Robertson v Wingecarribee Shire Council

[2018] NSWLEC 1157

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Robertson v Wingecarribee Shire Council [2018] NSWLEC 1157
Hearing dates:	20, 21 March 2018
Date of orders:	04 April 2018
Decision date:	04 April 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Courts orders: (1) The appeal is upheld. (2) Development consent is granted to development application (DA 17/0196) to permanently use the existing barn and new farm building for the purpose of wedding receptions and associated activities at Montrose Lot 2 DP 620221, 11 Ormond Street Sutton Forest in accordance with the conditions of consent in Annexure “A”. (3) The exhibits are returned except 2, 3, G, H and K.
Catchwords:	APPEAL – development application for use of barn and farm building for a wedding reception – permissibility - heritage conservation clause -interpretation of development consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 Ryde Municipal Council v Royal Ryde Homes (1970)19 LGRA 321
Texts Cited:	ICOMOS Charter for Places of Cultural Significance 2013 (Burra Charter)
Category:	Principal judgment
Parties:	Bruce Robertson (1st Applicant) Fiona Robertson (2nd Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: Ms Sandra Duggan SC (Applicants) Ms Anne Hemmings (Respondent)   Solicitors: Ms Jane Hewitt, HWL Ebsworth (Applicants) Mr Christopher Shaw, Shaw Reynolds (Respondent)
File Number(s):	17/144901
Publication restriction:	No

Judgment

Introduction

1. The applicants, Bruce and Fiona Robertson own a rural property at 11 Ormond Street, Sutton Forest (the site). It contains an historic homestead called “Montrose” which is “Heritage Item 1006” within Schedule 5 of the Wingecarribee Local Environmental Plan 2010 (WLEP). The site is lawfully used as a berry farm and a venue for wedding receptions.

2. The wedding reception function is authorised in certain spaces within the homestead and its garden curtilage, pursuant to a development consent granted by the Council in 1988 (the 1988 Consent). I note that the parties are at issue about the extent of the reception use approved in the garden under the 1988 development consent - in particular, whether it included approval of a reception in a marquee in the garden, if required.

3. There is also a “barn” erected on the site. On 7 April 2016, after a hearing, the Court granted development consent (14/1329) authorising the temporary use (for a period of 36 months) of this building as a wedding venue. This time limited consent was facilitated by cl 2.8 of the WLEP which provides for “temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land”.

4. Adjacent to and separated approximately 1.7m from the barn, is a recently approved building referred to in the evidence as the “farm building”. It contains an open floor area (constructed of cavity brickwork) underneath a pitched gable, colourbond roof and a timber-framed and clad storeroom on the southern elevation under a shallow, sloping roof.

The proposal

5. The applicants are seeking development consent to permanently use the “barn” and the new “farm building” as venues for weddings and associated activities. Their application to the Court, pursuant to s 8.9 of the Environmental Planning & Assessment Act 1979 (EPA Act), is responsive to the Council’s decision to refuse them consent for that purpose.

6. To a large extent, the proposal now before the Court reflects the recommendations of the parties’ experts. The experts who gave evidence in this matter were :

• Debra Laidlaw (the Council’s consultant planner) and Scott Lee (the applicants’ consultant planner). Their joint report (Exhibit 4); and

• Greg Patch and Matthew Taylor (the applicant’s heritage consultant and heritage architect) and Sarah Farnese (the Council’s heritage consultant). Their joint report is Exhibit 5.

7. Originally, the Council had raised a contention in its Statement of Facts and Contentions (Exbhit 2) about a lack of relevant information. In particular, the Council asserted that there was no necessary conservation works identified outlined in the application - only a requirement for inspections. While the applicants maintain that this is not the case, and that the scheduled, necessary conservation works have always been identified as required by cl 5.10 (10) (b) of the WLPE. At the hearing, the Court granted the applicant leave to supplement the application with further detail. This included a revised Conservation works programme and schedule (dated 16 March 2018) identifying more precisely the timing of the necessary conservation works (revised CWS); and additional plans prepared by Archnex Designs.

