Randall Pty Ltd v Leichhardt Municipal Council

[2004] NSWLEC 558

Land and Environment Court

of New South Wales

CITATION:	Randall Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 558
PARTIES:	APPLICANT Randall Pty Ltd RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	11063 of 2004
CORAM:	Tuor C.
KEY ISSUES:	Development Consent :- deferred commencement condition Noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	30/09/2004
EX TEMPORE JUDGMENT DATE :	09/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS Moloney Lawyers RESPONDENT Ms H P Irish, barrister SOLICITORS Leichhardt Municipal Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

30 September 2004

11063 of 2004 Randall Pty Ltd -v- Leichhardt Council

JUDGMENT

1 This is an appeal against the refusal by Leichhardt Council (the council) to provide written approval of satisfactory compliance with deferred commencement condition No 1 of the development consent (D/2003/349) granted by the Court on 31 May 2004 (Appeal No 11265 of 2003).

2 The approved development is for internal alterations to an existing hotel (Monkey Bar) at 255 Darling Street, Balmain, and to use Shop 1, 251-253 Darling Street, Balmain, for hotel purposes. The deferred commencement condition states that:

Certification is to be provided by a qualified acoustic engineer that the proposed building works will ensure the standard noise criteria issued by the Liquor Administration Board, namely:

LA10 noise level emitted from the premises shall not exceed the background noise level in any Octave Band Frequency by more than 5dB(A) between 7am and 12 midnight at the boundary of any affected residence.
LA10 noise level emitted from the premises shall not exceed the background noise level in any Octave Band Frequency between 12 midnight and 7am at the boundary of any affected residence.
The noise from the premises shall not be audible within any habitable room in the residential premises between 12 midnight and 7am

is satisfied at all times during the operation of the Hotel premises including the proposed extension at Shop 1, 251-253 Darling Street.

3 Noise control certification was submitted by Mr. B Murray of Wilkinson Murray Pty Ltd. This stated that:

It is concluded that the additional sound spilling from the existing bar at the Monkey Bar into the proposed extension will result in total future Hotel noise levels which will comply with Condition 1 of the consent. This assumes that music within the bar is limited to a maximum noise level of 85 dBA.
Sound levels in the apartment will be less than 20dBA and are expected to comply with Condition 1, based on the proposed construction.
Sound levels across Darling Street will be at least 7dBA less than the background noise levels in octave bands during playing of music in the existing bar after midnight and will be inaudible inside.

4 The submission of Ms Irish, on behalf of council, was that the certification was conditional upon operational measures ie a limitation on the maximum noise level to 85dBA, to achieve compliance with the requirements whereas the deferred commencement condition required the building works to achieve this compliance. Ms Irish also raised concerns about the methodology employed in the certification, particularly that no measurement of exiting noise conditions had been undertaken prior to midnight. No expert evidence was provided to the Court to support this submission.

5 Mr Clay’s submission, on behalf of the applicant, was that inherent in the certification were assumptions about the noise levels that would be generated by the operation of the hotel and it was appropriate that the certification be conditional upon operational factors as well as building works. This was reinforced by other conditions of approval, particularly condition 19 which states:

The acoustic measures proposed to satisfy deferred commencement condition 1 are to be implemented and certified prior to the occupation of the premises.

6 Mr Murray provided evidence to the Court on the methodology he had employed which are summarised in his report:

This report provides the required certification. In accordance with the Condition, it addresses the proposed building works and certifies that these works are consistent with ensuring the noise limits referred to will be met by the hotel premises. The proposed building works will have an effect upon noise being transmitted from the existing hotel into 251 Darling Street and from there to the apartments above and into the surrounding area. The building works will have no effect upon the noise transmitted from the existing hotel out of the windows and doors of that hotel to the surrounding area, or upon noise generated within the courtyard.
The report therefore addresses those transmission paths which are relevant to the proposed building works. As required by Condition 21, acoustic testing will be carried out after the extension of the hotel is occupied and this testing will relate to all noise emanating from the hotel (existing hotel and extension).
No separate sound system is proposed within the extension and associated gaming room and music in these areas, particularly the extension to the bar, will be audible only as a result of the playing of music in the existing bar.

7 Mr Murray clarified that if the proposed works comply with the noise criteria after midnight they would meet the criteria before midnight, as this is a less stringent.

8 I accept that the certification provided by Mr Murray meets the requirements of Deferred Commencement condition No 1. The certification states that the total future noise levels will comply with Condition 1 of the Consent. This assumes that music within the bar is limited to a maximum noise level of 85dBA.

9 Inherent in the certification is the nature of construction proposed and the maximum noise level that can be generated by the operation of the hotel to meet the criteria. The certification assumes that music in the bar is limited to a maximum level of 85dBA and that the construction is as described in Section 2.1 and 3.1 of Mr Murray’s report. The satisfaction of the deferred commencement condition and condition 19 of the consent are therefore reliant on these acoustic measures being implemented and maintained.

Orders

The orders of the Court are:

1. The appeal is upheld.
2. The certification provided by Mr B Murray of Wilkinson Murray Pty Ltd dated August 2004 satisfies the requirements of Deferred Commencement Condition No 1 of development consent (D/2003/349) granted by the Court on 31 May 2004 (Appeal No 11265 of 2003). The certification requires the following acoustic measures to satisfy Condition 19 of the consent:
i) music in the bar being limited to a maximum noise level of 85dBA; and
ii) works specified in 2.1 and 3.1 being implemented and maintained.
3. The applicant is to file and serve a signed copy of Mr Murray’s certification by 5 October, 2004.
4. The exhibits, except Mr Murray’s certification, may be returned.
________________________

Annelise Tuor
Commissioner of the Court