Parramatta City Council v P T Limited

[1999] NSWLEC 66

Land and Environment Court

of New South Wales

CITATION:	Parramatta City Council -v- P T Limited & Anor [1999] NSWLEC 66
PARTIES	APPLICANT: PARRAMATTA CITY COUNCIL
RESPONDENT: P T LIMITED RODAMCO AUSTRALIA MANAGEMENT PTY LTD
NUMBER:	40140 of 1996
CORAM:	Lloyd J
KEY ISSUES:	:- Injunctions and declarations - discretionary considerations
LEGISLATION CITED:	Injunctions and declarations - discretionary considerations
DATES OF HEARING:	03/08/1999; 03/09/1999
DATE OF JUDGMENT DELIVERY:	03/26/1999
LEGAL REPRESENTATIVES:	Applicant: P C Tomasetti Solicitors: Storey & Gough Respondent: R V Gyles QC with S A Duggan Solicitors: Mallesons Stephen Jaques

JUDGMENT:

1. Westfield Shopping Town at Parramatta is a large shopping centre owned by the respondents. Westfield Developments, now known as Westfield Development & Asset Management, is a division of Westfield Limited and has been appointed by the respondents to provide management and development services to the respondents in relation to the shopping centre.

2. The applicant seeks a declaration that the respondents are in breach of the Environmental Planning & Assessment Act 1979 in that they are using the loading docks at the shopping centre otherwise than in accordance with a development consent granted on 25 October 1994. The applicant seeks an order restraining the respondents from using the loading docks until there is compliance with condition 42 of the consent, which limits the hours of operation of those loading docks which are in Campbell Street, Parramatta.

3. The respondents accept that the loading docks are being used outside the hours of operation to which they are restricted by the condition of development consent. They do not, I understand, oppose the making of the declaration. They oppose, however, the consequential order sought, at least until the determination of an appeal under s 97 of the Act which is at present pending in Class 1 of this Court’s jurisdiction and in which Westfield Developments seeks to vary the operating hours of the loading docks in question.

4. The shopping centre is within a City Centre (Retail) zone under the Parramatta Local Environmental Plan 1989 (City Centre) . There are four loading docks facing Campbell Street, serving different parts of the shopping centre and which are known as docks A, B, C and D. The opposite side of Campbell Street is within a residential zone and is occupied by a number of residential flat buildings.

5. The shopping centre has been in existence for some time and has undergone a number of redevelopments. As to the use of the Campbell Street loading docks, the presently lawful hours of operation thereof were imposed by a modification of consent granted by the respondent on 25 October 1994. It is convenient to refer to the following chronology to put the present proceeding in its context.

17 October 1994

Consent granted pursuant to Environmental Planning & Assessment Act , 1979, s 102, subject to conditions. Condition 42 imposed hours for the use of the loading docks as follows:

6.00 am to 6.00 pm Monday to Friday
6.00 am to 1.00 pm Saturday

8 March 1997

Development Application lodged seeking extension to the hours of operation of the existing loading docks as follows:

Dock A
6.30 am to 6.30 pm Monday - Friday
6.30 am to 6.30 pm Saturday
8.00 am to 5.00 pm Sunday

Docks B and D
6.30 am to 10.00 pm Monday to Friday
6.30 am to 10.00 pm Saturday
8.00 am to 5.00 pm Sunday

Dock C
6.30 am to 6.30 pm Monday to Friday
6.30 am to 4.00 pm Saturday
Closed Sunday
15 December 1997
Development Application refused

22 December 1997

Class 1 Appeal lodged under Environmental Planning & Assessment Act , 1979, s 97

6 November 1998

Class 1 Appeal dismissed by Assessor Hussey

11 November 1998

Appeal lodged against Assessor Hussey’s decision under Land & Environment Court Act , s 56A.
22 December 1998

Development Application lodged seeking extension to the hours of operation of the existing loading docks.