8. This further information was assessed by the heritage experts in a supplementary joint report marked (Exhibit K). Relevantly, it records that the heritage experts are now satisfied with the identification of all necessary conservation works and the timing of these works to the heritage item as required by (cl 5.10 (10) (c)). In that regard, Ms Farnese now agrees that the restumping of the dining room and the inspection of Bedroom 3, the library and Dining Room for structural integrity are necessary works. Furthermore, she is of the opinion that the Future Care and Maintenance Schedule should include interior elements and should be amended to include those elements. Moreover, these interpretation measures should be based on an Interpretation Plan to be prepared in accordance with the NSW Heritage Branch Guidelines. In relation to timing, she accepts that the works listed between year 1-3 in the revised CWS are necessary conservation works that should be undertaken as a deferred commencement condition to satisfy cl 5.10 (10) (c) of the WLEP. And, as there was no agreement between the heritage experts about the need for cladding, a new front fence or repainting of the 1980s brick wing – the applicants have agreed to remove these works from the revised CWS

9. Importantly, Ms Farnese’s objection to the proposal - on the basis that the application offers no substantial worthwhile conservation works (over and above general maintenance) and that the development would not facilitate conservation commensurate with allowing a prohibited use on the site through the heritage incentive clause - is no longer at issue (Exhibit 5 p6 at [2h]). Ms Farnese now agrees with Mr Patch and Mr Taylor that the word “conservation” in cl 5.10(10) of the WLEP has the same meaning as in the Australian ICOMOS Charter for Places of Cultural Significance 2013 (Burra Charter). She also agrees that “Interpretation” is a process under the definition of “Conservation” in the Burra Charter and that the interpretative plaques and tree plaques proposed under the revised CWS are an appropriate addition to the conservation works.

10. By the conclusion of the hearing, apart from some minor disagreements about the terms of the deferred commencement conditions, the heritage experts were satisfied with the heritage aspects of the application: cl 5.10 (1) (c) (a). This did not however, resolve the Council’s concerns about my jurisdiction and the terms of the 1988 consent; and its surrender - together with the surrender of the 2014 consent; and, their replacement with a consolidated consent.

Issues

11. The remaining issues can be summarised as follows:

1. Jurisdiction - the proposal does not satisfy the preconditions to the grant of consent under the conservation incentive cl 5.10 (10) of the WLEP. In particular,

1. the Court cannot be satisfied that all necessary conservation works have been sufficiently identified in the heritage management documents. The conditions defer an assessment of the impact of the works on the heritage item: deferred condition 1 b;

2. the Court cannot be satisfied on the evidence that the development will not have any significant adverse acoustic impact on the amenity of the surrounding area (cl 5.10 (10) (e) of the WLEP;

2. In the event that jurisdiction is enlivened under cl 5.10(10) of the WLEP then the Court needs to determine the following matters:

1. whether the 1988 and 2014 consents should be surrendered and the developments approved be consolidated in one new consent; and, if so;

2. whether the 1988 consent approved of the reception use in a marquee in the garden, if required.

3. The terms of the final conditions of consent;

4. The public interest.

Jurisdiction

12. As noted, the grant of consent is dependent upon the dispensation afforded by the conservation incentive in cl 5.10 (10) of the WLEP.

13. The Heritage Conservation cl 5.10 (1) has four objectives. Two of which are directly relevant. They are:

(a) to conserve the environmental heritage of Wingecarribee,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

14. However, in order to invoke the conservation incentives in this case I must be satisfied that the precondition outlined in sub cl 5.10 (10) are met. It states:

(10) Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item, or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a) the conservation of the heritage item or Aboriginal place of heritage is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

The applicants’ position with respect to jurisdiction

15. The applicants submit that the evidence before the Court adequately addresses all of the preconditions in sub cl (10).

Precondition subclause (10)

16. The word “facilitated” is not defined in the WLPE. So, the applicants have relied upon the definition in the Macquarie Dictionary (Revised Third Edition). In this context the applicants submit that the most appropriate meaning is “to make easier”. With that in mind, they further submit, on the basis of the heritage experts’ final evidence in their supplementary report (Exhibit K), that I can be satisfied that an approval of consent will “facilitate” the conservation of the heritage item and thereby the precondition in subclause (10) (a). Without this consent the applicants are not required to carry out the identified necessary conservation works stated in the deferred commencement conditions. Moreover, the consent cannot operate until the identified necessary conservation works are completed. In short, the grant of consent will facilitate or “make easier” ‘the conservation of the heritage item.

