Nestra Engineering Pty Ltd v Council of the Municipality of Leichhardt
[1988] NSWLEC 31
•11/28/1988
Land and Environment Court
of New South Wales
CITATION: Nestra Engineering Pty Ltd v Council of the Municipality of Leichhardt [1988] NSWLEC 31 PARTIES: APPLICANT
Nestra Engineering Pty LtdRESPONDENT
Council of the Municipality of LeichhardtFILE NUMBER(S): 10528 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: Nestra Engineering Pty. Limited v. Leichhardt Municipal Council, 59 LGRA 100;
Fatsel Pty. Limited v. ACR Trading Pty. Limited (No.3), 64 LGRA 177DATES OF HEARING: 08/11/88, 13/11/88 DATE OF JUDGMENT:
11/28/1988LEGAL REPRESENTATIVES:
JUDGMENT:
His Honour: On 2 September 1988, Nestra Engineering Pty. Limited made application to the Leichhardt Municipal Council for development consent to use a building at 107 Francis Street, Leichhardt for "boat repair and storage within existing factory building". The application was advertised and a number of objections were received. The Council failed to deal with the application within 40 days and on 13 November 1988 Nestra appealed to the Court. On 8 November 1988, the Council refused to grant its consent for the following reasons:
"1. The activity would have an adverse impact on the residential amenity of the area by virtue of the emission of fumes, dust and noise.
2. The application makes inadequate provision for off-street parking.
3. The application is not permissible under clause 15 of LEP 20.
4. The occupant has demonstrated an inability to comply with the requirements of the consent authorities".
107 Francis Street, Leichhardt is a large, industrial site surrounded by residential properties. It is zoned Residential 2(b2) under Leichhardt Local Environmental Plan No. 20 gazetted on 15 June 1984. The present application is concerned with the northern part of the large single storey iron clad industrial building on the site. The building has an overall floor area of approximately 840m2. The part of the building the subject of the application has an area of approximately 470m2.
The proposed development is prohibited under the 2(b2) zoning unless permissible pursuant to cl.15 of LEP 20. Clause 15 relevantly provides:
"Where a building on land within zone ... 2(b2) ... has been constructed for a use other than residential land, in the opinion of the Council -
(a) it is not suitable on physical or economic grounds for conversion to, or replacement by, a residential use; and
(b) the amenity of the locality will not be adversely affected,
the Council may consent to the use of the building or part of the building for any purpose included in Column III or Column IV of the Table to Clause 22 of the Leichhardt Planning Scheme shown opposite zone 3(a1) in Column 1 of that Table".
The purposes included in Column III and Column IV opposite zone 3(a1) exclude purposes referred to in Column V. Column V excludes "industries referred to in Schedule 3". Schedule 3 excludes "offensive and hazardous industries". The phrase "offensive and hazardous industries" is not defined in the LEP. However, "offensive or hazardous industries" is defined to mean:
"An industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings".
Last year Nestra made an application to the Court claiming existing use rights. In Nestra Engineering Pty. Limited v. Leichhardt Municipal Council, 59 LGRA 100, Stein J held that there were no existing use rights for warehousing in any part of the subject building. He declared that there were existing use rights for "small scale steel fabricating use" in the southern section of the building but declined to declare there were any existing use rights at all with respect to the northern section.
Although the application before the Council was for "boat repair and storage", it is clear enough that what is proposed is the manufacture of fibreglass boats. That is what Nestra has stated in Court is the use to which it proposes to put the northern section of the building and that is the use to which the northern part of the building was put prior to the making of a restraining order by the Court in its Class 4 jurisdiction on 19 September 1988. The manufacture of fibreglass boats involves the pouring of fibreglass into moulds together with sanding, painting, fitting out etc..