Dock A
6.30 am to 6.30 pm Monday to Friday
7.00 am to 6.00 pm Saturday
9.00 am to 5.00 pm Sunday

Docks B and D
6.30 am to 9.30 pm Monday to Friday
7.00 am to 9.30 pm Saturday
9.00 am to 5.00 pm Sunday

Dock C
6.30 am to 6.30 pm Monday to Friday
7.00 am to 4.00 pm Saturday
Closed Sunday

1 February 1999

Class 1 Appeal lodged under Environmental Planning & Assessment Act against council’s deemed refusal of Development Application.

12 February 1999

Section 56A Appeal dismissed by Talbot J

25 February 1999

Summons for Leave to Appeal lodged against Talbot J’s judgment


6. The present proceeding was commenced on 26 June 1996. It was then stood over on a number of occasions to allow the various development applications and appeals described above to be determined. On the commencement of the hearing before me the respondents sought a further adjournment until after the determination of the latest appeal, which was lodged on 22 December 1997. That appeal is set down for hearing on 12-14 May 1999. The applicant opposed any further adjournment in view of what was said to be the adverse effect of the use of the loading docks upon the residents of the residential flat buildings who live on the opposite side of Campbell Street. Accordingly, I refused to grant any further adjournment and proceeded to take the evidence to which I now turn.

The Decision of Assessor Hussey

7. Before turning to the evidence I should refer to the decision of Assessor Hussey (as Commissioners were then called) mentioned in the chronology set out above.

8. Assessor Hussey in his judgment of 6 November 1998 dismissed the appeal and refused to extend the hours of operation for the loading docks A, B, C and D in Campbell Street.

9. The main issue in contention was noise generation. Residents in the area expressed concern about the level of noise generated from the delivery trucks, especially when parked in Campbell Street with engines and sometimes refrigeration units operating.

10. Acoustical experts from each party had undertaken field assessments of the existing background noise levels in order that projections could be made of the increase level of noise. Mr B Murray on behalf of the applicants concluded that the increase in noise level “would be less than 2dBA” and as such “would not be noticeable by the neighbours”. Dr R Tonin on the other hand, recommended that a “criterion of existing and 0dBA would be reasonable to protect the noise amenity of the neighbourhood.”

11. Assessor Hussey accepted the neighbours evidence that there were occasional noise disturbances and appreciated the difficulties they experienced in trying to obtain relief from the noise by closing windows and doors. He stated (at 13):

“It seems to me that serious consideration is required to assess feasibility of achieving some degree of noise reduction, rather than simply adopting existing background noise levels and allowing up to 2dBA increase, as advocated by Mr Murray.”

12. Assessor Hussey further stated (at 13):

“There has been inadequate investigation and consideration to the available measures to mitigate the existing noise levels which clearly exceed acceptable criteria. Therefore, it is not reasonable to adopt the noise creep concept of accepting background noise levels and allowing a further deterioration of up to 2dBA because this is probably indiscernible.”

13. Assessor Hussey concluded (at 14):

“I do not consider this application merits approval because the projected increasing noise levels will have adverse impacts on the amenity of the neighbourhood and there has been insufficient measures addressed to mitigate that harm.”

Evidence of Myree Jill Finlayson

14. Mrs Finlayson has lived in Campbell Street, Parramatta for 30 years. She observes that loading dock D is used on Thursday night, Saturday afternoon and on Sunday. She states that “vehicles using this dock outside the approved hours can clearly be heard from my unit.” Mrs Finlayson goes on to state that “a number of trucks leave their motors running. A number of these trucks are refrigerated trucks and the noise of the refrigeration unit is clearly audible from my unit.” Finally Mrs Finlayson states that she is unable to enjoy her balcony and that she can hear the trucks even with her windows and doors closed.

15. The applicant also relies on a transcript of Mrs Finlayson’s examination in chief and cross examination before Assessor Hussey.

