R.E.D. Industries v Blue Mountains City Council - [2008] NSWLEC 1519

Land and Environment Court

of New South Wales

CITATION: R.E.D. Industries v Blue Mountains City Council [2008] NSWLEC 1519

PARTIES:
APPLICANT
R.E.D. Industries Pty Limited
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 10522 of 2008

CORAM: Brown C

KEY ISSUES: Appeal :- appeal against conditions imposed on the approval for the use of an existing building for tourist accommodation - noise - numbers of patrons - car parking

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blue Mountains Local Environmental Plan 2005

DATES OF HEARING: 9/12/08

EX TEMPORE JUDGMENT DATE: 9 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr A White, solicitor
SOLICITORS
Benetatos White
RESPONDENT
Ms P Hudson, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

9 December 2008

10522 of 2008 R.E.D. Industries Pty Limited v Blue Mountains City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against conditions imposed by Blue Mountains City Council (the council) on the approval of Development Application X/798/2007 on 30 April 2008 for the use of an existing building as tourist accommodation at 179-181 Wentworth Street, Blackheath (the site).

2 The hearing was conducted as an On Site Hearing and the judgement reflects the contents of the Statement of Facts and Contentions from the applicant and the council and the findings given on-site. The parties were directed to provide conditions that reflected the findings and these were finalised on 22 January 2009.

Background

3 Development Application X/798/2007 provides for the use of an existing heritage building for tourist accommodation with the following features:

a permanent guesthouse with 8 guest bedrooms and the owner’s permanent residence together where the use of the premises for weddings/functions or public access to a restaurant on the three weekends per month.
the maximum number of people at any time on the site is not to exceed 40 guests.
the approved hours of operation for the weddings/functions and the restaurant are Friday to Saturday 11 a.m. to 10 p.m. and Sunday 11 a.m. to 4 p.m.
a total of 13 on-site car parking spaces are provided with an additional 11 car parking spaces located on the road reserve.

The site and surrounding area

4 The site comprises Lot 1 and Lot 2 in DP 7196 and Lot 5 in DP 655768 and has an area role of 4437 sq m. Existing development on the site consists of a large dwelling, tennis court, covered pergola and ancillary structures. The site currently operates as a guesthouse.

5 The locality is residential and characterised by a relatively large allotments with a single residential dwellings generally sited within well-established garden settings.

Relevant planning controls

6 The site is located within the Living General Zone under Blue Mountains Local Environmental Plan 2005 (LEP 2005). The site is identified as a heritage item in Sch 6, Pt 1 of LEP 2005. The heritage listing identifies the site as ““Yabba Yabba” and garden”.

7 The proposed use is prohibited within this zone although the proposed development is permissible through cl 77(2)(e) of LEP 2005. The clause provides that "a consent authority may as a heritage conservation incentive grant consent to the use for any purpose of a building that is a heritage item" provided that the use does "not unreasonably affect the amenity of the surrounding area".

The conditions in dispute

8 The applicant identified the following conditions as being in dispute in their Statement of Facts and Contentions;

Conditions 3 and 13- these conditions relate to the construction of acoustic fence on the southern boundary.
Condition 11 - this condition allows a maximum of 40 guests at any time, operating hours to 10 p.m. on Fridays and Saturdays and 4 p.m. on Sundays and the use of outdoor areas to 8.30 p.m.
Condition 14 - this condition relates to amendments for the kitchen fit out.
Condition 19 - this condition relates to the requirement for a s 73 Compliance Certificate from the Sydney Water.
Conditions 25 and 26 - these conditions relate to the construction of approved parking bays on the Wentworth Street road reserve.
Condition 29- this condition relates to the payment of a performance maintenance bond for the works required by conditions 25 and 26.

9 Following further discussion between the parties, that included some amendment to the conditions, the form of conditions 14, 19 and 29 were agreed between the parties.

