or log processing works’ and ‘garden centre’, and to remove all logs, timber and other processed wood and stored mulch from the property. The cessation of the use was to occur within 28 days from the date of the Order whilst the removal of the logs, timber, wood products and mulch was to be complied with within 42 days from the date of the Order.

12. The Order was appealed on the basis that the property had not been and was not being used as a garden centre, that the use of the property as a log processing works was a lawful use of the property before the coming into force of the LEP, and that there was not reasonable and sufficient time for compliance with the Order.

13. In December 2016 development application 253/2016 (the application) was lodged by the applicants seeking consent to continue using the property generally in accordance with the use it was being put to at the time of the Council’s Order other than for any garden centre use (ie retailing) or onsite accommodation.

14. In particular, approval was sought for a sawmill or log processing works, being a rural industry, and a truck depot along with a bund wall for the storage of mulch, construction of fencing, a gate and onsite car parking, use of a shipping container for the storage of firewood, and the chain sawing of logs into firewood on a limited basis. The access, yard and car parking areas were not to be paved but were to remain of all weather gravel construction. Perimeter landscaping and fencing were also proposed.

15. Specifically, consent was sought to permit storage of bulk logs and up to 300m² of woodchips (mulch), treatment of woodchips/mulch by regular turning, cutting and splitting of timber to produce firewood, and bulk sales of woodchips and firewood. These activities would require a bobcat for turning and loading, a chainsaw, hydraulic saw and block splitter, and a forklift to move logs and load firewood. Additional truck movements would be required to deliver and remove materials and products.

16. Approval was also sought for the bund wall which was 2m high in the north western corner of the site with a length of some 9m adjoining the side (western) boundary and 13m adjoining the rear (northern) boundary.

17. The Council was advised that the site was to be used as the storage and work yard for HTL Care which undertook all types of tree works, stump grinding, and mowing. Equipment and vehicles used in the business would be stored on the site either in the open or under cover in existing sheds. Operating hours were proposed from 7am to 5pm Monday to Friday. Bulk logs and chipped wood would be stored onsite with the logs rendered into firewood. The woodchips (mulch) would be stored, treated and reused in landscaping works undertaken by the business or sold in bulk to other users. Chainsaws would be used on a limited basis to split the timber. No retail sales were proposed.

18. The application was notified to adjoining property owners and eight submissions were received. Issues raised in submissions included dust creation, inappropriate location, reduced property values, the location of the site in a high hazard floodway with the logs stored on site potentially moving in a flood event causing damage to surrounding residential dwellings, noise and vibration, and health impacts and fire risk from the storage of mulch.

19. Council officers recommended approval but the application was deferred in April 2017 and the applicants requested to undertake additional technical studies and reports.

20. In May 2017 an appeal was lodged against the deemed refusal of the application. The Council subsequently contended that the application should be refused on the basis of a number of contentions including; the flooding of the site, stormwater and water quality issues, acoustic impacts, air quality impacts, and the setback and possible impact of the bund wall for the mulch storage area on an existing sewer line which traversed the site.

The existing and proposed use of the site

21. As previously indicated, the applicants, Mr and Mrs Scott, purchased the site in December 2015 to use in conjunction with their landscaping business (HTL Care). This use included the parking of trucks and equipment, maintenance of the trucks and equipment, storage of mulch, and processing of logs including for firewood which was then stored and delivered to customers.

22. In evidence, Mr Scott stated that, at the time of purchase, the site was already being used as a truck depot and storage area for an earthmoving business. The equipment he used in his business comprised a tipper truck, brush chipper, travel tower, bobcat, three trailers, two stump grinders, mowers, hand equipment items, four chainsaws and two shipping containers. Since purchasing the property, this plant and equipment had been stored continuously and serviced at the site associated with the HTL Care business. However, the greater proportion of the use of the equipment occurred, and still occurs, offsite.

23. Mr Scott agreed that he had also used the property for the storage and ‘baking’ of mulch. A tipper truck and bobcat were used to handle the mulch.

24. Initially HTL Care stored logs which were by products of their business at the site pending processing offsite. However, in March 2016 the business started processing the stored logs using chainsaws to cut and split the logs into firewood stored at the property. Apart from a small quantity of firewood sold to locals there had been no retail sale of firewood from the property which was now not proposed with sales either being wholesale or bulk with no customers attending the property.

25. Since the Order issued by the Council, HTL Care has loaded and cut logs on another site into blocks and transported these blocks back to the site to render them into firewood with a block splitter.

26. Mr Scott claimed that HTL Care was a small business compared to uses previously operating on the site and the predominant nature of the business was offsite mowing. Often there was no one at the site and it was only used for product and equipment storage. Tree lopping equated to less than 20% of the annual business. The mulch stored on site for customers was a result of the lopping and was stored as per EPA guidelines requiring turning usually every three days with a bobcat. The bobcat would also be used to move logs and load crates of firewood. If chain sawing of logs into firewood was permitted on the site, it would reduce bobcat use.

27. Mr Scott advised that the firewood was a side business only which lessoned mulch storage and maximised recycling. It was only undertaken in winter. It was implied that it would not be feasible if undertaken offsite given the transport logistics.

Statutory Context

28. Under the provisions of the LEP, the uses at issue in the appeals are defined as follows:

garden centre means a building or place the principal purpose of which is the retail sale of plants and landscaping and gardening supplies and equipment. It may, if ancillary to the principal purpose for which the building or place is used, include a restaurant or cafe and the sale of any the following:

(a) outdoor furniture and furnishings, barbecues, shading and awnings, pools, spas and associated supplies, and items associated with the construction and maintenance of outdoor areas,

(b) pets and pet supplies,

(c) fresh produce.

Note. Garden centres are a type of retail premises—see the definition of that term in this

Dictionary.

rural industry means the handling, treating, production, processing, storage or packing of animal or plant agricultural products for commercial purposes, and includes any of the following:

(a) agricultural produce industries,

(b) livestock processing industries,

(c) composting facilities and works (including the production of mushroom substrate),

(d) sawmill or log processing works,

(e) stock and sale yards,

(f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise.

Note. Rural industries are not a type of industry—see the definition of that term in this

Dictionary.

sawmill or log processing works means a building or place used for handling, cutting, chipping, pulping or otherwise processing logs, baulks, branches or stumps, principally derived from surrounding districts, into timber or other products derived from wood.

Note. Sawmill or log processing works are a type of rural industry—see the definition of that term in this Dictionary.

truck depot means a building or place used for the servicing and parking of trucks, earthmoving machinery and the like.

29. The site is zoned RU1 Primary Production under the LEP. Development for the purposes of ‘sawmill or log processing works’ (log processing) and for ‘truck depot’ as defined are permissible in the zone with development consent whilst a ‘garden centre’ is prohibited.

30. The applicants initially claimed that the use of the site benefitted from existing use rights. An existing use is defined in s 106 of the Act as a use that is lawfully commenced but subsequently becomes a prohibited use under a new local environmental plan or other environmental planning instrument. Existing use rights provide for the continuation of the right to operate the same use on the site.

31. Specifically, Division 10 of Part 4 of the Act deals with existing uses and with continuing lawful and unlawfully established uses, with the relevant extracts as follows:

106 Definition of “existing use”

(1) In this Division, existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

107 Continuance of and limitations on existing use

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

108 Regulations respecting existing use

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use….

