Jonah Pty Ltd v Pittwater Council

[2004] NSWLEC 203

Land and Environment Court

of New South Wales

CITATION:

Jonah Pty Ltd v Pittwater Council [2004] NSWLEC 203

PARTIES:

APPLICANT
Jonah Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10062 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

04/03/2004-05/03/2004, 08/03/2004

DATE OF JUDGMENT:

03/08/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
SOLICITOR
BTS Lawyers

RESPONDENT
Mr D Parry, barrister
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

1

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10062 of 2004 C Bly 8 March 2004

Jonah Pty Ltd
Applicant

v Pittwater Council
Respondent Judgment


1. This appeal involves Pittwater council’s refusal of Development Application No 187/98 for alterations to Jonah’s Restaurant/Motel at 69 Bynya Road, Palm Beach. The application which is to amend the existing consent and the appeal were lodged pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the Act”).
2. In its initial form the application was to increase the area of the approved terrace by the removal of planter boxes and the relocation of a glass block acoustic wall and the provision of glass balustrades. The application has now been amended with some planter boxes being replaced with pebbled areas and others being removed, and the approved glass block acoustic wall on the terrace being retained but changed to translucent glass and extended in length. These changes have been detailed in Exhibit G.

3. The initial s 96 application was advertised and a number of objections were received. Concerns expressed in those objections involve car parking, stormwater, privacy, noise, bulk and scale.

4. The case began on site where a number of matters were discussed and explained including the above amendments. In attendance were the advocates and representatives of both parties, including experts. Also in attendance were objectors and a representative of the Palm Beach Association.

5. Whilst on site I heard evidence from Mrs M Studdy of No 73 Bynya Road and her town planning consultant, Mr N Ingham, and Dr G Miklos. This evidence mainly related to past noise impacts and loss of privacy. The privacy concerns were subsequently mitigated by the introduction of an obscure glazed balustrade and the extended translucent glass wall.

6. Also whilst on site I inspected the subject premises and the immediately neighbouring property to the North which is owned by Mr and Mrs Studdy.

7. As a result of the withdrawal of proceedings 10284 of 2000 and the amendments to the proposal, the issues were reduced to acoustic impacts and public submissions. Also, with respect to the withdrawal of proceedings 10284 of 2000, the respondent has raised the matter of costs, and this is to be heard at a later date.
8. The stated acoustic impact issue is whether the development as proposed to be modified in each proceeding will result in an unacceptable loss of amenity in terms of acoustic impact to the adjoining residential property at No 73 Bynya Road and to adjacent residential properties. In relation to this issue expert acoustic evidence was provided by Mr S Cooper and Miss T Gower. Relevant to this issue one aspect of the acoustic environment of Jonah’s was disputed by these experts, being the relevant ambient noise level for the purposes of condition D(2)(21) of the existing consent. This condition requires that the maximum noise level at any residential boundary adjoining the site shall not exceed 5dBA above the background noise level at any time.

9. It was contended on behalf of the respondent that in relation to present ambient noise levels these are likely to be such that this condition cannot be met by the present proposal. Nor could it be met by a development which complies with the existing consent. A number of ambient noise level measurements have been carried out over a period of time beginning prior to the original application until more recently.

10. Exhibit B indicates that these measurements range between 49 and 5dBA . In relation to these ambient noise levels it was contended that either the original measurements carried out prior to the granting of the existing consent were carried out incorrectly or alternatively the levels have actually changed since that time. Either way, the ambient noise levels are said to be lower now than when condition D(2)(21) was imposed. In these circumstances neither the approved nor the proposed physical noise mitigation measures, including acoustic screens, would be sufficient to restrict noise levels at the boundary of the adjoining residential property to the required 5dBA above background noise levels.

11. In response it was submitted on behalf of the applicant that there can be different ambient noise levels at this location at different times resulting from climatic conditions, surf conditions, as well as human and mechanical activities. These factors are likely to provide an explanation for the differing results. It was submitted that the condition can be complied with.

12. Whilst I agree that these factors can result in different ambient noise levels, I accept that the criticisms made of the methodology associated with some of these measurements could point to unreliability. However if these measurements were critical to this case I would have required them to be redone by a Court appointed expert, but I do not accept that this is the case here. Instead I have taken a different approach. Even making the assumption that the actual ambient noise levels are at the lower end of the range of measured results I have not been persuaded that condition D(2)(21) is incapable of being met in terms of the approved development. Clearly, if upon measurement noise levels exceed the 5dBA limit the applicant could take measures to ensure compliance. Such measures could include limiting the number and locations of patrons on the premises.

13. In the circumstances I see no reason why if necessary the condition could not be enforced. The two noise experts have agreed that the present proposal would, in terms of noise impacts on neighbours, be an improvement and as a consequence I accept that condition D(2)(21) would be more likely to be able to be complied with in that particular circumstance.

14. Reference was made to the approach taken in North Sydney Council v Michael Standley & Associates Pty Limited where it was decided, in relation to an application such as this, that a consent authority is required to consider the totality of the development as proposed for modification.

15. Taking into account what I have already concluded regarding condition D(2)(21) and the now proposed modifications I have not been persuaded that the development as proposed for modification would have any adverse impact, particularly in comparison with the approved development.

16. In Standley it is clear that a consent authority in dealing with applications (now under s 96 of the Act) should consider the “creep factor” or cumulative impact which might result from consecutive applications to amend an original consent. In this case it is clear that the effect of this application is, in terms of noise impact, to provide a relative improvement in terms of the acoustic amenity of the residential neighbours to the North.

17. Consequently when viewed as a whole I have decided that to reject this application would represent an unreasonable and unrealistic outcome. The appeal is therefore upheld and the consent as now sought will be granted.

_______________________
T A Bly
Commissioner of the Court
mp