Ragni Devi and Lalit Kumar v Camden Council
[2006] NSWLEC 644
•05/10/2006
Land and Environment Court
of New South Wales
CITATION: Ragni Devi and Lalit Kumar v Camden Council [2006] NSWLEC 644 PARTIES: FIRST APPLICANT
Ragni DeviSECOND APPLICANT
RESPONDENT
Lalit Kumar
Camden CouncilFILE NUMBER(S): 10407 of 2006 CORAM: Hoffman C KEY ISSUES: Development Consent :- Amendment of existing consent, pollution concerns, public interest, hours of operation, noise, traffic, safety, rural residential amenity LEGISLATION CITED: Camden Local Environmental Plan No. 48 DATES OF HEARING: 05/10/2006 EX TEMPORE JUDGMENT DATE: 10/05/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & GoughRESPONDENT
Mr L Castellan, solicitor
SOLICITORS
Ritchie & Castellan
JUDGMENT:
- THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
10407 of 2006 Ragni Devi and Lalit Kumar v5 October 2006
- Camden Council
1 This is a class one appeal No. 10407 of 2006 between Ragni Devi and Lalit Kumar against the Council of Camden in regard to the amendment of conditions of development consent No. 427/04 for a vehicle depot at No. 91 Rossmore Crescent, Rossmore. The Chief Judge had directed and the parties had agreed that the matter would be dealt with by way of a s 34 Conference on site and this was carried out on 5 October 2006.
2 Attending the conference on-site for the council was:
- Mr L Castellan, solicitor
- Mr C McIntyre, council’s manager, development
- Mr R Thornton, of Camden Council, senior development assessment officer,
- Mr D Carey of Camden Council, student planner and
- Mr J Sheridan, senior compliance officer, Camden Council.
3 Also attending were resident objectors:
- Mr & Mrs M & P Patterson of No. 49 Rossmore Crescent, opposite the site
- Mr S Nedic of 104 Rossmore Crescent, slightly to the east of the site.
4 Attending for the applicant was:
- Mr C Gough, solicitor
- Mr Lalit Kumar and Ms Ragni Devi, applicants of 91 Rossmore Crescent
5 I should note the street numbering is not conventional for some reason. Number 91 is adjoining No. 101 and No. 79.
6 Also attending was:
- Mrs F Hardy of 101 Rossmore Crescent, the eastern neighbour of the property who supported it.
7 In evidence there was a petition signed by other nearby and adjacent residents who supported the proposal. They were:
- Mr P Ray of 79 Rossmore Crescent, the western neighbour of the site,
- Mr J Matthews of 34 Karen Road,
- Mr V Fayers of 22 Karen Road
- Mr A Sukkar of 48 Karen Road which are properties to the north at the rear of the site
- Mr J Xerri of 84A Rossmore Crescent
Mr J Callaby of 84 Rossmore Crescent
8 Issues in the appeal are:
1. Whether the proposed development is inconsistent with the residents’ expectations as to the type of development that could be undertaken in the Rural “B” (2 ha) Zone under Camden Local Environmental Plan No. 48 .
2. Whether the proposed development would be in the public interest having regard to the submissions of local residents.
3. Whether the proposed development should be approved having to the safety concerns arising from the storage of fuel on the property.
9 In considering this matter it is useful to look at the zoning table for the 1B Rural Zone which objectives are:
- a) to provide for rural residential living opportunities on land having ready access to urban areas and facilities;
b) to ensure that the development maintains and contributes to the rural character of the locality and minimises disturbances to the landscape and agricultural productivity;
c) to ensure that development does not adversely affect rural and residential amenity and does not create unreasonable or uneconomic demands for provision or extension of public amenities and services;
d) to make provision for a reasonable range of suitable activities associated with rural residential occupations of the land; and
e) to permit alternative forms of accommodation which do not imperil the rural productivity of the area and which are consistent with the environmental quality of the immediate area.
10 The use is an innominate use under the Land Use tables since it is not mentioned in the prohibited list and all other defined uses are permitted. In the local environmental plan I noted “vehicle depot” is defined as “a building or place used for the principal purpose of parking and used incidentally for servicing of motor vehicles which may include trucks, trailers and buses”.
11 The council had considered the amendments to the development consent and had concluded with a recommendation for approval. However, the matter being subject to appeal, the decision could only be tendered at the s 34 Conference.
12 There was still a number of matters of disagreement, however, between the applicant and the respondent as to the changed conditions that were proposed in Exhibit 4.
13 In hearing the objectors, Mr Patterson in particular was concerned about noise. He said there had been a long history of non-compliance with approval and he was aware of five development applications lodged on the subject property, and the activities had caused considerable disturbance to the amenity of the rural area.