109 Continuance of and limitations on other lawful uses

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months…

109A Uses unlawfully commenced

(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:

(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefore, or

(b) the granting of development consent to that use.

(2) …

32. The Environmental Planning and Assessment Regulation 2000 (the Regulation) includes the following relevant clauses:

39 Definitions

In this Part:

"relevant date" means:

(a) in relation to an existing use referred to in section 106 (a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or

(b) in relation to an existing use referred to in section 106 (b) of the Act - the date when the building, work or land being used for the existing use was first erected, carried out or so used.

40 Object of Part

The object of this Part is to regulate existing uses under section 108 (1) of the Act.

41 Certain development allowed

(cf clause 39 of EP&A; Regulation 1994)

(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use--be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use--be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

(2) …

42 Development consent required for enlargement, expansion and intensification of existing uses

(cf clause 40 of EP&A; Regulation 1994)

(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification:

(a) must be for the existing use and for no other use, and

(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

43 Development consent required for alteration or extension of buildings and works

(cf clause 41 of EP&A; Regulation 1994)

(1) Development consent is required for any alteration or extension of a building or work used for an existing use.

(2) The alteration or extension:

(a) must be for the existing use of the building or work and for no other use, and

(b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date…

45 Development consent required for changes of existing uses

(cf clause 43 of EP&A; Regulation 1994)

Development consent is required:

(a) for any change of an existing use to another use, and

(b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes.

46 Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt

(cf clause 44 of EP&A; Regulation 1994)

Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45…

33. The Act and the Regulation therefore make provision for the continuance of existing uses where an existing use right is found to exist, for continuation of a use lawfully established, or for consent to a use unlawfully established. The onus is on applicants to prove existing use or lawful continuing use rights exist and on the Council to demonstrate if any such rights have been abandoned.

34. The only other key relevant provisions from the LEP relate to flood planning at cl 7.2 as follows:

7.2 Flood planning

(1) The objectives of this clause are as follows:

(a) to minimise the flood risk to life and property associated with the

use of land,

(b) to allow development on land that is compatible with the land’s flood hazard,

(c) to avoid significant adverse impacts on flood behaviour and the

environment.

(2) This clause applies to:

(a) land identified as “Flood planning area” on the Flood Planning

Map, and

(b) other land at or below the flood planning level.

(3) Development consent must not be granted to development on land to

which this clause applies unless the consent authority is satisfied that

the development:

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting

in detrimental increases in the potential flood affectation of other

development or properties, and

(c) incorporates appropriate measures to manage risk to life from

flood, and

(d) will not significantly adversely affect the environment or cause

avoidable erosion, siltation, destruction of riparian vegetation or

a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs

to the community as a consequence of flooding.

35. Development on the site is also subject to the provisions of the Singleton Development Control Plan 2014 (the DCP). There are various controls dealing with flooding, stormwater management, parking, setbacks and landscaping.

The site and locality

36. The site comprises four lots with a total area of 5151.7m². It has primary vehicular access from Carrington Street and additional access from Church Street. The property address is 32-34 Carrington Street (two lots) and 51-53 Church Street (two lots but referred to only as 51 Church Street by the parties). The locality is Glenridding although the site’s location is on the outskirts of Singleton.

37. The site is adjoined to the south east by a bus depot at 37 Carrington Street and a single dwelling at 55 Church Street. To the north east, the site is adjoined by the rear yards of two dwellings known as 30 and 31 Victoria Street. Immediately to the east, across Church Street, is a single dwelling being 32-33 Church Street. To the north west, there is vacant land whilst to the immediate west is a single dwelling known as 30 Carrington Street.

38. Adjoining development is therefore primarily of a low density residential character comprising aged dwelling stock on relatively small allotments. All of the properties are on flood prone land. The railway, used by coal trains, is located in relatively close proximity being some 60m from the site. A noise barrier adjoins the railway in this location.

39. It was acknowledged by the parties that the site was the subject of flooding, had previously been flooded, and was identified as flood prone in the LEP.

The historical use of the site and the relevant planning controls

40. Mr Williams, counsel for the applicants, argued that the Order issued by the Council was being resisted as the site benefitted from existing or continuing use rights for the truck depot component and development consent was being sought and should be granted for the balance of the uses of the site now sought as this additional development would have negligible impacts and ought to be approved. Further, the timeframe to cease using the site required by the Order was unreasonable.

41. At the commencement of the hearing, the Court heard from a number of residents who had previous association with the use of the site. This included Ms Tyler, the partner of Mr Baker who owned 51 Church Street and 32 Carrington Street since circa 1980 until his death in 2002 and Mr Oldknow who purchased the properties after Mr Barker’s death, and also 34 Carrington Street, and used all of these properties for his earthmoving business, Oldknow Earthmoving and Haulage.

42. Evidence from people previously associated with the site indicated that, since at least the mid-1950s, parts or all of the site were used at various times for: storage and repairs of trucks used for general haulage; the building and distribution of fruit packing crates involving logs being split on the site; for timber processing and storage; for a sand and gravel business, and for the storage of miscellaneous heavy equipment including loaders and trucks serviced by a workshop on the premises.

43. The evidence was that, during the 1980’s, the properties were consolidated by the Oldknows as one yard to form the site at which time it ceased being used for any form of timber processing other than occasional timber storage. It was used by Oldknow Earthmoving and Haulage including for the parking and repair of trucks. A maintenance shed existed on the site and vehicular access was from both Carrington and Church Streets.

44. Evidence was also given to the Court by expert planners for both parties, Mr Garry Warnes for the applicant and Mr Peter Fryar for the Council. The planners had undertaken investigation into the previous use of the site.

45. Mr Warnes had prepared a chronology of the known history of uses of all four lots (three properties) since around 1960. In summary, this indicated that 51 Church Street and 34 Carrington Street were both used for a range of purposes that could be classified as rural industry (including log processing) and truck depot since prior to 1966 when no consent was required for such uses. In his view, at least the truck depot, and arguably the rural industry use, was continuous on these properties. The use of 32 Carrington Street prior to 1974 was not known but it was owned by a truck driver.

46. In 1966, the first zoning of the site occurred with the gazettal of the Singleton and Patrick Plains Planning Scheme Ordinance (PSO). The parties agreed that this was the first relevant planning instrument in determining the uses requiring consent and in terms of establishing existing or continuing use rights for all or part of the site.

47. The PSO zoned the site Non-Urban 1b. Within this zone, a number of uses were permissible with consent if they were defined but not otherwise listed as prohibited or if they were not defined. Permissible uses subject to consent included ‘rural industry’ and ‘sawmill’. A ‘timber yard’ was listed as prohibited but was not defined. A ‘truck depot’ was an innominate use (ie not defined or listed) and was therefore also permissible with consent.

48. The definition of ‘rural industry’ in the PSO meant (an industry) handling, treating, processing or packing primary products, and included the servicing in a workshop of plant or equipment used for rural purposes in the locality. A ‘sawmill’ was defined as a mill handling, cutting and processing timber from logs or baulks.

49. In their expert joint report, the planners agreed that 51 Church Street and 34 Carrington Street more than likely had continuing use rights for the purposes of a truck depot but that the use of these properties for sawmilling or log processing had ceased by 1983 and 1991 respectively. They disagreed on whether rural industry as such had ceased.