17. The applicants also submit that subclauses (10) (b) and (c) are addressed by the deferred commencement conditions. The necessary works are in accordance with the “heritage management documents” as defined in the WLPE and include Exhibits C, D, E, and K.

18. They also submit that I can be satisfied on the evidence that the proposed development would not have any significant adverse effect on the amenity of the surrounding area subclause (10) (e).

19. With respect to subclause (10) (e) the applicants rely upon the traffic experts’ assessment that there are no identified traffic concerns raised by the application subject to the proposed conditions of consent, which include a requirement for the positioning of appropriate signage to remind guests to leave quietly, and in a particular direction, in order to avoid any unreasonable disturbance to the neighbours. Similarly, the applicants submit that the acoustic testing and analysis undertaken by Pollution Control Consultancy and Design as outlined in their acoustic reports dated June 2016 and July 2015 (Exhibit F) confirm that all noise from the approved activities will be appropriately controlled. To that end, the recommendations in the two acoustic reports are incorporated as conditions in the consent - including a condition setting a maximum noise limitation for all approved operational activities on the site (condition 19). The conditions also place restrictions on the sound amplification systems used in the barn based on the findings in the June and July 2015 acoustic reports. The acoustic reports set out the testing that the experts carried out in respect of the 11 nearest residences, and noise assessment points proximate to the site; and their conclusion that there is compliance with the EPA New South Wales Industrial Noise Policy at 10 of the nearest residential premises at any time, regardless of the background noise level (Exhibit F July 2015 p9 at 6.3). With respect to the property where the accepted level was exceeded at 2 Greenhills Road, the acoustic experts conclude that the LAeq, Ti would also comply with the Criterion of Intrusiveness unless the Background Noise Assessment Point on that property drops to below 32dB (A). This they assess, is unlikely due to the high background level from the wild life, such as frogs and crickets.

20. The acoustic testing and analysis also investigated some of the concerns raised by the owners at 10 Cross Street (The Roperts). These objectors believe that there is a “sound corridor” between the barn and their property, which amplifies noise from the barn. However, the experts’ assessment of this matter concluded that there was no such “sound corridor” (Exhibit F July 2015 p9 at 6.3).

21. Ultimately, the applicants submit that they have introduced for the first time the imposition of stringent limitations on their use of live and amplified music on the site and in the garden beyond that required under the existing consents and that there can be no doubt that the restrictions in place will ensure that the development would not have any significant adverse effect on the amenity of the surrounding area: subclause (10) (e). The acoustic conditions that they are referring to are reproduced below and taken from Exhibit G – (marked in blue):

• Condition 13 requires all operational noise levels on the site to comply with a specified maximum noise level. The condition states:

The person with the benefit of this development consent must ensure that operational noise levels measured in 15-minute intervals (LAeq 15min) for the development must not exceed the Rating Background Level (RBL) by more than 5dB (A), when measured at the most affected point at the boundary of the most affected neighbouring residential property or if that point is more than 30 metres from the most affected residence, at the most affected point within 30 metres of the residents. Without limiting the above, operational noise levels must also fall within the requirements of the acceptable noise level amenity of the area as specified by the NSW Industrial Noise Policy. In the event that operational noise is identified as exceeding the requirements of this condition, the person with the benefit of this development consent will be required to undertake such works as is necessary to remedy such exceedance within 60 days. Where the measured LA 90, 15 mins of Background Noise level is less than 30 dB (A) the Background Noise Level is assumed to be 30 dB (A).

• Condition 14: The person with the benefit of this development consent must comply with relevant noise control provisions contained within the Protection of the Environment Operations (Noise Control) Regulations 2008 (NSW) and Policies to ensure local amenity is not adversely affected by noise impacts associated with the development.

• Conditions 15: Within the Barn the sound system installed and the amplifier settings shall be in accordance with Report EN-WRV-210715AJ July 2015 prepared by Pollution Control Consultancy and Design. No amendment may be made either to that system or to the amplifier settings except with the written approval of Council.