The applicant’ s amendments

10 The applicant seeks to amend the conditions still in dispute to provide for:

Conditions 3 and 13 – delete the requirement for an acoustic fence based on the existing use of the premises and the adequacy of the existing fence,
Condition 11 – allow a maximum of 60 guests at any time, allow longer operating hours to 11 p.m. on Fridays and Saturdays and extend the use of outdoor areas to 9.30 p.m.
Conditions 25, 26 and 29 - delete the requirements for the construction of car parking on the council's road reserve and consequent performance maintenance bond.

Local resident evidence

11 A number of local residents who adjoin of the site and within the general area provided evidence at the On-Site Hearing. The properties adjoining the site were also inspected on the site view and the relationship with the dwelling and other areas on the site were observed. The concerns expressed by the local residents relate to:

the unsuitability of the site for a commercial use,
the impact on the adjoining premises by way of noise and overlooking,
additional traffic generated by the proposed uses, and
the unacceptable impact created by a similar previous use of the site.

Conditions 3 and 13 - the acoustic fence

12 The council provided acoustic evidence from Mr Neil Gross and the applicant provided acoustic evidence from Mr Michael Gange. Conditions 3 and 13 require the construction of a 3 m high acoustic fence on the southern boundary to protect the adjoining property at 175 Wentworth Street from noise from the use of the southern deck by patrons, music from within the building and overlooking. The construction of the acoustic fence was not supported by the owners of the adjoining property due to its height and bulk when viewed from their property. Mr Gross doubts whether the southern deck area is usable because of the potential noise impacts on the adjoining property however he suggests limiting the number of people on the southern deck at certain times. The later in the evening, the less people should use the deck with no access after 10 p.m. For simplicity, he concludes that the doors from the building leading to the deck and should be locked after 8 p.m. windows facing the southern deck should also be locked this time.

13 Mr Gange states that noise from internal areas of the building are acceptable when doors remain closed. If the southern deck is to be used after 8:30 p.m. then a solid acoustic boundary fence should be constructed to a height 3 m high above the deck level.

14 Following an inspection of the southern deck, it was suggested that a combination of a 8.30 p.m. time limit on the use of the southern deck and the construction of an acoustic barrier on the edge of the deck (rather than on the boundary) may strike a practical and reasonable balance in terms of the use of the southern deck and the impact on the adjoining property. On this basis, Mr Gross and Mr Gange helpfully provided details of appropriate fencing heights and construction materials to minimise any impact on the adjoining property, including restricting the use of a raised area that was used prior to the current applicant’s use of the property and providing acoustic gates at the eastern end of the deck so the southern deck area is largely enclosed with acoustic fencing and located off the boundary. The gates were ultimately replaced by an acoustic fence near the common boundary that would achieve an acceptable level of noise attenuation as the gates for properties further to the east (see conditions 3(a),11(d), 12(e) and (f), 13.1 ans13.2). The proposed fencing will also address any issue of overlooking.

Condition 11

Maximum number of guests

15 Mr Byron Tully, a town planner, provided evidence for the council. He opposed the increase in the number of guests to 60 as it would unreasonably affect the amenity of the surrounding area by way of the increased frequency and intensity of noise.

16 I generally agree with Mr Tully however I am satisfied that some increase in the number of guests on a more infrequent basis would be appropriate and would not unreasonably affect the adjoining properties. The applicant was requested to reconsider the maximum number of guests and particularly the frequency of events that would require guest numbers above the approved 40 persons.

17 In response, the applicant offered to limit the number of events with 60 guests (including guests staying in the guest rooms) to 5 events per year. These events would form part of the overall number of approved events at no more than three weekends of every calendar month and the other restrictions imposed by the approval (see conditions 11(a), (b), (e) 1 and 2). For events of 60 persons, written notification is to be provided to adjoining and nearby residents (see condition 11(g)).

18 I accept that the limited number of events for 60 persons is acceptable and given the additional conditions imposed for noise attenuation, notification and the general operation of the facility, there will be no unreasonable impact on the amenity of the surrounding area.