50. The planning experts agreed that there was no evidence that 32 Carrington Street had continuing use rights for a truck depot or rural industry, as there was no evidence of the use of this property before 1966, unlike the balance of the site.

51. Specifically, the planners agreed that the use of the site prior to the PSO did not require consent and that when the 1996 Singleton LEP was gazetted the use of ‘truck depot’ was defined for the first time. It encapsulated the usage being undertaken at the time on 51 Church Street and 34 Carrington Street, including the storage, servicing and maintenance of trucks and equipment associated with a general haulage, earthmoving, sand and gravel business. These would have therefore been existing (continuing) lawful uses.

52. The evidence in the expert planning joint report was also that the use of the site for a truck depot and for a rural industry (log processing) was permissible with consent over the years since the PSO came into effect under various subsequent planning controls including the 1996 and 2013 LEP’s. They are therefore not existing uses in terms of the definition of such uses under the Act. The issue was therefore whether or not they were lawful continuing uses, no consent ever having been sought, granted or seemingly required by the Council under any planning instrument for these uses.

53. However, having heard the evidence of Ms Tyler associated with the historical use of the site, Mr Fryer’s oral evidence was that 51 Church Street and 32 Carrington Street may have forfeited any continuing lawful use rights upon the death of Mr Baker in 2002 as it was not sold to the Oldknows until 2004 and the use may therefore have been abandoned.

54. However, the evidence to the Court from Ms Tyler and Mr Oldknow suggested it was at least used on occasions for various activities associated with its past usage, including storage and occasional repairs of heavy equipment, retained the vehicle maintenance shed, and was not used for any other purpose prior to its purchase by Mr Oldknow.

55. Mr Pickup accepted that if the intent was to sell the property as a going concern the use of it may not have been abandoned. But for the period between 2002 and 2004, the Council accepted that 32 Carrington Street and 51 Church Street (being the majority of the site) did have continuing lawful use rights for truck parking and maintenance, if not specifically for the use subsequently defined as ‘truck depot’. There was no lawful continuing use right for such uses at 34 Carrington Street.

56. It was the Council’s contention that, whatever the history of uses, any use of any part of the site for a rural industry comprising log processing had been abandoned by the time of the applicants’ purchase and as such this aspect of the proposed development now required consent.

57. Mr Fryer advised the Court that, irrespective of any existing continuing use rights, based on a merit assessment, the proposed use was a less intense use of the site than it appears to have been used for at times in the past particularly when the Oldknows had large earthmoving equipment on the site. He was however, concerned with log splitting and processing primarily from an acoustic impact perspective but conceded this was a matter for the acoustic experts to address.

58. Mr Williams contended that continuing use rights across part of the site by extensive case law extended across the whole site, as delineating the portions of the site that may have the rights was a meaningless and difficult task. Alternatively, the log storage and processing could arguably be considered an ancillary use to the predominant and lawful use of the site as a truck depot given Mr Scott’s evidence on this use as a side business to his core business and that he could store a variety of material onsite associated with its use as a truck depot, including timber.

59. Mr Pickup disagreed that the log processing aspect of the proposed use of the site was ancillary to the principal use of truck depot contending that the storage and processing of logs was not ancillary to that principal use but rather an independent use that would either need to be proven to also benefit from continuing use rights or require development consent to continue. In this regard, there was a separate land use definition for ‘rural industry’ and ‘log processing’ which covered the specific uses proposed and the application sought approval for this specific use and did not argued it was ancillary.

60. Mr Pickup also argued that, as the site comprised four different lots (with three street addresses) which had been used and/or occupied by different parties at different times, it was important to establish which lots benefitted from lawful use rights for certain uses, what those uses were and whether in fact they had been abandoned.

61. Mr Pickup also contended that, as a truck depot was not defined in the 1966 PSO, it could be argued to be a use at that time falling into the category of ancillary to the rural industry use of 51 Church Street and 32 Carrington Street at the time, being timber processing and primary product transport rather than a discrete use in its own right. If it was categorised as part of that rural industry, it arguably ceased to have continuing use rights when the rural industry uses ceased in the early 1980’s to be replaced by the earthmoving and coal, sand and gravel haulage businesses run by Mr Baker.

62. This argument was not presented to the experts albeit Mr Warnes did argue that, in his view, rural industry could include haulage of extractive resources such as coal and sand. Mr Fryer did not agree with this categorisation.

Acoustic Impacts

63. A primary issue of concern to the Council and adjoining residents was the acoustic impact associated with the use of the site in particular the chainsaws and splitters used for log splitting but also the movement, turning, loading and unloading of mulch. The Council was particularly concerned that insufficient information had been provided with the application to demonstrate that the use and development of the site would not create unacceptable acoustic impacts on adjacent residential properties.

64. Reference was made to various parts of the DCP which require that development does not have adverse impacts on the environment and that consent not be granted unless the consent authority is satisfied that a development is designed, sited and will be managed to avoid any significant adverse environmental impact. Schedule 5 of the DCP also provides that, when a development is likely to generate or be subject to substantial noise or vibration impacts, an Acoustic and Vibration Assessment Report is required to assess impacts and identify measures to avoid any such impacts. The applicants had not submitted such a report.

65. For the hearing, the parties had originally agreed to accept a single acoustic expert, Mr Mark Bridges, to prepare an acoustic report. In his expert report, Mr Bridges indicated that, irrespective of whether or not use of the site is permissible, noise levels from all existing and proposed activities must be assessed to identify any existing or potential noise impacts on neighbouring dwellings.

66. The following are the relevant findings from Mr Bridges’ report:

1. The site is located in a relatively quiet rural residential area with minimal local traffic noise. Nearby residential properties however, receive significant occasional noise from the nearby railway particularly from passing coal trains despite the existing railway noise barrier.

2. The most relevant noise policy applying to developments of this type is the NSW Industrial Noise Policy (INP) published by the EPA in 2000. The INP was originally intended to apply to larger industrial developments that require licensing. It was therefore not entirely suited to the small industrial development on the site however Singleton and other NSW Councils consider it the most appropriate policy to apply. The INP contains recommended noise criteria and assessment procedures for existing and proposed developments.

3. Existing developments, such as that already on the site, have more limited opportunities than new developments to apply noise controls or mitigation measures to achieve modern noise criteria and are consequently treated with some leniency by regulators. Common is to require a Pollution Reduction Program (PRP) from operators to at least meet minimum amenity criteria and to continue noise mitigation works over time to eventually meet the required noise criteria.

4. Activity on the site would rarely produce continuous noise throughout the day which would also be seasonal (eg firewood processing). Some activities such as turning or loading woodchips (mulch) have the potential to produce significant noise albeit this may only be for a short period of time.

5. The appropriate noise criteria to apply was not clear cut and it may be difficult to develop appropriate consent conditions should the Court decide to both grant consent and adopt flexible noise criteria.

67. Mr Bridges concluded that the calculated noise levels for the activities sought in the application would be significantly above any reasonable noise criteria limit and was would result in very significant exceedances of the INP criteria. The dominant source would be chainsaws, generally followed by the bobcat, trucks, the splitter and utility vehicles.