16. Mr R V Gyles QC who appears on behalf of the respondent, highlighted a number of passages from Mrs Finlayson’s evidence in his final submissions. He submits that Campbell Street is generally noisy and that the noise from the loading docks is not a major contributor to the ambient noise level in the street. At page 49 line 50 of the transcript Mrs Finlayson was asked whether she can use her verandah after the docks are closed on a Saturday night and her response was that she is unable to use her verandah “because of other noises.” Mr Gyles QC submits that this indicates that it is the noise from other sources which disturbs Mrs Finlayson and it is not just the loading docks that cause her distress and inconvenience.

17. From page 51 line 45 to page 52 line 45 of the transcript of her evidence Mrs Finlayson was cross examined about the level of noise on Campbell Street. It is clear from this exchange that the street “has a lot of traffic” and Mrs Finlayson agrees that she can not tell whether the noise is coming from dock D or from elsewhere. Furthermore when asked as to whether or not she could tell from what she hears whether or not Dock D was closed, Mrs Finlayson stated that “you see the dock is closed”. Finally, at page 57 line 40 of the transcript Mrs Finlayson agrees that her “street is very noisy, irrespective of D dock on a Sunday.”

Evidence of Mario Mariano

18. Mr Mario Mariano has lived in Campbell Street for 7 years. He also observes that loading dock D has been used on Thursday evenings, on Saturday afternoons and on Sundays.

19. As with Mrs Finlayson, the applicant relies on a transcript of Mr Mariano’s examination in chief and cross examination before Assessor Hussey.

20. As with Mrs Finlayson’s transcript Mr Gyles QC relies on a number of passages in the transcript of Mr Mariano’s evidence. Mr Gyles QC submits that most if not all the noise complained of by Mr Mariano is noise from other sources or from the loading dock at a time when it is legally allowed to be open.

21. At page 80 line 30 of the transcript Mr Mariano agrees that his street “is a very noisy street even when dock D is closed.” He further agrees (at page 80 line 55 to page 81 line 20) that on Saturday and Sunday nights dock D is shut but there is still a lot of noise in the street and it is hard to hear on the telephone on Saturday nights even with the loading dock closed.

22. At page 82 line 50 of the transcript Mr Mariano discusses the problem he has of hearing his son telephone in the morning. At 7 o’clock however, when his son telephones the noise associated with the docks, it is submitted, is acceptable because the docks have authority to open at 6.00 am under the current development consent. When questioned as to whether changing the opening time of the docks to 6.30 am will make any difference, Mr Mariano states (at page 83 line 30) “No, always the same, noise, too much noise, pollution, trucks, fuel, fuel, diesel fuel, especially those semi-trailers of Woolworths going in and out.”

Evidence of John Fuentes

23. Mr Fuentes also lives in Campbell Street. The applicant also relies on the transcript of his examination in chief and cross examination before Assessor Hussey.

24. As was done previously, Mr Gyles QC focused on a number of paragraphs in the transcript. In particular he pointed out that Mr Fuentes had lived in Campbell Street for only four years and that generally on Sundays he preferred to go out and visit family. Mr Fuentes admits (at page 120 line 15 of the transcript) that the reason he chose to live in the unit is because he works 20 metres from his unit and “it’s great to have Westfield across the road, so that is a plus, I know it’s got the problem like noise, but what I’m against here is to increase those hours, so I am prepared to pay the price to be there, yes, there is noise, but I don’t see why we need any more.” Mr Gyles QC submits on behalf of the respondents that to have the convenience of the shopping centre across the road there is inevitably a price to pay. He further submits that extending the hours of the docks to include the weekend will not affect Mr Fuentes significantly because he is usually out most of the weekend.

25. In relation to the extension of hours on Saturday afternoon Mr Fuentes stated (at page 118 line 40) that he was very concerned about the proposal “because it’s going to disturb that’s why. It’s not very quiet but at least as I said, the trucks are not there. The traffic is there but the trucks are not there. A truck at that time, that’s probably the busiest times. A truck creates more problems in relation to traffic. they have to reverse, they have to stop the traffic and that’s when all the cars will start bipping their horns.”

Evidence of John Michael Kouimanous

26. Mr Kouimanous is the owner of units on Campbell Street. He also gave evidence in Court before Assessor Hussey and the transcript of this is relied on by the applicant.

