Hy-Tec Industries Pty Limited v Parramatta City Council

[2015] NSWLEC 1047

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hy-Tec Industries Pty Limited v Parramatta City Council [2015] NSWLEC 1047
Hearing dates:	16 & 17 February 2015
Date of orders:	20 February 2015
Decision date:	20 February 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal Upheld
Catchwords:	Designated Development: Concrete Batching Plant; visual impact
Legislation Cited:	Environmental Planning and Assessment Act 1979; Parramatta Local Environmental Plan 2011; State Environmental Planning Policy No 33 – Hazardous and Offensive Development; State Regional Environmental Plan (Sydney Harbour Catchment) 2005; State Environmental Planning Policy 55 – Remediation of Land; State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	Hy-Tec Industries Pty Limited (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Mr S Nash (Respondent) Solicitors: Mr A Beatty, Beatty Legal Pty Limited Mr P Couch, Sparke Helmore Lawyers
File Number(s):	11069 of 2014

Judgment

1. Hy-Tec Industries Pty Limited lodged Development Application DA/203/2014 with Parramatta City Council on 15 April 2014 seeking consent for tree removal, construction and operation of a concrete batching plant with a capacity of 150,000cubic metres of concrete annually and for a temporary mobile concrete batching plant on the northern part of the site at Lot 1 DP 870814, Nos 4-6 Shirley Street, Rosehill. The council had not determined the application in the prescribed period and Hy-Tec appealed its deemed refusal. The council has subsequently refused consent.

2. The primary issues in the case were resolved during the hearing however the council had not issued instructions to enter into consent orders and did not wish to be heard on the second day of the hearing. The outstanding contention related to the submissions that had been received in relation to the application.

The site and the locality

3. The site is an irregular shaped corner allotment that contains a factory and storage building at the northern end and an office/amenities building to the south with the remainder of the site concreted. Demolition of 10 silos and infrastructure associated with the previous use of the site for mineral processing has taken place in accordance with a 2010 consent issued by the council. The site has frontages of 137.015m and 85.68m to Shirley and Unwin Streets respectively and area of 1.687ha.

4. The site is located in an industrial area, known as Camellia, with a long history of heavy industrial uses including the Shell Oil refinery, James Hardie asbestos factory and landfill, chemical and bitumen manufacturing industries. There are also other concrete batching facilities in the vicinity of the site. Rosehill Racecourse is located opposite and to the north of the site.

Background and the proposal

5. Hy-Tec currently operate a concrete batching plant in Auburn adjacent to the M4 motorway and has received notice of acquisition for road purposes from Roads and Maritime Services (RMS) requiring vacation of part of that site to allow construction of the Westconnex project. The effect of the resumption is that the site would no longer be suitable for the current operation and Hy-Tec is seeking an alternate site in the locality. The Auburn plant was visited during the site view as was the company’s more recent plant at Glendenning, a plant that is similar in operation and function to that proposed under this application.

6. The proposed works are summarised as:

• Construction of a laboratory, administration and amenities buildings, staff open space and carparking at the western end of the site;

• Construction of heavy vehicle wash bays, slump stands, batch conveyor and loading tower, silos and heavy vehicle parking bays for 19 vehicles in the centre of the site;

• Construction of underground storage facilities at the eastern end of the site;

• Two driveway access points off Shirley Street;

• Removal of 7 trees and replacement landscaping;

7. The plant would operate 24 hours per day, 7 days per week and employ 24 persons.

8. A temporary mobile concrete batching plant would be located on the northern end of the site and use the existing building as a storage facility for the raw concrete materials. This is required due to the timetable set by RMS for vacation of the Auburn site.

9. Due to the quantity of concrete to be produced at the site the development is designated development pursuant to the provisions of Section 77A of the Environmental Planning and Assessment Act 1979 (EP&AAct). An environmental impact statement was prepared and lodged with the development application as required under the Act. The council notified the application as required under s79 and received a number of submissions. The application was also referred to relevant state agencies to obtain necessary concurrences.