68. In Mr Bridges’ opinion, based on the calculated noise levels, the application was not approvable in its current form. He therefore recommended that the Court refuse the application on the basis that insufficient information was provided to demonstrate acceptable acoustic impacts (as contended by the Council) or alternatively that sufficient information was provided however, an analysis of the information shows acoustic impacts would be unacceptable at a number of nearby residential properties.

69. Alternatively, Mr Bridges advised that the Court could permit the applicants to redesign the development to achieve acceptable noise levels including significantly increased noise barriers and/or buildings to contain noisy activities. The optimum solution would be a combination of quieter equipment and amendments to the development to increase setback distances and provide acoustic shielding.

67. Given the findings in Mr Bridges’ report, the applicants sought, and were granted, leave of the Court to appoint Mr John Sleeman as an acoustic expert to respond to the issues raised by Mr Bridges.

68. Mr Sleeman was to consider reasonable and feasible mitigation measures as may be found in a PNP which could be incorporated into the application. These included fencing of the site and enclosure of log sawing and splitting activities.

69. A joint expert acoustic report was subsequently prepared by Mr Bridges and Mr Sleeman. In evidence, there was some disagreement by the experts as to the applicability of Chapter 10 of the NIP which is headed: “Applying the policy to existing industrial premises”.

70. Mr Williams contended that the INP was an advisory document only and a PRP was an appropriate mechanism to assist enterprises in collaboration with the regulatory authorities to work out the best way for an industry to move forward given its continuing existence. The experts agreed noting that having no formal consent did not necessarily make an industry unlawful as many old industries were established without such consents.

71. The experts did agree that Chapter 10 could apply to additional proposed activities of established uses where an existing lawful use is demonstrated, where feasible and reasonable noise mitigation measures have been proposed and will be applied, and where the consent authority is satisfied that the proposed noise impacts are justified in the circumstances. It was also agreed that any new use which is not an agreed existing lawful use should have more stringent noise criteria applied, essentially meeting full compliance with EPA guidelines. Therefore exceeding regulatory noise levels would be difficult to justify if this was caused by a new use of the site.

72. In essence, the experts assumed that the truck depot was a lawful continuing use across the site and the same was potentially the case for the storage and handling of logs and mulch, however, the splitting of logs for firewood was a new activity. However, it was up to the Court to determine the lawfulness of all these uses. Either way, Mr Sleeman argued it was not reasonable to force the applicants to have to relocate their business given the costs involved and long history of industrial use of the site.

73. Mr Williams also argued that, as dwellings wouldn’t be approved on the site given it was flood prone, there were limited other uses available for the site, and the applicants were proposing mitigation measures within their capacity to provide them and retain a viable business. This included a proposed acoustic fence and landscaping. He also noted that adjoining residents are already subject to considerable noise from passing coal trains although Mr Bridges argued that the community distinguishes between noise sources that benefit many rather than those that may benefit an individual, and the noise regulations recognise this in approving uses such as railways.

74. Mr Bridges argued that even adopting the measures offered by the applicant, the Court, if approving the application as proposed, would be permitting extra noise emanating from the site therefore impacting on adjoining residents.

75. Irrespective of the findings on the lawfulness of the uses, the experts agreed, there had to be a reasonable level of amenity for neighbours and that the operator of the site had to undertake reasonable and feasible measures to achieve this bearing in mind past uses of the site would likely also have exceeded acceptable noise levels. Such measures, in addition to construction of a shed, or utilising noise attenuating equipment, would include the proposed acoustic perimeter fencing and controlling hours of operation.

76. Mr Bridges believed this means operations of noisy activity on the site should not commence prior to 7am, with no operations on Sunday, to minimise sleep disturbance, albeit noting that adjoining residents included shift workers.

77. Mr Warnes argued that the majority of the site had operated for a number of years for lawful uses without any constraint on hours of operation. Mr Fryer, was concerned that any consent did not try to limit the hours of different uses on the site as this would be difficult to enforce.

78. The acoustic experts agreed that the noise from truck movements could be justified given it was an existing use and that limited additional mitigation measures were available to reduce these levels. One such measure offered by the applicants was to designate a truck parking area adjacent to the bus depot and away from the Victoria Street residential properties to minimise impacts from early morning departures. This location would be closer to the residents of 55 Church Street who had lodged a written objection, and to 30 Carrington Street. However, Mr Williams noted that the residents of No. 30 had not objected to the development despite also being a directly adjoining property.

79. It was also agreed that the noise impacts from the external use of the bobcat would be reduced by the proposed perimeter fencing but could be further reduced by installing a sound kit on the machine.

80. The acoustic experts also agreed that noise levels from log and firewood processing could be mitigated by constructing a shed to internalise chainsaw and splitter noise if log and firewood processing were found to be lawful existing uses. If not, it would be difficult to justify them as new uses of the site. Irrespective, without the acoustic shed constructed, any log processing should be limited to storage of logs and firewood on the site.

81. An indicative location of the proposed shed was shown on amended plans. However, Mr Williams indicated the applicants were not in a financial position to erect the shed at this stage and suggested consent should be issued to enable the shed to be constructed as a future stage of development with no chainsawing or log splitting to occur on site until the shed was erected.

82. In summary, the acoustic experts agreed that the Court’s consideration of acoustic issues would be strongly affected by the determination of existing lawful use of the site. If continuing lawful rights are not demonstrated then there was agreement that the predicted noise impacts of all of the proposed activities would normally be sufficient to justify refusal of the application or at least weigh against the application in the Court’s merit assessment. If existing lawful use rights were demonstrated, it was considered that the Court may be able to justify the significant but intermittent predicted noise impacts. These were expected to be similar to or lower than the noise generated by past uses of the site.

Flooding

86. The Council contended that there was insufficient information provided to be satisfied that the development complied with the objectives of the flood planning provisions of the LEP; in particular that the development would be compatible with the flood hazard of the land and would not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties.

87. The site is located in an area identified as being a High Hazard Floodway in the Singleton Floodplain Risk Management Plan (RMP). In the RMP, areas classified as High Hazard Floodway are considered unsuitable for residential, business or industrial zonings.

88. The Council was particularly concerned with the flood implications of the mulch storage bund wall, but also with the mulch storage itself, the proposed colorbond fence, the use of a shipping container for firewood storage, and the unsecured storage of large logs. These concerns were also held by adjoining residents who claimed past flooding of the site would indicate such items would move in times of flood causing health and/or safety risks and property damage.

89. No Flood Study had been lodged and cl 7.2(3) of the LEP requires that consent not be granted unless the consent authority is satisfied that the development is compatible with the flood hazard of the land and would not significantly adversely affect flood behaviour resulting in detrimental increases in flood affectation over other properties.

90. Expert evidence was provided on this issue by Mr Darren Lyons for the applicants and Mr Walter Moreno-Neisa for the Council (the engineering experts).

91. Mr Lyons prepared a flood impact assessment for the proposed development. His report noted that the flooding of the site is from mainstream flooding of the Hunter River where flood waters break the riverbank and flow in a north easterly direction towards the site. A major flood event occurred in June 2007. Updated hydraulic flood modelling for the area was undertaken following this flood. The report notes that peak flood waters at the site could approach 3m in depth and 1.5m/s in velocity.