27. Mr Gyles QC in his final submissions clearly pointed out that Mr Kouimanous does not live in the street and his main concern about the proposal is in regard to the rentability of his properties.

28. Mr Kouimanous stated (at page 109 line 55) that he had two main objections to the proposal, “the first ground being that those properties form my parents’ income and with the development of Westfield and particularly if they want to extend the hours that they’re now proposing and have proposed in the past as well, that this will affect the value of our property and also the rentablility of our property.” His second concern is that the development “affects tenants’ lifestyle and therefore it affects our income earning capacity and the value of the property.”

29. Mr Kouimanous admitted that the tenancy rate (that is, the occupancy rate) is quite high but states that “the tenancy turn over has been increasing in the last few years. For example, most of our tenants now would only spend 6 months in a unit and then leave and we have to do all the repairs and cleaning.” He further states (at page 11 line 5) that Campbell Street is “obviously not a residential street any more.....that’s our major concern.” Mr Kouimanous admitted that Parramatta has grown and “obviously every street in Parramatta is now busier than it was, but certainly Campbell Street traffic is quite horrendous at times.”

30. At page 112 and page 113 Mr Kouimanous expressed his concern about the proposal once again: he stated that “the noise will increase after 6 o’clock because there will be more trucks on the road than what there are now. There will be more vehicles whether they be trucks or not, there will be more vehicles on the road.” He went on and stated that the residents are “entitled to one day when there are no trucks and traffic is minimal. This will not be the case under the new extension of hours. They wont even have that one day.”

Evidence of Allan Caladine

31. Mr Caladine is a Town Planner employed by the Applicant Council. He states that he “sees no valid reason why the respondent should not comply with the conditions of Development Consent for the hours of operation of the loading docks.” He goes on to state that “trucks can be heard manoeuvring within dock D from outside the complex” and “some trucks wait outside the shopping complex in the early morning in Campbell Street”. He states that this impacts upon the residential amenity of the street in the early morning.

32. Mr Caladine further states that “the additional hours sought to have the loading docks open would service mainly one trader, namely Woolworths, who has extended trading hours.” He also contends that “spreading the opening hours of the loading docks into the evening and on Sunday would impact upon a larger section of the residential neighbours in Campbell Street because more residents would be at home instead of work.”

Evidence of Renzo Tonin

33. Dr Renzo Tonin, an acoustical engineer retained by the applicant, states that in his opinion:

“Existing noise levels in Campbell Street are extreme. The noise environment is dominated by two principle sources both of which exceed EPA criteria by considerable margins:

(i) Stationary Noise Sources comprising mechanical plant located principally on the roof of the carpark structure, noise emitted by vehicles and people in the carpark and noise emitted by delivery vehicles in the loading dock; and

(ii) Traffic Noise Sources comprising the sound of motor and truck vehicles on Campbell Street.

Evidence of Steven Edwin Cooper

34. Mr Cooper is an acoustical engineer retained by the respondents. He makes a number of observations relating to the docks in Campbell Street. In his affidavit Mr Cooper lists his observations as follows:

“(a) the passage of ordinary passenger motor vehicles along Campbell Street is the dominate noise source influencing the acoustic environment;

(b) the noise associated with vehicles entering and leaving the Campbell Street docks is audible from Campbell Street until such time a the vehicles have fully entered the docks .....;

(c) during the daytime, mechanical plant associated with the shopping centre, not the loading docks, in the form of air conditioning and carpark ventilation exhaust, are also audible.....;

(d) during the nightime, after 10.00 pm, the ambient background level is primarily attributable to mechanical plant on buildings to the east and north of the shopping centre, not the shopping centre itself;

(e) heavy vehicles and ordinary passenger vehicles not associated with Campbell Street docks also routinely use Campbell Street.”