Conditions 25, 26 and 29

Car parking on the road reserve

19 Mr Paul Koen, an engineer, provided evidence for the council. In accepting that the construction of a formal car parking area on the road reserve is inappropriate because of the potential impact on the heritage values of the site, he suggests that the car parking area should be constructed with compacted road base (and subject to the maintenance of the existing established trees to be supported by an arborist’s report) to minimise the long-term impacts of the car parking on the verge. He rejects the applicants approach of leaving the road verge in its current natural condition as use of this area by vehicles would lead to the deterioration of the grassed surface and erosion of the underlying material and may lead to trip hazards for pedestrians using this verge area.

20 I agree with the conclusions of Mr Koen. The use of the road verge is a significant benefit to the applicant and I agree that the impact on this area should be minimised and any persons using this area should be protected from trip hazards. The protection of the existing pine trees adjoining this area is also important and, in my view, is adequately addressed through the provision of an arborist’s report (see condition 25(a)v). The issue of whether vehicles using the verge area should reverse into the spaces or park in a forward direction is not critical from a safety viewpoint given the residential location and the likely traffic generation based on the limitations on the maximum number of patrons and frequency of operation however any spaces should be marked in accordance with Australian Standard 2890 (see condition 25(a)i).

21 Overall, the proposed modifications satisfy cl 77(2)(e) of LEP 2005 in that they will not result in a development that will "not unreasonably affect the amenity of the surrounding area". In coming to this conclusion I have considered the issues raised by the local residents.

Orders

22 The Orders of the Court are:

____________

G T Brown

Commissioner of the Court

ANNEXURE A

Use of premises at 179-181 Wentworth Street, Blackheath for Tourist Accommodation

CONDITIONS OF CONSENT

Confirmation of relevant plans

1. To confirm and clarify the terms of consent, the development shall be carried out in accordance with the plans prepared by AbCad Design and Drafting numbered 070802 Version 2, Sheets 3 of 3 dated 2/08/07 and comply with the recommendations of the Conservation Management Plan prepared by Integrated Design Associates and dated November 2007, and accompanying supportive documentation, except as otherwise provided or modified by the conditions of this consent.

Period of development consent

2. Physical commencement of construction is required within a two year period from the date of this consent. Should this not occur, the development consent will lapse.

Period for compliance with this consent

3. a) Construction of the acoustic fence in accordance with Condition 13 and the construction of all car parking areas internal and external to the site are required to be completed prior to the operation of the premises for the purposes of functions or events, or for the public use of the dining room.

b) All other works required by this consent must be completed prior to the use of the site as a guesthouse.

Building Code of Australia

4. All new building work is to comply with the requirements of the Building Code of Australia.

Construction certificate (building)

5. A construction certificate is required prior to the commencement of any site or building works. This certificate can be issued either by Council as the consent authority or by an accredited certifier.

6. To ensure appropriate access and facilities are provided, a statement is required from a suitably qualified Access and Mobility Specialist, certifying that the development complies with the following:

The accessible quarters as shown on the approved plans in terms of Australian Standard 1428

This statement is to form part of the Construction Certificate documentation.

Consolidation of lots

7. Lots 1 and 2 of DP 7196 and Lot 5 of DP 655768 are to be consolidated into one (1) allotment. Proof of consolidation of all lots is to be provided to Council prior to the issue of the Construction Certificate.

Log Book

8. A log book detailing all bookings for the guesthouse, dining room and for all events and functions must be kept up to date and on site at all times, and must be made available for inspection upon request by a Council officer.

Operation of guesthouse

9. To ensure the operation of the guesthouse has limited impact on surrounding residential properties:

+ The premises have to be operated by permanent residents on the site.

+ The guest accommodation shall be available for short term paid accommodation only.

+ No cooking facilities are to be provided to the rooms.

Carparking - guesthouse

10. In accordance with Council’s Better Living Development Control Plan off-street parking is to be made available for the residents’ vehicle and one space per guest room. Guest vehicles must leave the site in a forward direction.