The activity began in about June of this year. Almost immediately nearby householders complained about the emission of the fumes from the building. On 29 July 1988, I declined to grant an interlocutory injunction sought by the Council pending the hearing of the development application upon an undertaking being given that all resin spraying equipment would be removed from the premises. That undertaking was not honoured and on 19 September 1988 an interlocutory order was made restraining Nestra from using the northern part of the building for the purpose of the application of paint or resin products without the Council's approval or until further order.
The present application was advertised in accordance with Council's policy and a number of submissions were received from nearby residents. All objected on the ground that they would be subjected to unpleasant and offensive odours. Four local residents gave evidence in the appeal. Nestra does not dispute that the application of fibreglass reinforced polyester resin produces offensive odours. Nor does it dispute, as I understand the evidence, that such odours may constitute a health hazard if inhaled in sufficiently high concentrations. The cause of the offensive and unpleasant odour is styrene. Exposure to styrene may cause eye and nasal irritation and excessive exposure may result in the depression of the central nervous system. Regulatory authorities have placed threshold limits with respect to the use of styrene because of its unpleasant and dangerous properties. In the appeal, the Council called evidence from the State Pollution Control Commission concerning the problems associated with the application of
fibreglass reinforced polyester resins. Mr. McGregor from the Commission emphasised the need for great care to be taken when fibreglass products are being manufactured close to residential buildings. In the view of the Commission, most buildings are of insufficient size and are not properly designed for the safe disbursement of styrene odours. Mr. McGregor outlined means by which these odours can be contained. They can be controlled by dispersion or by the use of replaceable carbon beds or a combination of both. It would appear that although chemical oxidation units have been tested in other States, it is not a method which has been accepted by the State Pollution Control Commission.
It is not disputed by Nestra that the activity for which it seeks consent will, unless contained by one or other of the methods identified by Mr. McGregor, be offensive to people in the immediate neighbourhood. Mr. McGregor was cross examined by Mr. Rigg on behalf of Nestra in an endeavour to persuade the Court that if appropriate conditions were imposed as, for example, that no noxious fumes emanate from the premises, development consent should be granted. However, Mr. McGregor has not visited the site and is not familiar with the building other than having seen it as he drove past. I accept that provided enough money is outlaid, it is possible that the proposed activity could be undertaken by Nestra without fumes being released into the immediate surrounding area. But Nestra has done no more than demonstrate a possibility. Mr. McGregor can go no further because, as I have said, he has not seen the building, he has no clear idea of how the activity is to be undertaken and does not know what method of odour r
eduction or elimination is proposed. He has said that problems with respect to fibreglass manufacture are "enormous". For example, in order to prevent fumes escaping through open doors, it is necessary to maintain negative pressure within the building. Even if internal negative pressure could be achieved (and I am not satisfied it could), it would require a great amount of internal work to be undertaken and would be very expensive.
After the present application was advertised, the Council received a number of submissions from nearby residents. All objected to the offensive odours. Some have complained that, on occasions, they are driven indoors by the fumes but even then they cannot escape them. Four residents gave evidence. The next door neighbours, Mr. & Mrs. Bennett, were not able to escape the fumes notwithstanding that they tried to seal their house by closing windows and doors and blocking vents. Mr. Jones gave evidence that his wife, who is asthmatic and too ill to attend Court, has not only been forced indoors by the fumes but has required medication for the exacerbation of her asthmatic condition by the inhalation of the fumes. Other residents have made similar complaints.