35. Mr Cooper concludes that “based on [his] own observations and acoustical tests....[there will be] a minimal increase in the dB(A) Leq level, with such increases to be less than 2 dB(A) at all times.” He goes on to state that “in acoustic terms, I note that an increase in 3 dB is normally taken as a ‘just noticeable’ increase in noise levels. A 1 dB increase is generally characterised as a ‘not noticeable’ increase. A 2 dB increase, accordingly, is at the borderline between ‘indiscernible and just discernible’. For a noise environment such as Campbell Street, the detection of a 2 dB increase in the Leq is even more difficult than determining a 2 or 3 dB increase in a continuous (background) noise emission environment.”

36. According to Mr Cooper “the potential consequences of not permitting the continued use of the extended dock hours is most likely to be that there will be a progressive increase of truck movements (both large and small) during the approved hours which may lead to congestion for the docks and the need for vehicles to stand outside the shopping centre. This in turn may lead to an increase in noise impacts during the already approved hours.”

37. Finally Mr Cooper states that “preventing access to the Campbell Street docks for the extended hours ...will not improve acoustical amenity for the Campbell Street residents. In my opinion, in such an event... the Campbell Street residents will not discern any improvement to their acoustical amenity. The docks, as noted, are not a primary contributor to noise on Campbell Street and to focus on the docks as a cause of noise impact is misdirected.”

Evidence of Michael Bryan Colston

38. Mr Colston is a traffic engineer retained by the respondents and who has carried out an analysis of the impact of the extended dock hours on the traffic in Campbell Street.

39. Mr Colston states that “based on the inspections, my experience and the calculations which I have carried out....an extension of the hours of operation of the Campbell Street loading docks will not itself cause any increase in traffic generation....I would not expect the changes to alter the number of service vehicles visiting the centre. The times at which vehicles visit the centre will simply be spread over a longer period.” He goes on to say that “the current restrictions are resulting in a concentration of deliveries which is likely to be detrimental to both retailers and the amenity of the surrounding area.”

40. In regard to the closing of the roller shutters on the docks after 6.00 pm on weekdays and 1.00 pm on Saturdays, Mr Colston envisages the following impacts:

“(a) service vehicles arriving after 6.00 pm may attempt to stand in the street and make deliveries across the footpath;

(b) vehicles arriving close to the closing time and unable to complete their unloading by closing time may be trapped within the dock; and

(c) the efficient servicing of the centre would be affected.”

Evidence of Neil Ingham

41. Mr Ingham is a town planner retained by the respondents and who made a number of observations regarding the use of the Campbell Street docks for the extended hours proposed.

42. Mr Ingham states that “it has been my experience in respect of many development applications over many years that an increase in noise levels of anything less than 3 dB(A) is accepted, in planning terms, to create an impact which will be barely perceptible. As a result, I can see no reason, in planning terms, why the Campbell Street docks ought not to be used during the extended hours.”

43. Mr Ingham further states that he “finds the traffic in Campbell Street does create a relatively high noise level, but that is, in my opinion as a planner, to be expected in this particular location.......In locations such as this, residents trade off one form of amenity for another. If a quiet environment is perceived as significant amenity requirement, a person would not choose to live in Campbell Street.”

44. I n his affidavit Mr Ingham lists the overwhelming reasons why, in his opinion, the use of the Campbell Street docks during the extended hours ought not to be prevented.

“(a) If there is a decline in Woolworths supermarket then this will extend to other smaller shops in the immediate vicinity of it;.......

(b) The planning policies of DUAP and Council are directed to encourage the growth and development of the CDB of Parramatta to take its appropriate role in the hierarchy of centres of metropolitan Sydney;......

(c) Changing attitudes towards retailing and shopping and the changing socio-economic structure of our society have brought about changes which need to be reflected in the provision of retail outlets;.....

(d) If the use is restricted then there will be an adverse effect on the centre and the ability to provide a full range of goods to shoppers.”

45. Mr Ingham concludes that “from a planning view point, the requirement that the loading docks not be used for the extended hours would bring about disbenefit to a large number of people resident in the Parramatta LGA.....The suggested benefits to the residents of Campbell Street, by not allowing the loading docks to be used during the extended hours, is difficult to objectively assess, but in my view would be very minor having regard to the agreed noise levels, as opposed to the real and tangible benefit of allowing the extended hours.”