• Condition 16: Prior to the use of the detached farm outbuilding commencing, a report shall be prepared by a qualified acoustical consultant confirming:

1. the sound system to be installed;

2. the maximum sound level at which the sound system shall operate ( to achieve the acoustic limitation in condition 13);

3. the conditions under which the use of the detached farm building must operate so as to achieve compliance with conditions 19 and 20;

The detached farm building must be operated in accordance with the recommendations and requirements of this report.

• Condition 17: all music and the use of the amplified sound system and food and beverage service are to cease by 11pm;

• Any amplified music or sounds systems shall satisfy the requirement of conditions 19 and 20 at all times;

22. The applicants also submit that they propose several other conditions of consent which work collectively to achieve the outcome required by subclause (10) (e) Again, they are reproduced below:

• Condition 6: The maximum number of guest bookings permitted per function is 140.

• Condition 7: Only one function may be conducted at any one time upon the property.

• Condition 8: No food /drink service of any kind may occur external to the barn or farm building after 6pm on any day.

• Condition 9: All functions booked on any Friday or Saturday night or on any day immediately preceding a public holiday are to cease by 11pm. All guests are required to leave the site by 12pm.

• Condition 10: On Sundays to Thursdays inclusive, all food and drink service is to cease by 6.30pm and all guests are required to leave the property by 7.30pm.

• A plan of management is to be prepared and submitted to the Council prior to the commencement of the use detailing:

1. Hours of operation;

2. Staffing arrangements;

3. Security arrangements;

4. Car parking management;

5. Noise management ;

6. Water management;

7. Emergency management ; and

8. Complaint register and complaints management processes.

The Council’s position with respect to jurisdiction

23. The Council submits that the application defers essential matters that should be available now for a proper assessment of the matters raised by cl 5.10 (10). Without that information, it contends that I cannot be satisfied on the evidence that I have jurisdiction in this case.

24. First, the Council submits that the Court does not have the plans, specifications and a Works Method Statement for the proposed works identified in the “Fabric Identification, Grading of Significance, Conservation Works and Works programme” including details of the methods of flooring and roof replacement, the material and techniques to be used, fabric, colours and finishes. Without this detail, the Council argues that I do not know all relevant detail of the necessary conservation works required by cl 5.10 (10) (c) and thereby cannot be satisfied that the “conservation of the heritage item is facilitated by the granting of consent”: cl 5.10 (10) (a).

25. Secondly, the Council submits that I do not have sufficient acoustic evidence about the impacts of the reception use in the farm building to properly assess the application: subclause (10) (e). As the only acoustic evidence before the Court (Exhibit F) relates to wedding receptions held in the barn, the Council submits that the expert’s conclusions about that use cannot reliably inform the operational noise conditions for the reception use in the farm building. Any acoustic assessment of the use of the farm building has been deferred until after the grant of consent. And, while the Council and its planner, Ms Laidlaw, supports the proposed acoustic condition for assessment of the use in the farm house in the terms expressed in condition 19 (Exhibit L), the Council submits that this testing should be completed before any approval of the DA. It also accepts Ms Laidlaw’s recommendation it should be more extensive; and should extend to an assessment of the acoustical impact of different types of wedding functions in the garden- e.g. in terms of numbers of guest, locations within the garden and types of music in order to determine the parameters within which a function could occur in the grounds without adverse impact on residential amenity (Exhibit L). Otherwise, the consent will be unduly reliant upon management measures or uncertain in effect (Exhibit L at p1 (19). Put simply, in order to inform the state of satisfaction required by subclause (10) (e) the Court needs to know now the type of sound system to be installed in the farm house; the maximum sound level at which the sound system may operate and the conditions under which the use of the detached farm building must operate.

Public interest - Lay evidence

26. The Court has also received oral and written evidence from several local witnesses in this case. Some of it was supportive; and some was not. Generally speaking, the objectors who did not support the proposal were concerned about amplified noise, increased traffic and dust and other amenity issues. Some were concerned that an approval of this application would set a precedent for inappropriate use of the heritage incentive clause. The supporters welcomed this commercial use in their local community as it supported local industries and jobs.