11. a) Any use of the premises for functions or events or for any public use of the dining room is not permitted to occur any more frequently than three (3) weekends of every calendar month with each such wedding/function or public use of the dining room to occur between 11.00am Friday and 4.00pm Sunday. In that regard, no more than one function is permitted to occur between 11.00am Friday and 4.00pm Sunday, and the premises are to be used for the purposes of functions/events or public use of the dining room a maximum of 36 times per year.

b) With consideration to a) above, the hours of operation for the use of the premises for functions or events or for any public use of the dining room is limited to the following times:

Saturday: 11am – 10pm

Sunday: 11am – 4pm

c) All employed staff must have departed from the premises by no later than 1 hour after the conclusion of any function/event/public use of the premises.

d) Congregation of guests in any outdoor areas within the site, with the exception of the northern deck and terrace for smoking purposes, is to cease by 8.30pm.

e) The maximum number of guests permitted on site for the purposes of functions or events or for any public use of the dining room at any time is to be limited as follows:

1. No more than forty (40) guests (inclusive of guests staying in guest rooms), with the exception of the allowance referred to in part 2;

2. Sixty (60) guests (inclusive of guests staying in guest rooms), are permitted to attend functions on a maximum of 5 occasions per year.

f) The tennis court on the site is not to be used for the purposes of functions.

g) Written notification of any functions or events that are to cater for 60 guests is to be provided to adjoining residents to the site and residents directly opposite the site in Wentworth Street. This notification is to be provided at least 1 day prior to the function or event.

h) A parking attendant is to supervise guests arriving at and departing from functions to ensure that this is conducted in an orderly manner (so as not to unreasonably disturb the amenity of surrounding residents as a result of noise) and the parking occurs in the designated car spaces in Wentworth Street.

12 To ensure the noise from Yabba Yabba Guesthouse does not result in objectionable noise to any affected residence, the following measures apply:

e) All external doors of the premises are to remain closed after 8.30pm during the use of the premises for functions/events/public use (to limit noise emanating from within the premises), with the exception of the doors providing access to the northern deck and terrace which can be opened intermittently for access to the northern deck for smoking purposes.

f) The doors providing access to the northern and southern decks must be fixed with door seals and the doors to the northern deck must be fixed with automatic door closers to limit noise emanating from the site.

13 Acoustic fence

In order to minimise noise impacts on adjoining neighbours an acoustic fence is to be constructed on the southern edge of the deck to the south of the premises (“the southern deck”) and adjacent to the southern boundary of the premises, to the following specifications:

1. On the southern edge of the southern deck (fence running from west to east)

a. 3 metres in height above the level of the deck commencing at the brick wall located 2.5 metres to the west of the deck and running to the junction of the deck and the western edge of the podium located on the southern edge of the deck (“the podium”).

b. 2.3 metres in height above the level of the podium and around the perimeter of the podium (on the western, southern and eastern edges of the podium).

c. 2.2 metres in height above the level of the deck from the junction of the deck and the eastern edge of the podium to the south eastern corner of the deck

a. The acoustic fence is to be constructed immediately adjacent to the existing southern boundary fence at a height of 2.6 metres above natural ground level, commencing in line with the eastern point of conclusion of the fence constructed on the edge of the southern deck and running for a length of 10m in an easterly direction from this point or near the common boundary to the location of the existing tree some 8 m from the edge of the southern deck

The acoustic fence design must incorporate materials, colours and designs that are sympathetic to the heritage building and the heritage significance of the site and must be approved by Council prior to the issue of a Construction Certificate.
The fence is to be constructed at the expense of the owner of Yabba Yabba.

Kitchen fit out

14 a) The fit out of the food premises shall comply with the requirements of Australian Standard 4674.2004 Design, Construction and Fit-Out of Food Premises and the Food Safety Standard 3.2.3 to the extent indicated in this condition.