Evidence of Robert Jordan

46. Mr Jordan is the Development & Asset Management Director for New South Wales and Queensland on behalf of Westfield. In his affidavit dated 1 March 1999 Mr Jordan outlines the reasons why there is a need to have the docks in Campbell Street opened for the hours proposed and lists the potential impacts if the docks are closed.

47. The reasons why providing additional access to the docks is necessary are said by Mr Jordan to be as follows:

(i) Both Rebel and Toys-R-Us trade after 6.00 pm on Thursdays and trade on Saturday and Sunday. “Because their products are often bulky, both outlets offer a parcel pick-up service which operates through dock B (for Rebel) and D (for Toys-R-Us).” Mr Jordan states that these docks function to “enable ordinary cars to access and egress the centre for parcel pick-up purposes”.

(ii) Tenants generally carry out maintenance outside retail hours. In particular Westfield organises the routine cleaning of grease traps underneath the car park. Mr Jordan states that “carrying out maintenance within retail hours adversely affects trade, and also inconveniences customers and, in some cases, may place them at risk of injury.”

(iii) In the case of emergency, access to certain tenancies on levels 1 and 4 can only be obtained through the Campbell Street docks. “Similarly, in the event of any security incident in those same tenancies, security vehicles can only gain access through Campbell Street docks.”

(iv) Garbage collection also occurs for certain tenancies from the Campbell Street docks. Mr Jordan states that “it would be inappropriate if this collection did not take place on a Sunday as the presence of garbage may create a health risk.”

48. In his affidavit Mr Jordan lists the problems he anticipates if the roller shutters to the Campbell Street docks are closed from 6.00 pm onwards on the weekdays and on the weekends after 1.00 pm on Saturdays.

(i) “Woolworths will not be able to obtain access for the delivery of fresh food during all of its trading hours.”

(ii) “The parcel pick up facility for Rebel and Toys-R-Us will not be available.”

(iii) “Some emergency vehicles will not be able to gain access to the tenants serviced by the docks during the full range of hours when the centre is trading.”

(iv) “Some types of routine maintenance serviced from Campbell Street docks will not be able to be carried out after the dock hours.”

(v) “Emergency maintenance access for those services accessed from the Campbell Street docks including to the grease traps and the water detention basin, will not be able to be obtained.”

(vi) “Delivery vehicles may queue in Campbell Street and cause greater disturbance than if able to access the docks.”

(vii) Trucks arriving to deliver goods near the closing time may be trapped in the docks.”

49. In his affidavit Mr Jordan further states that “if the consequences arise, as I anticipate, then the shopping centre and its capacity to function as an attractive and lively destination will be undermined.” He further states that “if this anchor (Woolworths) is rendered ineffective due to a restrictive loading docks provision, the trading levels at this end of the centre will suffer which will ultimately result in speciality shops leaving that area and being replaced by poor tenants or vacancies.”

50. Finally Mr Jordan states that “18.7 million people visited the centre in the year ending January 1999.”

51. Mr P C Tomasetti, who appears for the applicant highlighted in his submissions a number of discrepancies in Mr Jordan’s evidence. He suggested alternative arrangements could be made to avoid the problems outlined by Mr Jordan. With respect to the parcel pick up service for Rebel and Toy-R-Us Mr Tomasetti submitted that this service could be limited to times when the docks were open, namely before 6.00 pm on weekdays and before 1.00 pm on Saturdays. Mr Jordan said in cross-examination, however, that this was not good customer service.

52. In his submissions on Mr Jordan’s evidence, Mr Tomasetti challenges the need for maintenance contractors to use the docks area: there is nothing to suggest that they cannot use the public carpark. He submits that any maintenance work in the centre could be carried out before 8.00 am thereby avoiding customers and the need to extend the dock hours. Turning to the need to access grease traps and water retention basins Mr Jordan agreed in cross examination that the traps and basins were only cleaned out every 2 months and some of the grease traps could be cleaned while shops were open.