I am satisfied that if the activity goes ahead people in the immediate area will suffer acute discomfort and will be exposed to a real possibility that the fumes will impair their general health unless appropriate preventative measures are taken by Nestra. Nestra has not submitted any plan or method of odour reduction or elimination. The evidence given to the Court by Mr. McGregor persuades me that it would be extremely difficult for Nestra to modify the building to protect people living in the immediate vicinity. In these circumstances, and on the assumption that all preconditions in cl.15 are met, I am of the opinion that development consent should not be granted. I reject Mr. Rigg's submission that consent should be granted subject to a condition that Nestra undertake the activities in a manner that will not adversely affect the amenity of the neighbourhood. As I have said above, I am not satisfied that Nestra can or will undertake the activity in a manner that will not seriously interfere with the amenity
of the neighbourhood. Ordinarily, an applicant wishing to obtain development consent for a proposed activity is under an obligation to satisfy the Court that the activity can be carried out in such a manner that the amenity of the neighbourhood will not be adversely affected or that there is some reason why the activity should be undertaken notwithstanding its impact on the locality. The burden of the obligation on a developer in this regard is proportional to the adverse impact of the development. That general proposition has more than usual force in the present case because the adverse consequences to the locality caused by the manufacture of fibreglass boats by Nestra
has been significant and deleterious to the health and comfort of nearby residents.
Having disposed of the appeal on general planning grounds, it is unnecessary for me to deal with Mr. Rigg's submissions concerning cl.15. I am of the opinion, however, that cl.15 would not, in the present case, permit the Court to grant development consent. I am prepared to assume in favour of Nestra that it has been established that, at the present time, on economic grounds, it is unreasonable to require that the building be demolished and replaced by a building for residential purposes and that the building is not suitable on physical grounds for conversion to a residential use. However, I am not satisfied that the use to which the northern part of the building is intended to be put will not adversely affect the amenity of the locality. As I have said above, until restrained by an order of the Court, the use of the building for the proposed activity seriously affected the amenity of the neighbourhood. The activity caused residents great discomfort and injured their health. I am not unmindful of Mr. Rigg's a
rgument that if a condition were attached to the consent to the effect that the manufacture of fibreglass boats be conducted so as not to adversely affect the amenity of the neighbourhood then, by definition, the development proposed would not adversely affect the amenity of the neighbourhood if that condition were observed. But I am not satisfied that the imposition of such a condition would protect the amenity of the neighbourhood. I am not satisfied that Nestra would be able to stop fumes escaping from the building. But even if it be assumed that eventually Nestra could devise some means to prevent the escape of toxic odours, it would seem that more probably than not the surrounding neighbourhood would be subjected to intolerable affectation while it refined its method of odour elimination. As I have said above, Mr. McGregor has made it clear that if the proposed activity is to be undertaken from the subject building in a manner that would not adversely affect the amenity of the neighbourhood, an enormous
amount of work would have to be undertaken and I am not satisfied that Nestra can or will undertake the necessary work. It follows that I am not satisfied that the amenity of the locality will not be adversely affected by the use of the northern part of the building for the development proposed.
Furthermore I am of the opinion that, in any event, what is proposed is not relevantly a purpose included in Column III or Column IV of the Table to cl.22 of the Leichhardt Planning Scheme. In my opinion, the manufacture of fibreglass boats is relevantly an "offensive and hazardous industry" of the type referred to in Schedule 3. It would seem to me that a reference to "offensive and hazardous industries" where appearing in Schedule 3 is a reference to "offensive or hazardous industries" as defined in the Leichhardt Planning Scheme. The method of manufacture or the nature of materials used in the proposed activity requires isolation from other buildings and hence falls within the definition of an "offensive or hazardous industry". It is not to the point that a condition could be imposed which might, or even could, make it non-offensive and non-hazardous (see Fatsel Pty. Limited v. ACR Trading Pty. Limited (No.3), 64 LGRA 177). But even if the word "and" means "and" and not "or", I am of the opinion that witho
ut recourse to the definition of "offensive or hazardous industry", what is proposed is, in ordinary terminology, "an offensive and hazardous industry". The evidence demonstrates that the activity of manufacturing fibreglass boats is offensive to people in the near vicinity because of the escape of toxic fumes. The evidence satisfies me that, more probably than not, the inhalation of toxic fumes is hazardous to health. Accordingly, I am of the opinion that what is proposed is prohibited and the Court has no power to grant the consent asked for.
For the abovementioned reasons, I am of the opinion that the appeal must be dismissed. The order of the Court is appeal dismissed.
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