27. The oral evidence received at the s34 conference which preceded the hearing (which I facilitated) was recorded in writing by the parties’ solicitors at that time. An agreed copy of that evidence has been produced at the hearing as Exhibit A. The parties accept that this evidence together with my observation of the site and the locality at the conciliation conference is also evidence for the purposes of the appeal. While I do not need to summarise the public submissions that I have read in the Council’s case I would like to address in particular the evidence received from Mr Ropert.

28. Mr Ropert, who resides at 10 Conflict Street, Sutton Forest gave oral evidence at the s34 conference and the Court hearing in Sydney. After identifying his home for me (again) on a plan I recalled his property. It is comprised of several parcels of land and is diagonally opposite the site. Mr Ropert’s home is about 500m from the applicants’ site-boundary and is constructed in an elevated position. Mr Ropert is greatly disturbed by noise from the receptions held on the site (particularly noise generated by clapping and amplified music which he assumed is coming from the garden as well as the other venues on the site). While he openly conceded in Court that the use of the barn in recent times had not exacerbated the noise issues, he confirmed that the use particularly on the weekend adversely impacted upon his amenity. Mr Ropert expressed frustration about the applicants’ inaction in response to his complaints. He explained that his relationship with them had deteriorated over time and that in more recent times all communication between them was via email –which to date, had not resulted in any acceptable resolution of his concerns.

29. Mr Ropert accepted during cross-examination that his complaints about noise from the site conveyed by email were generally responded to by the applicants in a formulaic way and generally in a timely fashion. However, such responses proved ineffectual in addressing his concerns. Their invitation to meet at the property gate following a reported incident was of little use after the event had finished. And, after several attempts to resolve the matter through face to face meetings he had decided that it was best to avoid contact which had proved confrontational and of no benefit. Mr Ropert had reviewed the draft plan of management (POM) proposed in this case and expressed dissatisfaction with the processes outlined for dealing with complaints as it simply shifted the issue back to the Council to deal with. He said, that to date the Council compliance officer had not been available on the weekend to deal with his complaints and to resolve the issues. And, despite the applicants’ invitations to call on the police to address the matters – he was reluctant to do so for obvious reasons. While Mr Ropert was unable to suggest to me how the noise problems could be better addressed in the POM, he was plain in his view that an exacerbation of the noise problems through the grant of this application was not the answer.

Consolidated consent

30. In the event of an approval of this DA, the planners have indicated a preference for the surrender of the earlier 1988 and 2014 consents and the grant of a consolidated consent for the site. The applicants accept this outcome provided that the replacement consolidated development consent does not remove any existing entitlements under the earlier consents. In particular, they wish to retain the use of a marquee in the garden for receptions, if required as approved under the 1988 consent.

What does the 1988 development consent approve?

31. The applicants submit that the 1988 consent authorises wedding receptions in a marquee in the garden, if required. They rely on the words of the Notice of Determination (the Notice) issued by the Council on 20 October 1988 to the original applicant, M G Hutchison and (Exhibit 1 folio 276). Mindful that the consent is not personal to Ms Hutchinson but operates in rem: Ryde Municipal Council v Royal Ryde Homes (1970)19 LGRA 321 at 324; House of Peace at [23] the applicants refer me to the plan referred to in the consent under the heading “Purpose of Development”. It provides as follows:

Use of Homestead for Wedding Receptions – in accordance with the plans prepared by Pearson –Smith & Associates Plan No 1/7 Dated 15 April 1987 (the plan) except where amended by any conditions below.

32. The only copy of the plan referred to on the Notice and in evidence was taken from the Council’s DA file (Exhibit 6) and contains a handwritten notation which states:

ROOMS

TO BE UTISISED

FOR RECEPTION

DRAWINGROOM

LIBRARY

DINING ROOM

HALL

VERANDAH

COURTYARD

PLUS MARQUEE IN GARDEN

IF REQUIRED.