53. Mr Tomasetti stressed that there was no suggestion by the applicant that if emergency vehicles, such as fire engines, were needed in the centre that it would some how oppose this. He stressed that if an emergency occurred the docks could be opened for that use.

54. Mr Tomasetti also highlighted the fact that there were ‘no standing’ restrictions on Campbell Street and therefore it would in violation of traffic laws for the trucks to be queuing or parked in the street.

55. Lastly Mr Tomasetti submitted that Westfield could inform tenants about the dock hours thereby preventing any vehicles getting trapped in the docks.

Evidence of Robert Gary Reid

56. Mr Reid is the General Manager of Property on behalf of Woolworths Limited. Mr Reid referred to the size of the Woolworths supermarket in the shopping centre and highlighted the need to have the dock hours extended.

57. In his affidavit Mr Reid states that “approximately 9 000 customers shop at the supermarket on Sundays and Mondays spending some $190 000, which equates to 25% of the overall weekly customers and sales from this store.” He goes on to state that “customers who wish to shop outside the traditional hours now form a significant proportion of supermarket users....these customers, moreover, expect (not unreasonably) that when they shop, the supermarket will offer the same range of fresh food to them, as offered to those who have the opportunity of shopping in more traditional hours. A supermarket which does not effectively cater to these people, by offering them less fresh or a more restricted range, will quickly (and deservedly) lose those people as customers altogether.”

58. Mr Reid describes the delivery hours to its docks in ordinary circumstances: “Monday - Saturday 5.00 to 12 midnight; and Sunday 7.00 am to 10.00 pm” He further states that “the requirements of customers for supermarkets to provide the full fresh food range, as noted, has altered the product range and increased the requirement for flexible delivery hours.” He further states: “The only access for loading and unloading of deliveries to the Woolworths supermarket is provided through dock D.” Mr Reid states that “it would not be possible for the supermarket to continue trading with an appropriate range of produce if access to loading dock D is prevented on Sundays.” Mr Reid claims that “the supermarket receives more deliveries on Fridays in an attempt to compensate the weekend deficiencies. If the delivery hours were not so restricted, the delivery demand would spread more evenly across the range of hours available.”

59. The impact of closing dock D permanently at all times outside the hours of 6.00 am and 6.00 pm Monday to Friday and 7.00 am and 1.00 pm Saturday are set out in Mr Reid’s affidavit. The consequences that would occur are:

“(a) Woolworths would be unable to replenish lines on Sunday, with the consequence of empty shelves on Sunday afternoons and Monday mornings;

(b) there would be an overall decline in the quality and freshness of the produce available to the customers of this supermarket;

(c) customers’ expectations in respect of the availability of the full range of fresh food would not be satisfied;

(d) reduction of sales by an estimated $60 000 and customers by 3 000 for both Saturdays and Sundays inclusive;

(e) the loss of employment if evening packing is no longer possible....

(h) requiring Woolworths to provide double the amount of deliveries on Friday and Saturday during the available hours, thereby creating occupational and safety issues due to excessive stock in storerooms which restricts movement and stocking fresh food outside refrigerated coolrooms......

(j) disadvantage Woolworths, when compared to other supermarkets both in the shopping centre and outside the CBD.”

60. Lastly Mr Reid stresses that “if the roller shutter to dock D is closed at all times outside the hours specified in [the development consent] for even a few months, then the consequences will be precisely the same.”

Conclusions

61. Most of the issues raised in the evidence in this case were the same issues raised in the hearing before Assessor Hussey. In those proceedings the Assessor dismissed the appeal because he found that the projected increase in noise levels will have adverse impacts on the amenity of the neighbourhood and there had been insufficient measures taken to address the mitigation of that harm. In Turier v Nipote Pty Ltd (1983) 48 LGRA 20 McClelland J said (at 34):

“In my view it is in the public interest that a consent authority should uphold a decision of this Court which is expressed in the Land & Environment Court Act to be final for the purposes of that Act or any other Act or instrument.”

It would thus be inappropriate for me to now depart from the Assessor’s finding.