1) Restrict the use of top burners of the commercial oven to ensure that the existing exhaust system operates satisfactorily in accordance with AS-1668, or alternatively install an extended exhaust system such that use of the full oven complies with AS-1668.

2) New flooring is required in both the food preparation area, and the area adjacent - up to the large kitchen entrance door. (as discussed) Flooring must have suitable coving.

3) Suitable wall finishes in the food preparation area only shall be either ceramic tiles, stainless steel, welded vinyl sheeting and adhered directly to the wall. (See AS 4674)

4) All shelving in the food preparation area only must be made of stainless steel, or laminated shelving (wall shelving must be 25mm clearance from the wall or alternatively sealed to wall.

5) Proofing shall be provided at the external door against pests, eg air / plastic strip curtain.

All work/s within the kitchen must comply with the requirements of Australian Standard 4674.2004, Design, Construction and Fit-out of Food Premises and the Food Safety Standard 3.2.3.

Food safety inspection

15 Council must be contacted at least 48 hours prior to the opening of the premises so that a final inspection can be undertaken.

Food Safety Advice

16 To comply with Clause 4 of Food Safety Standard 3.2.2, NSW Health should be notified of details of the food business. You are referred to the website where this may be done cost free comply with Clause 3 of Food Safety Standard 3.2.2, a food business must ensure that persons undertaking of supervising food handling operations have appropriate skill and knowledge of food hygiene and safety matters.

Information relating to food businesses may be obtained on Council’s website Disposal area

17 Designated garbage and recycling storage area shall be provided in accordance with AS 4674 – 2004. The construction requirements of the garbage area under AS 4674 require a covered area with a tap and drained to sewer. (See Section 2.4 Garbage and Recyclable Materials AS4674-2004).

Lighting

18 To protect the amenity of the local area, any outdoor lighting of the deck area and gardens is to be positioned, directed and shielded so that it does not cause nuisance to adjoining and nearby properties.

19 A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 13 20 92 for assistance.

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, as it can take some time to build water/sewer pipes and this may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to issue of an Occupation/Subdivision Certificate.

20 In accordance with Clause 94 of the Environmental Planning and Assessment Regulation 2000, the following works will apply to the existing building:

21 To safeguard the local amenity, reduce noise nuisance and to prevent environmental pollution during the construction period:

Plans on site

22 A copy of the stamped and approved plans, and Conservation Management Plan and development consent and the construction certificate are to be on the site at all times.

Protection of vegetation

23 To preserve the natural site features and limit site disturbance existing vegetation must be protected by suitable guards / barriers to prevent damage as a result of the construction phase. This consent does not approve the removal of any trees. Separate consent is required for any tree removal on site.

Compliance with standards

24 All external engineering works required by this development are to be in accordance with Council's Specification for Engineering Work for Subdivisions and Development, Part 1—Design and Part 2—Construction (Development Control Plan No. 31), Australian Rainfall and Runoff 1987 and other relevant Australian Standards. The design and construction is to include any additional works to make the construction effective.

25 Prior to the issue of an Occupation Certificate the following engineering works shall be constructed by the applicant at the applicant’s expense:

Parking Bay Construction

26 Deleted.

Sedimentation and erosion control

27 The applicant shall engage a qualified person to prepare a sediment and erosion control plan in accordance with the principles outlined in the ‘Managing Urban Stormwater Soils and Construction’ (Volume 1), dated March 2004 by Landcom NSW.

The applicant shall ensure sedimentation and erosion control measures are installed prior to commencement of construction and that these measures are also maintained at all times during construction in accordance with the plan.

