Sahade v Waverley Municipal Council
[2009] NSWLEC 1234
•26 June 2009
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
Sahade v Waverley Municipal Council [2009] NSWLEC 1234
This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:
APPLICANT
Anthony Sahade
RESPONDENT
Waverley Municipal Council
FILE NUMBER(S):
10074 of 2009
CATCHWORDS:
MODIFICATION APPLICATION :- conditions relating to amplified music - noise impact on adjoining properties
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
CORAM:
Brown C
DATES OF HEARING:
26 June 2009
EX TEMPORE DATE:
26 June 2009
LEGAL REPRESENTATIVES
APPLICANT
Mr M Sahade, barrister
RESPONDENT
Mr M Staunton, barrister
SOLICITORS
Sparke Helmore
JUDGMENT:
Appeal No 10074 of 2009
Annexure A
Conditions of development consent for car wash and café at 57 - 59 Curlewis Street, Bondi
Compliance in all respects with Plan Nos DA 01-DA 04 drawn by Geoform Design dated 29/11/2002, Stormwater Drainage Concept Plan drawings H02-H04, dated 13/11/02 drawn by Geoform Design, except where otherwise amended by the following specific conditions of consent.
The width of the vehicle crossings shall be limited to 6 metres, with sign posting to be adjusted at the applicant’s expense
There shall be no Resident Parking Permits issued in relation to the operation of the site
There shall be no queuing of vehicles beyond the building alignment on entry to the site
Eight log posts shall be installed on the footpath area, two on each side of each vehicle crossing at the applicant’s expense.
Deleted by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009.
Deleted by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009.
Deleted by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009.
That the hours of operation shall be limited to 7am to7pm Monday to Friday, 8am to 6pm Saturday and Sunday and public holidays.
10. That secure posts shall be placed at the entrance and exit to the site after hours to prevent vehicle access and a back-to-base alarm system installed alerting of any presence on the site.
11. That any proposed signage shall be the subject of a separate development application
12. The finished level at the property boundary shall match the level of the existing concrete vehicle crossing
13. Telstra should be contacted regarding their requirements for their inspection pit which will be affected in providing vehicular access to the property
14. The existing vehicle crossing is to be modified to provide access to the proposed parking space. A separate application is required for the modification of this vehicle crossing with all work to be carried out with the approval of, and in accordance with, the requirements of the Manager Technical Services.
15. All work outside the property boundary is to be carried out with the approval of, and in accordance with the requirements of the Manager Technical Services, at the applicants expense
16. All stormwater from the site is to be disposed of in accordance with Council Stormwater Policy and this may involve on Site Detention (OSD).
17. The new junction pit in the street shall be a 600mm by 900mm pit with class D, bicycle safe grates and a 2.4m long overall length extended kerb inlet.
18. Adequate holding facilities shall be constructed for the storage of new and waste oils and other bulk liquids in accordance with AS 1940-1993 before commencement of the use.
19. All proprietors of the business being responsible to ensure that all liquid wastes associated with the business are disposed of in accordance with the Environment Protection Authority's Waste Tracking Guidelines as described in the Environment Protection Authority's Environmental Guidelines; Assessment, Classification and Management of Liquid and Non Liquid Wastes (1999) and The Protection of the Environment Operations Act 1997 (NSW).
20. Sufficient supplies of appropriate absorbent materials and /or other spill clean up equipment shall be kept on site to recover any liquid spillage. Liquid spills being cleaned up using dry methods only.
21. An Emergency Response Management Plan shall be prepared and submitted to Council's satisfaction before the issue of the Occupation Certificate. The Plan shall include the following:
list of chemicals and maximum quantities to be stored at the site;
identification of potentially hazardous situations;
procedure for incident reporting;
details of spill stations and signage;
containment and clean-up facilities and procedures; and
the roles of all staff in the Plan and details of staff training.
22. Sign(s) shall be displayed and maintained adjacent to all stormwater drains on the premises, clearly indicating ‘Clean water only - NO wastewater or rubbish’.
23. A Trade Waste Agreement shall be obtained from Sydney Water prior to the discharge of trade wastewater to the sewer system. Trade wastewater is defined as ‘discharge water containing any substance produced through industrial or commercial activities or operation on the premises’. Separator systems are to be bunded and where systems are placed outside, they are to be roofed to ensure that no rainwater can enter the bund.
24. Liquid and solid wastes generated on the site shall be collected, transported and disposed of in accordance with the Protection of the Environment Operations Act 1997. Records shall be kept of all waste disposal from the site.