62. It follows that, in ordinary circumstances, the hours of use of the loading docks imposed by the present condition limiting such hours should be observed and, if necessary, enforced.

63. In the present case, however, there is a pending appeal in Class 1 of the Court’s jurisdiction against the refusal of a further development application to vary the hours of operation of the loading docks. That development application is not a mere repetition of the development application which was heard and dismissed by Assessor Hussey.

64. In his judgment the Assessor also said:

“It seems to me that serious consideration is required to assess feasibility of achieving some degree of noise reduction, rather than simply adopting existing background noise levels and allowing up to 2 dBA increase, as advocated by Mr Murray. If such noise reductions are found to be not feasible, then I think there is a reasonable case to adopt the position of Dr Tonin that the appropriate limit to reasonably preserve residential amenity is an increase of ‘existing and 0dBA’. Apparently this can be achieved if the contributing LAeq (1 hr) noise level from the new activity is at least 10 dBA below the existing Laeq (1 hr) ambient in any hour of operation.”

65 . In the pending appeal in Class 1 of the Court’s jurisdiction, the respondents have apparently seized upon the Assessor’s comments which I have set out (in paragraph 64) above. The development application, in addition to proposing the change to the hours of operation of the loading docks, also proposes the undertaking of noise attenuation measures so as to significantly reduce noise emission from existing standing mechanical plant at the shopping centre. According to Mr Cooper, these noise control measures can be implemented so as to achieve the environmental goal, nominated by Assessor Hussey, of no increase in noise emission by both the standing mechanical plan and the extended hours of operation of the loading docks. That is to say, the cumulative noise impact will be nil.

66. The applicant’s noise expert, Dr Tonin, recognises that the noise environment in Campbell Street is dominated by two principal sources: (1) the mechanical plant and other noises generated by the shopping centre and (2) general traffic noise in Campbell Street. The respondent’s new proposal is to attenuate the emission of noise from the former, the latter being beyond their control, thus eliminating any noise “creep” as a consequence of the use of the loading docks as now proposed.

67. As I have indicated (in paragraphs 61 and 62) above, the equal and orderly enforcement of planning controls would require that the relief sought by the applicant be granted. The Court, however, enjoys a wide discretion under s 124 of the Environmental Planning & Assessment Act . The circumstances of this case call for an exercise of discretion in favour of the course urged upon me by Mr Gyles QC and outlined in paragraph 3 above. The evidence shows that the primary contributor to noise in Campbell Street and which is affecting the amenity of the residents, is not the use of the loading docks. The making of the orders as sought by the applicant will result in the severe and wide ranging effect on the operation of the shopping centre described in the evidence of Mr Jordan and of Mr Reid. The orders sought should be made but should also be postponed until after the determination of the pending appeal in Class 1 of the Court’s jurisdiction. If that appeal is successful and if the respondents can then demonstrate that the noise attenuation measures which they propose can be implemented relatively quickly, it will then be open to them to apply for a further postponement of the orders pursuant to the Land & Environment Court Rules , Pt 1 r 8 whilst such work is being carried out.

Orders

67. I make the following declaration and orders.

1. A Declaration that the respondents are in breach of the Environmental Planning & Assessment Act , 1979 in that they are using the loading docks at 171 Church Street, Parramatta otherwise than in accordance with the modification of development consent which was granted on 25 October, 1994 in contravention of the provisions of the Parramatta Local Environmental Plan 1989 (City Centre ).

2. An order that the Respondents by themselves, their servants and agents be restrained from using, causing to be used or permitting to be used the loading docks at 171 Church Street, Parramatta until compliance with condition (42) of the modification of development consent dated 25 October, 1994 which states:-

“(42) The use of the loading docks in Campbell Street are to be restricted to use between the hours of 6.00 am - 6.00 pm Monday to Friday - and 7.00 am to 1.00 pm Saturday.”


3. Order No 2 above is postponed until 30 May 1999.

4. I reserve the question of costs.

I certify that this and the preceding 28 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 26/03/99