10. The issues raised in submissions are summarised as follows:

• Adverse noise, dust, traffic, air quality impacts;

• The proposal is inconsistent with recent strategic planning investigations and reports;

• Visual impact of the 24m silos when viewed from the Racecourse, said to have a negative impact on the amenity of the neighbouring community and reduce support for racing as they would be a distraction and an eyesore in the local area.

11. Parramatta City Council considered a report from its officers that recommended approval of the application at its meeting of 9 February 2015. Despite that recommendation, the council resolved to refuse consent on the following grounds:

• The road infrastructure in Grand Avenue, Camellia cannot cope with the additional traffic which will be generated by this proposal;

• The application does not comply with Section 4.3 of the Parramatta Local Environmental Plan 2011 in relation to Height of Buildings;

• The proposal will result in unacceptable social and environmental impacts;

• The proposal is not in line with recent Camellia Land Studies.

The planning controls

12. The site is zoned IN3 Heavy Industrial under Parramatta Local Environmental Plan 2011 (LEP). The proposed use is permitted with consent in that zone. Clause 2.3 of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the zone are:

•  To provide suitable areas for those industries that need to be separated from other land uses.

•  To encourage employment opportunities.

•  To minimise any adverse effect of heavy industry on other land uses.

•  To support and protect industrial land for industrial uses.

•  To allow a wide range of industrial and heavy industrial uses serving the Greater Metropolitan Area of Sydney and beyond.

•  To ensure that opportunities are not lost for realising potential foreshore access on land that is contaminated and currently not suitable for public access.

13. Part 4 of the LEP provides principal development standards with clauses 4.3 Height of Buildings and 4.4 Floor Space Ratio (FSR) relevant to the application. A maximum height of 12m and FSR of 1.0:1 applies to the site. Clause 4.6 provides for exceptions to development standards and the applicant relies on a written objection to the height control. The FSR is significantly less that the maximum.

14. Other planning instruments relevant to the assessment of the application are State Environmental Planning Policy No 33 – Hazardous and Offensive Development (SEPP33); State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP SHC); State Environmental Planning Policy 55 – Remediation of Land (SEPP55); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). The Draft Sydney West Central Subregional Strategy is also a document relevant to consideration of the application.

15. Parramatta Development Control Plan 2011 (DCP) also applies to the site.

The contentions

16. When filed, the council’s contentions were the proposal was not in the public interest; approval should not be granted having regard to the issues raised by objectors (would have adverse traffic and parking impacts, would impact on the amenity of neighbouring properties due to dust and noise emissions and visual privacy; the bulk and scale of the proposal is unacceptable in the streetscape since the silos exceed the maximum permissible building height by 100%; the proposal is inconsistent with the State Government and Council objectives that aim to increase employment; fails to meet the controls in the LEP and DCP, inadequate assessment of air, noise and traffic impacts and adverse visual impact on Rosehill Racecourse and patrons thereof, noise impacts may frighten racehorses or attendant horses putting jockeys, handlers and other persons at risk of injury); non-compliance with height control resulting in adverse visual impact on Rosehill Racecourse.

17. As the result of the applicant filing additional information in response to the council’s request for more information and the reporting process undertaken in preparation for the appeal, the council did not press any of the contentions other that the issue of visual impact from the Racecourse.

The evidence

18. Expert evidence was provided in the form of Joint Reports on Noise by Mr P Torres and Mr R Benbow (Exhibit F) and on Air Quality by Ms L Zanotto and Mr R Benbow (Exhibit G). These experts concluded that the impacts of the proposed development were appropriately managed and addressed through conditions of consent. They were not required for cross examination.

19. Dr R Lamb provided a Statement of Evidence on visual impact (Exhibit C), Mr G Morris on traffic (Exhibit D) and Dr A E Paxton-Hall on equine matters. The reports concluded that there would be no adverse impacts from the development. This evidence was not contested and the experts were not required for cross examination.

20. Expert town planning evidence was prepared by Mr N Juradowitch and Mr G Turrisi. They had disagreed as to whether the impact of the 24m silos was appropriate and whether the development standard for height should be varied.

21. The site view undertaken at the commencement of the hearing included observation of the site from the Private Box Suites and Members Area within the main grandstand at the racecourse. Two existing stacks and a light pole had been referenced during the earlier site view as assisting the Court in understanding the location of the site and the proposed silos. A survey of the light pole showed that its height at the top of the lights was RL26.878 (Exhibit J).