33. The consent includes few conditions. However, the applicants submit that condition 8 is relevant because it refers to the external yard area. The inclusion of a reference to lighting and public address system in the external yard gives support to the applicants’ interpretation that the consent authorised the reception activates outside and if required under a marquee. Condition 8 provides as follows:

External Yard Area

8. Details of any external lighting (intensity and direction) and Public address/music system in the external yard area shall be submitted with the building application, the Council approval.

34. The applicants submit that the authorised reception use in a marquee in the garden, if required, should carry forward into any consolidated consent granted in this case.

35. The Council accepts that the DA plan relied upon by the applicants is the plan reference named in the Notice but, submit that the copy in evidence does not contain a Council stamp. Therefore, it is unclear whether the handwritten notations on the plan relied upon by the applicants and stating receptions “… IN MARQUEE IN GARDEN, IF REQUIRED” was in fact approved.

36. Applying the usual rules of statutory interpretation to the 1988 consent Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83 at [18], the parties invite the Court to primarily look at the document constituting grant of approval, which in this case refers to a plan; and construe the words in context: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; Allendale Blue Metal Pty Ltd V Roads and Maritime Services [2013] NSWCA 103; LGERA 182 at [43] - [45]. However, the applicants submit that this has nothing to do with the intentions expressed in the development application and the correspondence on the Council file included in Exhibit 6. According to the applicants the consent properly construed permitted the development on the site for the purpose of wedding receptions as identified in the Notice in clear terms. When read subject to the external works and use approved by condition 8 it is reasonable to read the copy of the plan referred to in the consent taken from the relevant Council DA file to include the handwritten notations authorising the rooms to be utilized for reception “plus marquee in garden if required”. The fact that the plan does not contain a Council stamp does not detract from the authenticity of the plan in evidence.

Finding – 1988 consent

37. After careful consideration of the words of the 1988 consent issued for the development on the site which incorporates expressly a reference to the plan before the Court and taken from the Council’s relevant file, I am satisfied for the reasons outlined by Ms Duggan SC, for the applicants that the notations in handwriting were approved. Ultimately, as the applicants submit, the task is to search for the meaning of a particular document issued in a particular context: House of Peace v Bankstown City Council [2000] NSWCA 44 at [30]. It is reasonable to conclude on the evidence that in 1988 a handwritten notation on a plan was part of the development consent particularly in this case where condition 8 anticipates an external reception yard use with lighting and amplified sound in the yard or in other words the garden. There is no stamped DA plan for the 1988 consent before the court or record of such a practice by the Council on the evidence before me. I am told that the complete DA file for the consent is in evidence. Accordingly, I find that the approved use under the 1988 consent extended to receptions in a marquee in the garden, if required. Accordingly, it follows with the surrender of the 1988 and 2014 consents, which the planners endorse, that the consolidated consent needs to incorporate this approved use in this area.

Finding - Jurisdiction

38. Having dealt with the terms of the 1988 consent and its incorporation in a consolidated consent it is appropriate that I now address the issue of jurisdiction.

39. To overcome the prohibition caused by the operation of land zoning table, the applicants seek to utilise the conservation incentive in the WLEP.

40. Based on the agreed evidence of the heritage experts and subject to a consolidation of the 1988 and 2014 consents to overcome Ms Laidlaw’s concerns about proper coordination of the approved operations on the site, I am satisfied on the evidence subject to the proposed conditions that the precondition in cl 5.10 (10) (a)-(e) have been addressed. Under the new consent the development (barn and farmhouse building) would not have any significant adverse effect on the amenity of the surrounding area and would facilitate the conservation of the heritage item. In forming this view I have accepted the uncontradicted acoustic expert evidence. Ms Laidlaw is not an acoustic expert. Her concerns about noise impacts from the farmhouse and garden and the adequacy of analysis before the Court must be considered in that light. While she believes that it is necessary to have the further acoustic report required by condition 19 to hand now, and before a decision on the application under the EPA Act, the expert evidence and conditions in my view do not support this. I have also considered the objectors’ concerns, particularly those raised by Mr Ropert, whom I found to be a genuine and honest witness.