92. Mr Lyons considered the principal change in terms of development of the site for consideration of flood risk impacts is the construction of the bund wall around the mulch storage area. The wall is of mass concrete blocks with dimensions of 13 x 9m and a total height of 2m. It could therefore be a flow obstruction to flood waters.

93. Modelling results indicated that the wall would have a negligible impact on the overall flood behaviour across the floodplain. There would be very minor localised impacts with floodwaters diverted around the wall. In major flood events, the wall would be overtopped by a significant depth therefore limiting the impact of the wall on flood flow distribution. Mr Lyons concluded that no existing residential properties would be within the zone of impact from redirected floodwaters associated with the development, with the majority of affected area located on the site.

94. In terms of the safety impacts of logs, and the environmental impacts of mulch, moving during flooding, Mr Lyons noted that during flood events there is extensive inundation across the Hunter River floodplain at Singleton and accordingly a significant debris load in the flood water would be expected under existing conditions. Any logs or mulch on the site would not be expected to significantly increase this load. Nevertheless, the applicants could consider measures such as anchoring or chaining the largest logs to prevent potential offsite transport. My Lyons considered this to be a viable flood management option given the nature of flooding in the area provides a significant flood warning time and Singleton is serviced by an existing warning system. This would enable action to secure any logs prior to major flooding and the procedures could be documented in a site Plan of Management.

95. Although not addressed in his report, in evidence Mr Lyons concluded that it would be unlikely that there would be any adverse impacts on adjoining properties from a storage container moving during a major flood event, albeit adjoining residents claimed containers had moved on the site in the 2007 flood.

96. Mr Scott advised that he would accept a condition to chain the logs down to footings to make them safe in the event of a flood. He claimed to be familiar with the flooding risk and well aware of safety procedures in a flood event and believed there would be ample time to chain the logs.

97. Mr Scott also agreed to limit the height, and therefore the size, of the mulch stockpile to minimise the impacts of mulch entering flood waters.

98. In the joint expert report, Mr Moreno-Neisa, having reviewed Mr Lyons’ report, agreed that the scale and nature of flooding impacts of the proposed development would be negligible with no changes required to the development.

99. However, during the hearing, there was extensive discussion as to whether the fencing and landscaping proposed as part of the application to address amenity and/or acoustic concerns would have an adverse impact on flood behaviour or be removed by flooding.

100. In response, the applicants offered to amend the application to alter the perimeter fencing from colorbond and chain wire fencing to a lapped and capped collapsible timber form so that, in times of major flood events, the fence would effectively hinge with the flood waters and contain flaps to allow water through. Mr Lyons advised that a condition could require that a hydraulic engineer design such a fence.

101. Mr Lyons did accept that the perimeter landscaping would need to be of a type and location that did not interfere with the operation of the fence in a flood but he did not consider that landscaping would significantly hinder either the flood or any fencing designed to respond to a major flood event. Nevertheless he recommended that gaps be provided between the trees in the location of the fence flaps to enable them to operate as intended during minor flooding events.

102. Ultimately, the Council was not convinced as to the adequacy of measures to manage the site in times of flooding, noting there was no Plan of Management to manage the site despite Mr Lyons suggesting it could be a tool to ensure safe procedures in times of flood.

Stormwater and water quality

103. The Council contended that there was insufficient information provided to assess or manage stormwater impacts and achieve positive water quality outcomes. Specifically, the Council was not satisfied that adequate arrangements had been made for stormwater drainage or onsite conservation.

104. The Council sought to ensure that the post-development run-off from the site would not exceed the pre-development run-off and that the design of the stormwater drainage and discharge system would be sustainable The Council referenced compliance with the Council’s engineering design specifications to achieve stormwater quality outcomes as sought in the DCP. No stormwater assessment report had been submitted with the application as was required by the DCP.

105. Expert evidence was provided on this issue by the engineering experts.

106. Mr Lyons noted that the existing site has no formal drainage for its (historic and existing) uses. He understood that there was no formal stormwater drainage network in the street system and local stormwater run-off from the site would typically infiltrate through the ground (given the site was largely pervious) and pond in local depressions on the site.

107. Further, the mulch storage area would be isolated and drain to the lowest point and Mr Lyons noted that the surrounding area was typically agricultural in nature (leading to existing high nutrient levels in stormwater runoff) and that neither the site nor the surrounding areas drain into sensitive receiving water environments. In his view, no specific stormwater management should be required for the site given the proposed development provides for no change in impervious areas or in the site’s general topography and therefore would not change the volume or discharge rate of stormwater from the site. Further, whilst the DCP controls may require all weather construction, in his view the existing areas were heavily compacted and largely acted in this capacity.

108. In the joint engineering expert report, Mr Moreno-Neisa agreed that the nature of stormwater runoff from the site did not significantly change (as a result of the development) nor would it adversely impact neighbours. Specifically, he agreed that the scale and nature of the development did not require additional stormwater management controls and the stormwater issues were resolved, with no changes required to the development.

109. However, in oral evidence, Mr Moreno-Neisa argued it was not unreasonable for the Council to require formal drainage to be contained onsite possibly with an open drain along the northern boundary to avoid runoff onto adjoining properties. Furthermore, a condition was sought to require sealing of the access, parking and yard areas to reduce contamination from pollution associated with use of the site.

110. Mr Lyons argued such conditions were unnecessary whilst Mr Williams contended that they were unreasonable given the site had been used as a truck depot since at least the 1960s without any formal stormwater system or sealed areas. Further that this evidence not in accordance with Mr Moreno-Neisa’s agreement in the joint engineering expert report that the scale and nature of the development was such that it would not require additional stormwater management controls and that the stormwater runoff from the site would not significantly change as a result of the development.

111. Mr Williams also noted that part 2.4 of the DCP only requires modifications to the existing stormwater system on site where development would result in an increase or concentration in the amount of stormwater being discharged to the public system, and that was not the case in this instance.

112. Mr Fryer also accepted that, from a planning perspective, unsealed parking and access arrangements were not unreasonable in this location and context.

113. Finally, Mr Scott advised that Court that the existing surface of the yard, access and parking areas worked well in wet conditions and his site tended to take stormwater flow from adjoining residential properties rather than the reverse.

Setbacks

114. Part 2.11 of the DCP requires a 10m setback from side and rear boundaries in the RU1 zone to provide a measure of privacy and amenity for adjoining properties and to minimise conflicts between uses. The application sought approval for the 2m high bund wall in the north western corner of the site. This had a length of 9m only one metre from the side (western) boundary and of 13m three metres from the rear (northern) boundary.

115. The Council did not seek 10m setbacks accepting that these generally applied to rural properties and would unreasonably constrain any use of the site. However, 3m setbacks were sought for the bund wall. The applicants amended the proposal to achieve this.

116. However, in response to Mr Lyon’s evidence on flooding, Mr Fryer considered greater setbacks may be required to accommodate the collapsible fencing recommended and the perimeter landscaping which would need to be located so as not to impede the ability of the fence to operate as designed in the event of flooding.

117. Mr Warnes argued both fence and the landscaping could be accommodated within the proposed setback area and landscaping species could be chosen and planted to accommodate the fence requirements.