22. The applicant filed a report from Mr J Condon (Exhibit K) which detailed how the height of the silos could be reduced from 24m to 21m provided the diameter of the silos was increased from 4 to 4.5m, a net increase in width of the combined structures of 1m. As the result of that report, the council indicated it did not wish to be heard on the contention of visual impact as its expert, Mr Turrisi, indicated that on the basis of the amendments that capped the maximum height of the silos at 21 metres (RL26.48) and a maximum diameter at 4.5m, subject to the imposition of a condition that the external surface of the proposed silos be painted a dark green colour, the visual impact contention would be satisfied. His supplementary evidence was provided as Exhibit 5.

Conclusion and findings

23. The reduction in height of the silos still requires the Court to determine the objection to the height development standard as this is a precondition to consent being granted. The applicant relies on the first test in Wehbe v Pittwater Council [2007] NSWLEC 827 where Preston CJ, when considering similar provisions under State Environmental Planning Policy No 1, stated that the most commonly invoked way to assess whether it is appropriate to vary a development standard is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

24. The objectives of the height development standard are:

(a)  to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

(b)  to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c)  to require the height of future buildings to have regard to heritage sites and their settings,

(d)  to ensure the preservation of historic views,

(e)  to reinforce and respect the existing character and scale of low density residential areas.

25. The council’s contention was initially that objective (b) was not met.

26. Having regard to the evidence, the written objection lodged with the application and the principles in Wehbe, I concur with the conclusions reached in that objection and also those of the council’s assessment officer in the report to the council meeting of 9 February 2015 which comprehensively addressed the issue. The height of the proposed silos at 21m and coloured a dark green in accordance with the agreed condition would minimise the visual impact of the proposed silos. The proposed development is consistent with the objectives of the IN3 Heavy Industry zone. There are no issues in relation to transition in built form and land use intensity, heritage sites or historic views. The site is not within or near a low density residential area.

27. For these reasons, I am satisfied that the objection to the height development standard is well founded.

28. It is therefore necessary for a merit assessment of the application to be undertaken having regard to the relevant matters for consideration in s79C of the EP&AAct.

29. Having found that it is appropriate to allow the exception to the height development standard and after consideration of the evidence, I am satisfied that the development is consistent with the relevant environmental planning instruments and the DCP. There are no planning agreements applying to the application nor any matters identified in the regulations.

30. The environmental impact statement and the evidence contained in the reports before the Court satisfy me that the site is suitable for the development and that the likely impacts of the development can be appropriately managed through the imposition of the agreed conditions.

31. In relation to the submissions made in relation to the application, I am satisfied that all of those issues have been appropriately addressed in the evidence. I note correspondence included in the council’s bundle of documents that refers to an agreement entered into between the applicant and the Australian Turf Club (ATC). That letter indicates that subject to the terms of the agreement, the ATC’s concerns raised in its May 2014 submission to council in relation to visual amenity, views and any other view/vista related impact on racecourse related business would be addressed. I place no weight on that agreement in my determination of the application however do find it necessary to state that the agreed position of the experts is that the silos should be painted a dark green colour in order that they are consistent with the backdrop to the site which contains significant vegetated areas. In my opinion, it would not be appropriate that any advertising structure be added to those silos. I note that the amended plans and conditions provide for additional landscaping in appropriate locations on the site.

32. My conclusions on the above matters satisfy me that the application, subject to the proposed conditions, would be in the public interest.

33. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA/203/2014 for tree removal, construction and operation of a concrete batching plant with a capacity of 150,000 cubic metres of concrete annually and for a temporary mobile concrete batching plant on the northern part of the site at Lot 1 DP 870814, Nos 4-6 Shirley Street, Rosehill is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A and B, are returned.

______________

Sue Morris

Commissioner of the Court

11069 of 2014 Annexure A (175 KB, pdf)

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Amendments

16 March 2015 - assigned a [2015] medium neutral citation

25 February 2015 - Decision date amended.

Decision last updated: 16 March 2015