41. Most environments are affected by environmental noise which continuously varies. To describe the overall noise environment, a number of noise descriptors have been developed and these involve statistical and other analysis of the varying noise over sampling periods, typically taken at 15 minutes intervals. The acoustic evidence in this case in Exhibit F details the extent of potential noise impacts for the barn at nearby receivers and requirements for mitigation measures where relevant. Potential impacts have been assessed against relevant NSW Policies and Guidelines. As a result of that acoustic analysis a level of noise has been derived (having regard to background noise) which is appropriate to the activities on this site to maintain the acoustic amenity in the most affected properties. Under the consolidated consent, all operational noise coming from any approved reception activities on this site, including noise generated by amplified sound inside or outside a building, will be limited to a maximum measurable acoustic level (condition 13). An acoustic base level for the approved activities anywhere on the site will be able to be tested should the need arise. While the imposition of the conditions do not necessarily resolve a noise complaint immediately, as Mr Ropert stated in his evidence the use of the barn has not increased noise, if there is an exceedence of the authorised noise level there will now be an opportunity to carry out monitoring and to allow for the preparation of evidence to support any action for the breach of the consent noise conditions. And, while Mr Ropert believes that his noise complaints have not been addressed in a timely fashion or at all in some instances, in my assessment the consolidation of the consents with the proposed new conditions assist him in that regard. In this way I refer to the new plan of management coupled with the acoustic conditions in 14, 15, 16, 17 and 18 (Exhibit G), the limitation of 140 guest per reception and approval for only one reception at a time (within the approved hours of operations specified in other conditions of consent). I am satisfied on the evidence that his concerns and those raised by the other objectors have been satisfactorily addressed. I accept on the evidence that the development will not generate any significant adverse effect on the amenity of the surrounding area.

42. The Council, submits on the evidence of its planner, Ms Laidlaw, that I do not have sufficient acoustic evidence before me to form the request state of satisfaction required by cl 5.10 (10) (e). Ms Laidlaw believes that I need at this time of my assessment, an understanding of the noise levels that will be generated from the garden area and the farm building. I do not agree. That may have been the case had the applicants not agreed to the imposition of condition 13. There is now a noise limit which addresses all approved activities on the site; and the further testing mandated by conditions 15 and 16 (Exhibit G blue) are in my view ancillary matters aimed at achieving the standard imposed by condition 13. The acoustic evidence before the Court from the applicants is not contradicted by any other acoustic expert and for the reasons outlined, I believe, the evidence before me about this matter is sufficient to inform the requisite state of satisfaction required by cl 5.10 (10) (e).

43. The development has utilised the heritage incentive provisions. The clause does not require that I turn my mind to any financial basis for the use of the incentive clause. Nor do I believe that this particular decision will, as the Council submits, “open the flood gates” to future application in this local government area. This case turns on its own peculiar facts. The wedding reception use is authorised by an existing consent and an approval of this development as I said ensures that the otherwise unregulated use is now subject to comprehensive conditions which limit numbers and activities at the same time on the site; and in all respects seeks to protect and improve the amenity of the surrounding area. It is for this reason that on balance, I believe that the development as approved is in the public interest.

Consolidated consent

44. I am satisfied that a consolidation consent should be granted and that the earlier 1988 and 2014 consents should be surrendered. A consolidated consent will allow for the regulation of the whole site through the imposition of conditions which protect the amenity of the surrounding area over and above that provided for under the earlier 1988 and 2014 development consents.

The Terms of the Conditions of consent

Deferred commencement conditions

45. For the purpose of finalising the terms of the conditions of consent I will refer to the parties colour coded version of the draft conditions provided after the hearing. Where the parties are at issue about the terms of a condition the Council has recorded its version in Red and the applicants have recorded their version in Blue. I have marked this document Exhibit Z.

46. As it stands the heritage experts have essentially agreed the terms of the deferred commencement conditions which address the necessary works and other heritage matters. However there are some differences. The applicants’ version replaces the word “Council” with “consent authority” and nominates a “suitably qualified person, if required” rather than the structural engineer. These changes to the deferred commencement conditions are of no serious consequence and in my assessment are appropriate.

