J W Hepburn Pty Limited v Hornsby Shire Council (No 2)

[2007] NSWLEC 206

Land and Environment Court

of New South Wales

CITATION:

J W Hepburn Pty Limited v Hornsby Shire Council (No 2) [2007] NSWLEC 206

PARTIES:

APPLICANT
J W Hepburn Pty Limited

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10030 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Child care centre
conditions of consent

DATES OF HEARING:

Plan of Management and submissions on conditions filed on 26 March 2007.

 
DATE OF JUDGMENT: 

13 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport, barrister
instructed by Ms J. Napoli
of Robert Napoli & Co

RESPONDENT
Mr I. Woodward, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

13 April 2007

10030 of 2006 J W Hepburn Pty Limited v Hornsby Shire Council (No 2)

JUDGMENT

1 On 12 March 2007, I handed down a preliminary judgement on this appeal (JW Hepburn Pty Limited v Hornsby Shire Council [2007] NSWLEC 169) and issued the following directions:

1. The Applicant is to serve a Plan of Management by 15 March 2007.
2. The Respondent is to provide any comments on the Plan of Management and draft conditions by 22 March 2007. The Draft conditions are to include monitoring of noise levels once the centre is operational to ensure the noise criteria are met.
3. Agreed Plan of management and conditions are to be filed by 26 March 2006.

2 Upon satisfactory completion of Directions 1-3, I would issue final orders in Chambers.

Parties response to Directions

3 The Plan of Management and draft conditions were filed on 26 March 2006. Council did not provide any comments on the Plan of Management. The following conditions were in dispute:

4 Condition 16 and 17. Council proposes that the conditions refer to the noise criteria agreed to by the noise experts, being background plus 10dB(A) for a maximum period of 1.5 hours and background plus 5dB(A) at other times. Council’s submission is that the background levels should be confirmed once the centre is operational and compliance with the criteria then monitored as required by conditions 18 and 19.

5 Council considers it is more appropriate that the measures such as numbers of children etc be included in the Plan of Management than as conditions. Any amendments to the operation of the centre and the Plan of Management required as a result of the monitoring can then be undertaken to satisfy the noise criteria, without amending other conditions of consent. Council also submits that it is more reasonable to enforce compliance with noise criteria conditions than conditions which require other measures such as numbers of children engaged in active play.

6 The applicant submits that it is more appropriate to include conditions that reflect the agreement of the noise experts. The applicant has proposed alternate conditions which specify the following alternate conditions:

16. A maximum of fifteen children in the age group of 1 to 2 shall use the front outdoor area for active play for a maximum of ¾ hours a.m. and ¾ hours p.m. A maximum of 15 children between the ages of 3-5 years shall use the rear outdoor area for active play for a maximum period of ¾ hour a.m. and ¾ hour p.m.

The use of the play areas by children aged birth to 1 year shall not be restricted and the use of the outdoor areas for non-active play such as mat activities, hand puppets, book reading, puzzles, dough, felt boards, drawings, finger painting, sand activities are not so restricted in times and numbers. Rostered activities are not controlled.”

17. The LAeq, 15 min noise level not to exceed ---

49dB(A) in the rear yards of 74A Burdett Street and 30 Palmerston Road Waitara
53dB(A) in the front yard of 30 Palmerston Road, and
56dB(A) in the front yard and at the upper level windows of No 34 Palmerston Road (the Rectory).

7 I accept council’s submission. The Laeq, 15 min noise level recommended by the noise experts is based on the background noise level at the time of the hearing and the estimated noise levels at adjoining properties achievable with restrictions of numbers of children and periods of outdoor play as well as attenuation provided by the acoustic fence. It relates only to the less stringent criterion of background noise plus 10 dB(A). This criterion is acceptable only for the limited period of 1.5 hours. At other times the noise criterion is background plus 5 dB(A). It is therefore appropriate that these criteria, rather than the estimated noise levels at adjoining properties, be incorporated into conditions and their achievement be monitored once the centre is operational. The measures in the Plan of Management can then be adjusted, if required. It is also appropriate that the background level be established at that time.

8 Condition 21. This condition requires on going monitoring of noise levels to ensure compliance. It was included by council in the draft conditions in response resident concerns but is objected to by the applicant on the basis that it is unnecessary and unreasonable. The acoustic experts have agreed that the centre can meet the noise criteria in conditions 16 and 17. For abundant caution this is required to be confirmed by the monitoring required by conditions 19 and 20, and any necessary adjustments are to be made. Conditions 16 and 17 impose noise criteria, which are enforceable by Council. It is unnecessary and unreasonable to impose a requirement for ongoing monitoring on the applicant once it has been demonstrated that the criteria can be complied with. I have therefore deleted this condition.

9 Condition 22. This condition requires the adjoining owners permission for measurement of noise levels on adjoining properties. The applicant’s submission is that the criteria are measured from the boundary with adjoining properties and that this condition is unnecessary. The assumptions made by the noise experts were based on background plus 5 and 10 dB(A) at the rear yards of 74A Burdett Street and 30 Palmerston Road, in the front yard of 30 Palmerston Road, and in the front yard and at the upper level windows of No 34 Palmerston Road. The monitoring may require access to these properties to ensure that criteria are met and therefore the condition is retained.

10 Acoustic fence. Council has indicated that the owners of 30 Palmerston Road object to the acoustic fence and wish to be consulted on the type of fence to be erected between the properties. Council has not included this as proposed condition and the applicant is opposed to this process.

11 The noise experts recommended 2.4 m high acoustic fences around the rear area and 1.8 m high acoustic fences on the northern and southern boundaries except at the frontage of the property where the acoustic fence may be decreased in height. The acoustic fences are to be lapped and capped timber fencing to 1.8 m and a perspex panel behind lattice where it exceeds this height. This fence is required to ensure that an acceptable noise environment is achieved for the adjoining neighbours.

12 I note that the plans before the Court indicate a 2.4m high acoustic fence along most of the northern and southern boundaries, which exceeds the requirements of the noise experts for a 1.8m fence along these boundaries. I have therefore included a condition in the consent, which reflects the recommendations of the noise experts and requires that the extent of the 2.4m and the 1.8m acoustic fence along the northern and southern boundaries be confirmed by an acoustic consultant. A condition has also been included which requires the provision of a 1.5m high pool type fence with perspex infill panels along the front boundary recommended by the noise experts.

13 The impact of the fence on residential amenity was considered during the hearing. A 1.8m fence is no different to a normal boundary fence and a 2.4m fence, as proposed would have an acceptable visual impact. The fence is required to mitigate noise impacts and is integral to the proposal. A condition requiring further consultation is not necessary given the details of the fence design provided at the hearing.

14 The residents of 30 and 37 Palmerston Road made further submissions direct to the Court in response to the Plan of Management and conditions required by the Directions. I understand that Council has considered the further submissions of the residents and included these, where it considered appropriate, into its submission. It would be inappropriate for me to consider the further submissions of the residents without a request from the parties to reopen the hearing. No request has been received.

15 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application (2172/2004) for a 32 place childcare centre with parking for 8 cars at 32 Palmerston Road, Waitara, is approved subject to the conditions in annexure A.
3. The exhibits, except Exhibits 6, and E, may be returned.

___________________

Annelise Tuor
Commissioner of the Court