Impact on sewer line

118. The site has sewer lines traversing its western and northern boundaries and also diagonally across a portion of the site. The Statement of Environmental Effects submitted with the application stated that, in preparing the proposal, advice was sought from Council’s Sewer Services Division in relation to the placement of structures over the sewers. Advice was received that the placement of the bund wall over the diagonal sewer would be acceptable but a cover of the sewer along the northern boundary should be avoided. Accordingly the wall had been sited to avoid covering the sewer along the northern boundary.

119. In evidence, Mr Scott indicated that he had constructed the wall after talking to the Council. He claimed that he was advised by a Council officer that stacking the blocks above the sewer that goes directly across the land would not impact the integrity of the pipes as they were 1.5m below the surface and that there was no discussion about the sewer pipes which followed the boundaries given the bund wall was not constructed in this location.

120. The Council however, contended that there was insufficient information provided to be satisfied that the concrete block bund wall would not impact on the sewer pipes. The Council sought information from a structural engineer identifying the zone of influence of the bund wall and confirming that there would be no impact upon existing sewer pipes.

121. Mr Lyons, a civil rather than structural engineer, undertook an assessment of the loading conditions of the wall noting that it comprised massed interlocking concrete blocks weighing 0.5 tonnes each. When compared with loading from typical heavy vehicle traffic on the site, the block wall loading provided a lower loading condition. Given there had been no damage reported to the sewer line from heavy vehicles accessing the site, and a routine inspection by the Council in 2015 indicated the sewer was in good condition, he concluded that there would be no adverse impact on any sewer from the bund wall.

118. In the hearing it was subsequently further argued by the applicants that the location of the bund wall now proposed was outside the zone of influence of the sewers. Nevertheless a condition was agreed by the applicants requiring the wall to be designed by a structural engineer and plans to be submitted showing the zone of influence from the footings in relation to the sewers.

Other potential amenity impacts

123. The Council contended that there was insufficient information provided to assess air quality impacts including dust and odour arising from the cutting of firewood and the movement and storage of mulch. As no Air Quality Assessment Report had been provided as required by the DCP, no measures had been identified to avoid and manage any resultant air quality impacts. Residents had also raised a concern with fire risk.

124. The applicant relied on the advice of the Council’s EHO on this issue which indicated odour, dust or fire would not be an issue subject to appropriate management.

125. Mr Scott also disputed that there was an adverse risk from the storage and composting of the mulch stockpile. He stated that he was managing the mulch in accordance with EPA guidelines. He also agreed to a condition of consent requiring this and limiting the height of the stockpile to 2m.

126. Residents had also raised the issue of light spill from the maintenance shed. However, Mr Oldknow’s evidence was that the existing shed lighting was there at the time of his purchase of the property (so had been there since at least the early 1980’s). The applicants also accepted a condition precluding any floodlighting of the site outside agreed hours of operation and for it to be controlled so as not to cause any disturbance to adjoining residents.

Conditions in dispute

127. At the conclusion of the hearing, the parties had not agreed on the conditions of any consent. They were directed to file agreed conditions (together with submissions on any disagreed conditions). In September 2017, the conditions were filed with 15 conditions in dispute. I will briefly deal with those disputed.

128. Firstly, the Council sought an increased landscaped setback from the western boundary to 5m to accommodate the required collapsible flood fence and landscaping. In this regard, Mr Fryer had expressed concern in relation to the landscaping arrangement impeding the collapsible fence and suggested that the setback either be increased so that any landscaping was clear of the collapsible fence, or alternatively alter the design of the landscaping arrangement. The applicants opposed this condition arguing it wasn’t necessary, the prospect of a 5m setback was not discussed in evidence, and a setback increase to 5m would impact access arrangements to the site.

129. Related conditions were in terms of landscaping details including whether a further landscape plan should be required and the depth of the landscape strip on the eastern boundary, with the amended plans indicating 3m, the Council requiring 3m and the applicants arguing for 1m. The location of permitter fencing on the western boundary was also disagreed as was whether or not species of landscaping should be conditioned.

130. A further disputed condition related to the future acoustic shed in terms of the level of noise emissions acceptable emanating from the shed, the type of chain saws which should be able to operate within it, and the wording of the noise limiting controls generally. The hours of operation commencing at 7am weekdays and Saturdays were agreed other than the applicants sought approval for parked vehicles to leave as early as 5.30am which was opposed by the Council.

131. As previously indicated, the requirement to construct an upgraded drainage system, and a condition stating this, was also disputed between the parties as was the necessity to seal the yard area. Similarly, the Council sought a condition requiring CCTV inspection of the sewer albeit a 2015 inspection indicated that the sewer was in good condition. This condition was opposed by the applicants on the basis it was not warranted on the evidence provided.

132. The details of a proposed Plan of Management were disputed in terms of the need to address dust or odour impacts and water management as well as light spill. The applicants argued that, to the extent that these issues were relevant, they were addressed by other conditions.

133. Finally, there were disputes about the specific wording on conditions dealing with securing logs and reference to the amended plans, as well as applicant concerns on condition duplication.

Findings

134. The first key issue to resolve in these appeals is to determine whether or not all or some of the current uses on the site have existing lawful continuing use rights and if so whether these rights apply to the whole of the site. The uses existing and/or sought on the site in the application were truck depot and sawmill or log processing works, the latter included within the definition of rural industry.

135. Both a truck depot and a rural industry are permissible uses in the RU1 zone subject to development consent. Therefore they do not meet the definition of existing uses in the Act being uses that are prohibited under the local environmental plan.

136. The issue is therefore whether lawful continuing use rights exist under s 109 of the Act and, if so, whether the use of the site should be allowed to intensify. If not, whether it is nevertheless appropriate to grant development consent for unlawfully commenced uses that are permissible with consent, namely a truck depot and rural industry (log processing). This includes whether or not it is appropriate to allow the uses across the full extent of the site.

137. From the evidence of a number of people formerly associated with the site, it was established that the majority, if not all, of the site had been used for a number of years for a use now defined by the LEP as a truck depot, noting the definition of truck depot includes the servicing and parking of trucks as well as earthmoving equipment and the like. The evidence also indicated that the site has, at times and in part, been used for log processing and for the production and distribution of fruit packing cases which are both rural industries.

138. The Council did not contend that at least the majority of the site was lawfully used for what is now defined as a truck depot. There was no evidence, prior to the Order the subject of the current appeal, that the Council had taken any action to remove or restrict such a use which had occurred since prior to the first relevant planning controls requiring use consents, which came into force in 1966.

139. Based on the evidence, I am satisfied that the site can continue to be lawfully used for a truck depot without consent. This includes storage of trucks and equipment reasonably associated with the applicants’ business.

140. It was not disputed that the use of 51 Church Street and 34 Carrington Street for activities now defined as a truck depot was established without the need for consent and that, at a latter date, this use was known to have extended to include 32 Carrington Street. Insofar as determining the extent of ‘the site’, I consider this to reasonably include 32 Carrington Street. In this regard, whilst there was no evidence that 32 Carrington Street was also used as a ‘truck depot’ prior to 1966, there was no evidence that it wasn’t and I note that, prior to its use by Mr Baker in 1986 for this use in association with 51 Church Street, it was owned by a truck driver. It is not an unreasonable assumption, given the property’s history and the use of the adjoining lots, that the owner of 32 Carrington Street in 1966 used it for truck parking.

