Russell v Bega Valley Shire Council

[2013] NSWLEC 1012

Land and Environment Court

New South Wales

Medium Neutral Citation:

Russell v Bega Valley Shire Council [2013] NSWLEC 1012

Hearing dates:

21 January 2013

Decision date:

23 January 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is dismissed.

2. Development Application 2010.502 for a scrap metal recycling facility, including the erection of a shed at 27 D'Arcy Lane, Jellat Jellat is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

Catchwords:

DEVELOPMENT APPLICATION: use of site for scrap metal recycling facility, including the erection of a shed - visual impact - noise - environmental impacts

Legislation Cited:

Bega Valley Local Environmental Plan 2002
Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

Laidley and Ellen Russell (Applicants)
Bega Valley Shire Council (Respondent)

Representation:

Ms L-M Saw, barrister (Applicants)
Mr M McMahon, solicitor (Respondent)
Mr R Creighton, agent (Applicants)
M. E. McMahon & Associates (Respondent)

File Number(s):

11072 of 2012

Judgment

1. COMMISSIONER: This appeal relates to the refusal by Bega Valley Shire Council of Development Application 2010.502 for a scrap metal recycling facility, including the erection of a shed, at 27 D'Arcy Lane, Jellat Jellat, east of Bega (the site).

1. The hearing was conducted as an On Site hearing.

1. The proposal involves the collection, temporary and short-term storage, separation, sorting, weighing, packaging, palletising and preparing for transport of scrap metal materials to metropolitan recycling facilities. Materials to be recycled include:

• ferrous and non-ferrous materials,
• firewood, and
• motor vehicles.

1. A shed measuring 29 m by 12 m and 7.8 m in height is to be constructed to provide undercover work space for dismantling and sorting during bad weather and also to store material pending delivery off site. The proposed work area is to be reshaped by lowering and levelling the work area by approximately 1.5 m. Additional earth banking, vegetation and a 3 m high fence are to be provided to provide screening from adjoining properties and public areas.

1. It is anticipated that there will be a maximum of 10 vehicles/truck movements per day, including heavy vehicles, 5 tonne trucks and vehicles from the one full-time and two part-time employees but not including the operators/owners of the site. Hours of operation are to be 7 a.m. to 5 p.m. Monday to Friday.

The site

1. The site is Lot 3 in DP 735201. It is irregular in shape with an area of 3.825 ha. The site contains an existing dwelling with carport, an old cottage, garage, sheds, piggery and concrete silos. The site is currently used as a scrap metal recycling facility without approval although the proposed development seeks a number of alterations to the existing operation. An earthmoving equipment business operates from the site and will continue to operate in conjunction with the proposed scrap metal recycling facility.

1. The site forms part of a subdivision containing some 15 lots, of different sizes, predominantly used for rural residential purposes, located on a knoll above the floodplain with access from D'Arcy Lane. The lots have elevated views over the floodplain, which is used for agricultural purposes.

Relevant planning controls

1. The site is located within the Rural 1(a)(General Rural Zone) under Bega Valley Local Environmental Plan 2002 (LEP 2002). The proposed use is permissible with consent in this zone, being defined as a "junkyard". Clause 8(3) provides that:

(3) Consent must not be granted to development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the zone as are relevant to the proposal and is satisfied that the development is consistent with those objectives.

1. The relevant zone objectives are:

(b) to encourage other forms of development, including tourism, that are compatible with agricultural activities and do not create undesirable environmental and cultural impacts,

.

(d) to maintain the scenic amenity and landscape quality of the area,

.

(g) to promote the economic provision of services compatible with the nature and intensity of development and the character of the area,

(h) to ensure that development and management of the land has minimal impact on water quality and environmental flows of receiving waters,

(i) to maintain significant features of natural and cultural heritage.

1. Clause 65 provides general principles for development and use of land and buildings. The clause provides that before granting consent, consideration shall be given to the relevant provisions in the clause. The relevant provisions are:

(a) the impact of that development on:

(i) the water quality of waterbodies, and

.

(v) the topography and setting of the land, and

(vi) the streetscape character of the locality, and

(vii) the scale and design of neighbouring development, and

(viii) significant views enjoyed from parks, reserves, roadways, footpaths and other public places, and

.

(xv) any measures necessary to mitigate any of these impacts,

(b) the cumulative impact on the environment of:

(i) the development, and

1. The site is also subject to draft Bega Valley Local Environmental Plan 2012 (the draft LEP) having been advertised although the application would be captured by the savings provisions in cl 1.8A. The council raised no issue with the provisions in the draft LEP.

The evidence

1. Expert evidence for the applicant was provided by Mr Kerry Nash, a town planner.

1. Expert evidence for the council was provided by Ms Cecily Hancock, a town planner employed by the council and Mr Jonathon Pyke, a building services co-ordinator also employed by the council. A number of residents of D'Arcy Lane also provided evidence and supported the concerns raised by the council. Some nearby properties in D'Arcy Lane were inspected on the site inspection to consider the issues of visual impact and potential noise problems.