14 His house was on the high side of the road so they have to look at the subject property. He said to-date because it was difficult for low loaders to enter the property down the embankment from the road, loading and unloading of graders onto trucks occurred on the public street itself. This partially blocks the road which causes considerable noise and activity sometimes late at night or early in the morning.
15 He was also concerned that the proposed vehicle compound on the 5 acre allotment was being moved closer to the street. It would still be approximately 60 m from the street, however, it had been proposed 100 m. The change in the plan that originally approved by council was brought about by the compound being too close to a watercourse on the site causing a problem for storage of any chemicals or fuels on site. The amendment therefore to the original consent involved a new drawing with the relocated position of the compound.
16 In the new plan a landscape buffer to screen the activity area from the neighbours and from the street was proposed. The council had concluded that this would be sufficient. The neighbours on the eastern side of the subject property which would be most affected by the driveway to the compound and its activities were the Hardys and they indicated support for the proposal.
17 Mr Nedic who lived on the opposite side of the street and slightly east of the proposal, said that his concerns had been once again the problem of noise of loading and unloading trucks on the street which caused disturbance and potential traffic danger. There was also concern about possible spillage of diesel and its smell causing environmental impacts and he was also concerned, as was Mr Patterson, that the original conditions of consent have never been complied with.
18 The applicant Mr Kumar said that the problem with the original consent was it had only one year period of operation which did not justify any investment of capital in the works. He said he would do the work properly if consent was granted to delete 12 month limit.
19 I was informed that the 12 month limit would arise within the next week and therefore it was important to obtain the consent and therefore Mr Kumar was prepared to make concessions. He indicated that he owned five graders and was seeking to have six maximum on site. He said normally that would only occur around the Christmas period or extended wet periods when graders could not operate. Normally there would be three on-site. He said the nature of maintenance that would be done was refuelling, checking oils and topping them up, changing tyres and changing blade edges which did sometimes involve hammers, but usually only spanners.
20 Other operations were not as noisy, and the major noise complained of by all residents was start up of the motors of the graders. He said this could be limited to a period of 15 minutes when the graders were either being taken off the low loaders, and parked, or driven onto the low loaders for exit. He estimated that the number of unloadings or loadings per week was two or three and apparently council monitoring by council staff had verified that frequency.
21 In turning to the conditions proposed in conjunction with the potential deletion of the time limit on the consent, and the past history of operations on the site changes were made to conditions in Exhibit 4 to:
- limit the size of graders that could be had on site
- requiring the development works to be constructed within four months of the date of any amendment
- limiting any refuelling or checking of oil or indeed the supply of fuel from tankers to be carried out within the bunded area.
- the diversion of overland flow stormwater from the compound area to minimise potential of any oils or other pollutants reaching the creek.
the upgrading of the drive entry to the property so that the entry and exit of low loaders could be accommodated
22 The final point of disagreement was in regard to the hours of operation.
23 The applicant put that the hours of operation under the original conditions of consent, whether by error or not, were unlimited. The respondent pressed that subsequent conditions in the consent did limit operations. There was some ambiguity in the wording.
24 It was proposed by the respondent that operations be limited to 7 am to 6 pm Monday to Friday and 7 am to 4 pm Saturday and that there be no activity at all on Sunday and public holidays.
25 The applicant pressed that the low loader trucks, coming on Sunday to pick up graders for operations on the Monday or the day after public holiday, came from another company. It is not a desirable thing to leave a grader unattended at a construction site over a weekend due to potential vandalism. Mr Kumar reported that sometimes his graders were vandalised when left on sites.
26 The applicant sought a short period on a Sunday or public holiday within which outgoing graders only could be picked up for delivery to a site to commence early on the next morning.
27 I have determined that if the period is limited to two hours only between 11 am and 1 pm during the most active part of the day when background noises would mask some of the activities, loading of graders and exit of the outgoing loaders only may be permitted. Also to compensate for that, work and activity at the vehicle depot should cease at noon on Saturdays. In consideration of all the other conditions, generally agreed by the parties to properly control its use, it seems to me that the objectives of the Rural 1B Zone can be achieved provided the applicant and any operator of the proposal abides by the conditions in the future.
28 Therefore the orders of the Court are:
1. That the appeal is upheld.
2. The application to amend Development Consent No. 427/04 issued by Camden Council is granted in regard to a motor vehicle depot for 6 road graders at No. 91 Rossmore Crescent, Rossmore. The amended conditions to be as annotated in Exhibit 4, and as amended by this judgment and collated with a full set of conditions and issued as Annexure “A” hereto.
3. The exhibits are retained on the Court’s file.
___________________
K G Hoffman
Commissioner of the Court
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