141. In terms of the site being continuously used for its lawfully established use, I accept that, principally on the evidence of Ms Tyler, the use was not abandoned between 2002 and 2004. Her evidence was that the site was cleaned up for sale and little activity took place following the death of her partner, the then owner and operator of the site, Mr Baker in 2002, before it was purchased by the Oldknows in 2004 for use as an earthmoving business. Between 2002 and 2004 given the site was occasionally used for storage and repair of trucks and equipment, and the workshop retained, I find that the use was not abandoned and continuing lawful use rights were retained.

142. The continuing use of all of the site for a truck depot would arguably also be lawful based on the presumption of regularity that this use was established many years ago such that there is no record of development consent and has continued on the site without contention as to its lawfulness by the Council

143. Given my findings, I therefore do not accept the Council’s position that a truck depot could, in 1966, have reasonably been encapsulated within the definition of the rural industry occurring on the site at the time, since abandoned and therefore the lawful use for this use was also abandoned. The use of ‘truck depot’ was subsequently separately defined, including to house earthmoving equipment, and was therefore acknowledged to be a discrete individual use. The truck usage of the site was also not, on the evidence, necessarily confined to servicing a rural industry. Furthermore, this proposition was not put to the experts nor initially contended by the Council and accordingly I give it little weight. In any event it does little to determine whether the present application ought to be approved given the history of the use of the site over the past 50 or so years. Even if I am wrong in this regard, it does not preclude approval to the application before the Court as a permissible use with consent in the zone.

144. I do however, accept the Council’s argument that the site does not have an existing lawful use for a rural industry and specifically not for log processing. I do not agree with Mr Warnes that the definition of rural industry encapsulates coal, gravel and sand extraction but even if it does log processing remains separately defined and the former use of part of the site for log processing was agreed to have ceased. As with the truck depot, if I am wrong in this regard, it does not preclude approval to the application before the Court as a permissible use with consent in the zone.

145. Therefore, irrespective of my findings on the lawfulness of the existing uses, it was common agreement that those findings do not preclude me from granting approval to all of the uses proposed, including log processing.

146. The relevant consideration in these appeals therefore comes down to whether, on merit, the application should be consented to either under s 109A of the Act (being consent to unlawfully established uses) or as permissible uses under the current LEP.

147. The site, whilst in a Primary Production zone, is in fact located in a semi-urban context being on the periphery of the Singleton urban area with residential dwellings in close proximity including immediately adjoining. This means any use of the site, for a rural industry or for a truck depot, will inevitably have adverse impacts on adjoining residents

148. Whilst I accept that when the applicants purchased the site they believed they could reasonably use it associated with their business given the existing truck parking facilities, equipment, storage, maintenance shed and past use of the property, I also accept the advice from adjoining residents that, since the applicants purchased the property, it has on occasions been used inappropriately and illegally, with indications of people staying on the property and retail sales from the property. However these uses have ceased and are not sought in this application.

149. The site also appears to have been used by the applicants for more extended hours, including early morning operation, than previously, or as originally sought in the application, as well as for the storage, chain sawing and splitting of logs and storage of woodchips/mulch; activities which have caused amenity impacts and concerns for neighbours, a number of whom are shift workers.

150. The site and surrounds have also been substantially flooded in recent memory, including in 2007, causing concerns from adjoining residents as to the safety issues that could arise from intensification of the use of the site, in particular the storage of logs and mulch, the bund wall and new fencing, should flooding again occur, as is anticipated by the planning controls.

151. Notwithstanding the adverse impacts caused to neighbours from recent use of the site, an arguable benefit to them of the application is that, if approved, it would allow controls to be imposed on the operation and use of the site for a lawfully established use, and for site improvements which would in part address their concerns. In other words, given my finding that the continuing use of the site for a truck depot would be lawful, there is no ability to control operating hours, or require improvements such as boundary fencing or flood attenuation for this aspect of the site’s use.

152. This does not however, mean that adjoining residents should have to accept intensification of the use which brings additional adverse amenity impacts such as the chain sawing or splitting of logs which the acoustic experts agreed could not be reasonably undertaken on the site without the construction of an acoustic shed, and control of bobcat use, to meet noise regulation requirements given the proximity of adjoining dwellings.

153. The applicants purchased a property which had an ‘industrial’ use on it but which was heavily constrained both by the proximity of adjoining dwellings and by its location in a high flood hazard area with evidence, not disputed by the applicants, of significant past flooding events which affected the site and adjoining properties and will likely re-occur. The Court must have regard to these constraining factors in considering appropriate ongoing use of the site.

154. Conversely, whilst there was no definitive evidence on what exact uses existed continuously over which portions of the site at which time since 1966, it was not disputed that for at least the last 50 years (and likely before most of the adjoining residents moved into their homes) it was used for an industrial purpose primarily for those uses typically associated with a truck depot. It was also not disputed that there are limited alternative uses for the site available to the applicants given the Council would now not permit a house on flood prone land.

155. It is therefore in my view unnecessary to explore in any detail the case law to determine how much of the site had continuing lawful use rights, the details and changing nature of those uses, and how they were operated or what impacts they had on whom. The Council has not, until the applicants intensified the use of the site, sought to regulate or cease the industrial use of the site. The applicants now propose to undertake works to mitigate adverse impacts that the continuing use of the site for lawful uses would not require.

156. In this regard, I note Mr Williams’ argument that the applicants have offered or accepted conditions restricting uses and hours and propose to implement noise reduction mechanisms within their financial means to do so, including new perimeter fencing and landscaping. I also note, however, that adjoining residents have clearly had grounds for objecting to previous operation of the site by the applicants and this was not disputed.

157. Therefore irrespective or perhaps because of the history of the site, in my view, the best and most appropriate outcome for both the applicants and the adjoining residents would be to control the use of the site through a development consent which recognises the likely existing lawful uses, and enables new works; both controlled by a consent which regulates and addresses the issues. In return, the applicants achieve some additional and ongoing use of the property in a manner which does not have unreasonable adverse impacts on neighbours.

158. Those adverse impacts are primarily associated with the storage of large logs on the property and their cutting and splitting for firewood, in particular the use of chainsaws and block splitters. The adverse impacts of these uses are noise and potentially dust related. Furthermore, it requires that large logs are adequately secured in the time available from a significant flood event. If not secured, they would potentially cause adverse safety impacts for adjoining residential properties.

159. Based on the evidence before me, I can not accept that it is appropriate to approve a development with a potential future stage involving the construction of the shed required to minimise adverse impacts from the chain sawing and splitting of logs on the site to achieve appropriate noise criteria.

160. I also do not accept Mr Williams proposition that log storage and processing onsite should be considered an ancillary use to its primary use as a truck depot. It is a discrete and separate activity not typically associated with truck depots and separately defined in the LEP. It is also a new use sought to be introduced by the application which has new and adverse impacts on adjoining residents.

161. Conversely, I accept that mulch storage is a typical and important by product of the applicants’ business. Whilst having some impacts, if managed as is proposed and required by the consent, including the use of the bobcat, with storage in a confined location, and with the acoustic fencing and perimeter landscaping, I consider the mulch storage proposed to be a reasonable ancillary use of the site.