1. The contentions raised by the council centre on the visual impacts from nearby properties in D'Arcy Lane and from Tathra Road, potential noise impacts and environmental impacts from run off from the site to protected wetlands on the floodplain. The applicant maintains that the visual impacts from nearby properties and from Tathra Road are addressed through the earth mounding, fencing and proposed vegetation, potential noise impacts are addressed by the acoustic report submitted with the development application and run off is controlled by the rearrangement of the work area.

Visual impact

1. I agree with the conclusions of Ms Hancock that the visual impact of the proposal is unacceptable. I do not accept that the proposed ameliorative measures of fencing, earth mounding and additional planting are a suitable response to visual impact created by the material to be stored on the site. In this case, the ameliorative measures are themselves, a source of unacceptable visual impact.

1. I am not satisfied that the proposed vegetation that is designed to screen the proposed 3 m high fence and stored materials can be relied upon to achieve its intended purpose as it is contingent on regular maintenance and favourable weather conditions for survival. In any event, any beneficial screening would take many years to establish, even if optimal conditions existed.

1. The fence, of undefined materials, would be clearly visible from most locations around the site including D'Arcy Lane, properties in D'Arcy Lane and Tathra Road. The fence would be seen as a discordant element in a predominantly rural and rural/residential environment. While having less visual impact than the fencing, the proposed 3 m high earth mounding nonetheless alters the topography of a visually significant rural landscape. I also accept the resident evidence that materials being stored on the site may also be visible over the proposed earth mounding and fencing from the properties higher in elevation in D'Arcy Lane.

1. With the benefit of the site inspection, I do not accept that it could reasonably be argued that the proposed development would be compatible with the open rural/agricultural character of the area of the floodplain or the sparse rural/residential density of the D'Arcy Lane precinct. The extent and impact of the ameliorative measures legitimately raises the question of the suitability of the site for the proposed development. In my view, the proposed development would clearly be inconsistent with the local area, given its rural or rural/residential character, even though it may be a permissible use within the zone.

1. For these reasons, I find that the proposed development is inconsistent with the zone objectives (b),(d),(g) and (i) and as such development consent must be refused

1. Having considered the matters in cl 65(a)(v),(vi),(vii), (viii) and (xv), I also find that the proposed development is unacceptable and the conflict with these matters is sufficient to warrant the refusal of the application for these matters alone.

Noise

1. I agree with the conclusions of Mr Pyke that the noise impacts of the proposal are unacceptable. Even though the applicant provided a noise impact study by Noise & Sound Services, it is inadequate in properly assessing the noise impacts from the proposed development for a number of reasons. First, it does not take into account the reasonable likelihood of a dwelling be constructed on the adjoining Lot 101. There was no disagreement that Lot 101 has a dwelling entitlement although it is currently vacant. The evidence of the owner was that the site was purchased for the erection of a dwelling however this had not proceeded because of the noise associated with the illegal activities on the site. The evidence of Ms Hancock was that Lot 101 is largely subject to inundation and that the available area for a dwelling is limited to an area adjoining the site. In my view, it is clearly unacceptable to allow the proposed development on the site without having regard to the likely future use of the adjoining property.

1. Second, and as stated by Mr Pyke, the applicant has failed to respond to the reasonable request to provide supplementary acoustic information that takes into account the cumulative impact of the proposed development and the existing earth works operation at the site. I agree with Mr Pyke that the acoustic assessment of the proposed development should include noise generated by the existing earth works operation.

1. For these reasons, I find that the proposed development is inconsistent with the zone objective (b) and as such development consent must be refused

1. Having considered the matters in cl 65(a) vii), I also find that the proposed development is unacceptable and the conflict with this matter is sufficient to warrant the refusal of the application for these matters alone.

Environmental impacts

1. The local residents expressed concerned that the scrap metal recycling facility would likely generate material that could contain contaminants which could potentially flow into nearby dams and protected wetlands on the floodplain. I note that details have been provided by the applicant to show that any contaminants would be contained on-site in holding ponds however the information is largely generic. Given the likelihood of contaminants being located on the site due to the nature of the operation and the existence of protected wetlands within the catchment, I would expect more detailed information on matters such as the likely types of contaminants, the capacity of any holding ponds and the ongoing maintenance of these ponds.

1. If development consent was to be granted, I accept that the additional information could be provided as a deferred commencement condition.

Orders

1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application 2010.502 for a scrap metal recycling facility, including the erection of a shed at 27 D'Arcy Lane, Jellat Jellat is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

___________

G T Brown

Commissioner of the Court

Decision last updated: 24 January 2013