47. There is also no need to restrict the acoustic assessment in the terms proposed by the Council in condition 3(d). I am not approving any acoustic shielding/structure on this heritage listed site. If such a structure is required to achieve compliance with the acoustic controls mandated by the other conditions of consent then a new DA would be required for such works. I accept the applicants version of this condition

48. I am also of the opinion that condition 3(e) as suggested by the Council – mandating a future acoustic assessment in 12 months’ time is unnecessary. As discussed I am satisfied that the terms of acoustic controls in conditions 20, 21, 22, 23 and 26 as suggested by the applicant sufficiently limits all operation noise on the site to afford appropriate acoustic amenity. The breach of these conditions is a breach of the consent and able to be enforced.

49. Subject to those amendments I accept the terms of the deferred commencement conditions outlined in blue in Exhibit Z.

Other conditions

50. I have also carefully considered the parties’ competing versions of the other conditions of consent (after the commencement of the consent) in Exhibit Z and make the following comments:

• Condition 1 as drafted by the applicants accords with my judgment and should be imposed.

• Condition 2 as drafted by the Council is not necessary. The consent already clearly identifies the approved barn and farm building.

• Condition 5 concerns the timeframe for reporting about compliance with the inspections mandated by the Heritage Documents and the completion of the necessary works. The applicants, based on Mr Patch’s advice request a period of 4 years to be nominated in the consent. The Council seeks a period of 2 years. I prefer the Council’s version of the condition. This timeframe, it seems to me, is entirely reasonable in circumstances where the conservation of the heritage item is facilitated by the granting of this consent.

• For the reasons stated I agree with the planners that there should be a surrender of the earlier consents for the land. Condition 7 as drafted should be imposed.

• Condition 9 as drafted by the applicants should be imposed as it accords with condition 1. The Court cannot impose a condition which precludes any future development application for the land as suggested by the Council in its version of this condition.

• There is no planning basis, on the evidence before me, to restrict the location of booking for weddings as suggested by the Council in condition 10. It should be deleted.

• There is no planning evidence to support the imposition of condition 13 as drafted by the Council. Conditions 11 and 12 restrict the number of guests per function to 140 and permit only one function at any one time. I am satisfied with the applicants’ draft conditions in this regard which based on the evidence will assist to control any adverse amenity impacts for the surrounding area.

• Condition 23 - I accept the applicants’ version of this condition which I understood was agreed at the hearing. For the reasons stated I accept that the use of the garden for the purposes of wedding receptions and associated activities (including in a marquee, if required) was proved under the 1998 consent. There is no need to clarify the approved acoustic level of the sound system and the amplifier settings as suggested by the Council because the other acoustic conditions imposed provide sufficiently for the control of operational noise including sound systems from any approved activities on the site from any approved location.

• I do not accept as reasonable or necessary a requirement for the windows on the northern and western side of the barn to be permanently fixed or self-closing doors be installed or the other matters raised in the Council’s condition 25. I accept Mr Ropert’s evidence about noise from the barn being no worse in recent times and since its temporary approved use.

• The Council’s condition 27 should be deleted. There is no basis to restrict the use of live music which will necessarily be regulated by the other acoustic conditions imposed on the consent i.e. condition 20.

• I accept the applicants’ version of condition 28. The level of illumination was not raised as a contention in the appeal and there is no evidence to support the imposition of the condition drafted by the Council.

• With respect to condition 30 I accept the applicants’ version of the plan of management. The plan of management is incorporated as a condition of consent and it follows that it cannot be changed in any way without requisite approval from the council.

• With respect to Condition 37 I accept the applicants’ version of the condition. The additional wording in my opinion is not necessary to assist control noise impacts on the evidence in this case.

Orders

51. The Courts orders:

1. The appeal is upheld.

2. Development consent is granted to development application (DA 17/0196) to permanently use the existing barn and new farm building for the purpose of wedding receptions and associated activities at Montrose Lot 2 DP 620221, 11 Ormond Street Sutton Forest in accordance with the conditions of consent in Annexure “A”.

3. The exhibits are returned except 2, 3, G, H and K.

____________________________

Susan Dixon

Senior Commissioner of the Court

Annexure A (82.8 KB, pdf)

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Amendments

04 April 2018 - Corrections made to formatting, cover sheet and Annexure A Condition 5.

Decision last updated: 04 April 2018