162. Consent is therefore granted for continued use of the site for a truck depot with the ancillary use of storage, distribution and bulk sale of woodchips/mulch. Given the definition of ‘truck depot’ I have formed the view that the approved use of the site is for a ‘truck depot’, which enables the storage and maintenance of the equipment used by the applicants in their business as well as the storage and distribution of mulch as an associated ancillary use to this predominant use.

163. In return for granting this consent, the applicants are required to comply with conditions of consent which limit the hours of operation of the entire site, requires the provision of acoustic fencing designed to accommodate flooding, upgrades the access, installs appropriate perimeter landscaping, and manages the mulch storage on the site.

164. Consent is not granted for the other activities sought by the applicants which I do not consider to be ancillary to the predominant use and are instead defined as ‘rural industry’. Specifically precluded is log processing including the storage of logs on the site, the splitting of wood for firewood, any use of chainsaws or block splitters, and any other use of the property not otherwise approved in the consent. In limiting the consent in terms of precluding the log processing use of the site, I have done so on the basis that, in my view and on the evidence provided, it is not appropriate to permit or condition such new activities without, as a minimum, the prior construction of the shed required to achieve satisfactory noise emission from these uses as required by the acoustic consultants.

165. Whilst I accept Mr Scott’s evidence that log processing for firewood was a side business and by product of the core business of HCL Care, I do not accept the proposition that it is therefore ancillary and can occur or should be permitted on the site. The storing and processing of logs is a separately defined or independent use in the LEP and creates the greatest potential for new noise impacts which will not meet EPA regulatory requirements and potentially raises safety concerns at the time of flooding. There is no proposal to restrict where or how logs and firewood will be stored on site or any detail which would ensure this use did not become the predominant or dominant use of the site.

166. Given Mr Scott stated the log processing activity was not part of the core business of HCL Care, in my view, unless satisfactory containment and noise emissions can be achieved and further details provide on quantum and storage aspects of this use, there is no basis to allow the intensification of the use of the site to facilitate it.

134. Should the development be carried out and conducted in accordance with the consent and the applicants operate the site in a manner appropriate to its residential context and having regard to the proximity of neighbours, at the time that the applicants are in a financial position to construct the shed (required to address noise issues associated with log processing on the site), this consent does not preclude a future application for such a use to be lodged, assessed and approved for the site if appropriate.

135. Any such application would however, need to demonstrate that this shed, along with the fencing constructed and landscaping undertaken on the site, the log securement methodology proposed, and the operation of the site under the proposed consent would render such a use reasonable for the site. It would, in my view, also need to be demonstrated to remain ancillary to the core use of the site as a truck depot. In the interim such uses would have an unreasonable adverse impact on neighbours and are accordingly not approved under the Court’s consent.

136. The Order issued by the Council on 14 September 2016 under s 121B of the Act is revoked as consent is not granted to the uses which have already ceased under that Order and/or the consent now restricts the uses permissible on the property.

137. In terms of conditions, I agree with the applicant that there is no basis to require increased boundary landscaped setbacks to an arbitrary 5m if it can be demonstrated that the flood collapsible fence and the landscaping can be accommodated in the designated 3m. If designs can not achieve this, then the application will need to be amended.

138. It is however, appropriate for the Council to require an updated landscape plan which accommodates both the collapsible boundary fence and the required landscaping within the width of landscaping proposed for all boundary setbacks and landscaped areas as shown in the amended application plans being Exhibits Q, R and S to the proceedings.

139. There was no expert evidence of odour or dust emissions from the site however, the parties have agreed on conditions requiring treatment and storage of the mulch in accordance with EPA guidelines. The bund wall will assist in this regard and will also contain the mulch. An agreed condition requires that the stockpile not exceed 2 metres and I have worded the condition to confine mulch stockpiles to the storage area indicated on the application plans which will ensure this activity remains an ancillary use only.

140. Dust mitigation measures are also to be conditioned including the requirement for onsite sprinklers and a water tank. The issue of dust will also be reduced by the preclusions of any log storage or processing on the site.

141. Removal of the log processing activities means that it is not necessary for me to deal with the contended conditions associated with this use.

142. Other conditions agreed or imposed to address resident and Council concerns require a limit on the hours of operation to preclude operation on a Sunday or public holiday and not before 7am other days other than for vehicles departing the site, the designation of a truck parking area for early departing trucks and the control of erosion and sediment from the site. In my view, confining the location of parked vehicles leaving the site and given the past unregulated hours of operations, a 5.30am departure is warranted for these vehicles notwithstanding Council opposed this.

143. Upgraded driveway accesses are also provided along with provision of flood attenuating acoustic fencing, and maintenance of perimeter landscaping. Floodlighting is restricted to operating hours and is not to cause disturbance to residents or motorists.

144. An operational Plan of Management is also required to manage risks to the environment, minimise noise impacts to neighbours, manage disposal of waste and to deal with resident complaints. Truck maintenance is to be confined to the maintenance shed and the maintenance area sealed and bunded to prevent contamination in accordance with Australian Standards. Loose material on the site must be stored to minimise the chance of movement during flooding and mechanical equipment must be maintained in a manner to minimise noise and vibration with all bobcats and loaders to be fitted with a sound kit and any new equipment to have noise attenuating fixtures. Retailing from the site is prohibited.

145. The bund wall is required to be the subject of design by a structural engineer which includes the impact on the zone of influence of sewers traversing the site. I agree with the applicants that the requirement to inspect the sewer was not supported by the expert evidence and is an unreasonable impost given the design requirements condition, the good condition of the sewer at a recent inspection, the regular routine inspections by the Council, and the high loads over the sewers associated with the long use of the site by heavy equipment.

146. I also agree that, in particular having regard to the historic use of the site and its context, it is not reasonable or necessarily beneficial to require paving of the yard or the upgrading of onsite stormwater detention facilities, particularly given controls are tightened in terms of onsite contamination.

147. In summary, having regard to the intent of the Industrial Noise Pollution for existing industries to address noise issues to the extent that can feasibly achieved, I accept that the applicants otherwise are undertaking development which will improve the existing operation of the lawful use and enable some additional uses which justify these improvements which would otherwise not be required for continuation of a lawful use, namely the truck depot which includes heavy equipment use, storage and maintenance.

148. The conditions as I have worded them reflect in my view an acceptable compromise between what the parties sought and what should be required given the circumstances and what could reasonably be expected by adjoining residents.

149. To the extent that the development as approved has impacts, the impacts are minimised by the conditions of consent and are offset by the improved and now regulated operation of the existing lawful use of the site.

Orders

183. The orders of the Court are:

1. The appeals are upheld subject to the following Court orders.

2. The Order issued by Singleton Council to the applicants under s121B of the Act dated 14 September, 2016 is revoked.

3. Development Application DA253/16 to permit a truck depot (including the ancillary use of mulch storage and bulk sales), bund wall and associated works at 32-34 Carrington Street and 51 Church Street, Glenridding is approved subject to the conditions in “Annexure A”. The component of the application comprising the rural industry use of sawmilling or log processing (being the storage, sawing or splitting of logs or firewood) at the site is not approved.

4. The exhibits, except Exhibits K, Q, R, S and 3, are returned.

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Jenny Smithson

Commissioner

Annexure A (C) (420 KB, pdf)

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Decision last updated: 03 November 2017