28 Where works are carried out on Council or public lands (ie. roads, parks etc.) by or on behalf of the applicant, the following conditions shall be satisfied:

Approval of the engineering designs by Council is subject to the payment of the prescribed Engineering Development Fees at the time of lodgement. All works in Council’s road are to be at no cost to Council.

b). An on site meeting is to be arranged with Council’s Supervising Engineer prior to the commencement of any work in Council’s road for the purpose of a pre-construction meeting. Council’s inspection fee is to be paid prior to the meeting.

c). The person or company carrying out the works will be required to carry public liability insurance to the value of $10 million. The policy shall indemnify Council from all claims arising from the execution of the works. Proof of the policy is to be provided to Council’s Development Engineer at the pre-construction meeting.

d). The person or company carrying out the works shall submit to Council reference demonstrating experience in the type of work proposed to be undertaken. The person or company shall obtain approval from Council to carry out the works prior to works commencing.

e). The applicant will be required to pay for inspections in accordance with Council’s fees and charges. The specific stages of inspection required will be advised at the pre-construction meeting.

f). Prior to issue of the Roads Act approval, a Traffic Management Plan prepared by a chartered civil engineer is to be submitted to Council for approval. The Traffic Management Plan is to address but not be limited to the following: loss of on street parking, construction vehicle travel routes, safety of the public, materials storage and handing, deliveries and construction traffic and parking.

A minimum of seven (7) days notice shall be given to residents if access by residents will be affected. A copy of the letter to residents and a list of addresses notified shall be submitted to Council for approval.

g). Safety devices such as signs, barricades, barriers, warning lights, etc. shall be placed where works affect Council roads and shall be in accordance with Australian Standard No. 1742—Manual of Uniform Traffic Control Devices and Roads and Traffic Authority Manual—Traffic Control at Work Sites 1998. Details prepared by a qualified person shall be submitted to Council for its approval with the Traffic Management Plan Report.

The contractor shall submit to Council the names of proposed traffic controllers with a signed declaration that they are appropriately trained in the duties of traffic controllers and Roads and Traffic Authority accredited.

Bond

29 An unconditional (open ended) performance maintenance bond to the value of $2,000 to guarantee the safety of the public, environmental protection performance and maintenance during and after construction in Council's road shall be paid to Council.

This bond shall be retained for six (6) months after construction is completed to the satisfaction of Council's Supervising Engineer. The bond period commences generally at the issue of a final inspection by Council. The bond will be released upon an application being made by the applicant subject to the payment of a bond release fee and a bond release inspection that indicates all works are satisfactory.

Relocation of services

30 The applicant shall carry out the relocation or alteration of public utilities or any existing services made necessary as a result of this development at no cost to Council. Satisfactory arrangements shall be made with the relevant authority concerned and a certificate of clearance shall be obtained from each relevant authority and submitted to the Principal Certifying Authority prior to release of the Construction Certificate.

Repair of damage

31 The applicant shall repair or reconstruct all damages caused by construction activity relating to the development as required by Council's Supervising Engineer prior to release of the Occupation Certificate.

Restore disturbed area

32 All disturbed earthworks and/or batters are to be restored, stabilised, topsoiled and turfed/revegetated to Council's satisfaction prior to release of the Occupation Certificate.

Works as Executed plans

33 Prior to the issue of an Occupation Certificate, a Works as Executed Plan of all external engineering works together with an engineer’s certification confirming that all works have been constructed in accordance with the approved plans shall be submitted to Council for approval.

+ To protect the visual amenity of the neighbourhood and the city, an application for advertising sign/s must be made to and approved by Council prior to its erection. The advertising sign must be in accordance with Council’s Outdoor Advertising Policy. An application form, fee advice and a copy of the policy are available from Council’s Katoomba or Springwood offices.

CITATION:	R.E.D. Industries v Blue Mountains City Council [2008] NSWLEC 1519
PARTIES:	APPLICANT R.E.D. Industries Pty Limited RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10522 of 2008
CORAM:	Brown C
KEY ISSUES:	Appeal :- appeal against conditions imposed on the approval for the use of an existing building for tourist accommodation - noise - numbers of patrons - car parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 2005
DATES OF HEARING:	9/12/08
EX TEMPORE JUDGMENT DATE:	9 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A White, solicitor SOLICITORS Benetatos White RESPONDENT Ms P Hudson, solicitor SOLICITORS Marsdens