25. All wastewater and stormwater treatment devices (including drainage systems, sumps and traps) shall be regularly maintained in order to remain effective. All solid and liquid wastes collected from the device must be disposed of in accordance with the Protection of the Environment Operations Act, 1997.
26. Washing of vehicles only shall be conducted in a car washbay, which is roofed and bunded to exclude rainwater. All waste water from car washing being discharged to the sewer under a Trade Waste Agreement from Sydney Water. Alternative water management and disposal options may be possible where water is recycled, minimised or re-used on the site. Any such option is to comply with:
Council’s Stormwater Management Policy
Environment Protection Authority's Environment Protection Manual for authorised Officers: Technical Section (Car Washing Waste)Environment Protection Authority's Managing Urban Stormwater: treatment techniques
27. Servicing, detailing and repairs of vehicles or vehicle parts shall be conducted in a covered, bunded area. Vehicles awaiting repair, under repair or awaiting delivery, shall not be stored, parked, or otherwise permitted to stand in a public street. All such vehicles shall be accommodated within the premises.
28. Covered, bunded work areas, including workshops and lube bays, shall be graded into collection sumps and/or grated drains so that surface effluent generated within the workshop area is directed into a dedicated drainage system for treatment, storage and disposal. If liquid wastes are to be disposed of to the sewer, a Trade Waste Agreement from Sydney Water is to be obtained. A copy of the licence is to be forwarded to Council as proof of appropriate disposal. Alternatively, disposal of waste is to be conducted in accordance with the Environment Protection Authority's Waste Tracking Guidelines as described in the Environment Protection Authority's Waste Regulation under The Protection of the Environment Operations Act 1997 (NSW).
29. The open parking area(s) must drain to a stormwater treatment device capable of removing litter, oil, grease and sediment prior to discharge to the stormwater system, complying with:
Council’s Stormwater Management Policy;
Environment Protection Authority's Environment Protection Manual for Authorised Officers: Technical Section (Stormwater First Flush Pollution); and
Environment Protection Authority's Managing Urban Stormwater: treatment techniques.
30. The stormwater treatment device(s) shall be maintained at all times to Council's satisfaction.
31. A car wash bay shall be installed for the disposal of waste water. All waste water from car washing shall be discharged to sewer under a Trade Waste Agreement from Sydney Water. The washbay must be roofed and bunded to exclude rainwater installed in the open.
32. Alternative water management and disposal options may be possible where water is recycled, minimised or re-used on the site. Any such option is to comply with: Council’s Stormwater Management Policy;Environment Protection Authority's Environment Protection Manual for Authorised Officers: Technical Section (Car Washing Waste); and
Environment Protection Authority's Managing Urban Stormwater: treatment techniques.
33. The operation of the premises being conducted in a manner which does not pollute waters as defined by the Protection of the Environment Operations Act 1997.
34. A Soil and Water Management Plan shall be submitted to Council's satisfaction before the issue of a Construction Certificate. The Soil and Water Management plan must be prepared and implemented by the person(s) supervising the works on site and must include details of the controls to be installed on the development site to prevent erosion and sedimentation of stormwater drains.
NOTE: 1.
The plan should include the slope of the land, protection of street gutters and water channels, location of washdown and storage of material areas.
NOTE: 2.
For guidance on the preparation of the Plan refer to the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation Councils. Copies of the Guidelines are available from Council.
35. Throughout the construction period, Council’s warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council.
36. Site water discharged to Council’s stormwater system must have a suspended solid level of less than 50 mg/L. This may require treatment such as transfer to settling ponds, use of approved chemicals to settle out sediment or passing the contaminated water through a treatment device. Site water may also be disposed of through the services of a licensed liquid waste transporter.
37. Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
38. Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footways or in any other locations which could lead to the discharge of materials into the stormwater drainage system.
39. Stormwater from roof areas shall be linked via a temporary downpipe to Council’s stormwater system immediately after completion of the roof area. Inspection of the building frame is not to occur until this is completed.
40. A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed in accordance with the approved site Soil & Water Management Plan before the commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street. The device being maintained at all times to Council's satisfaction.
41. A Waste Management Plan shall be submitted to the Principal Certifying Authority for approval in accordance with Waverley Development Control Plan No. 27. The plan must be submitted and approved prior to commencement of works. The approved Waste Management Plan for the site must be complied with at all times during construction. The builder / construction company shall be provided with at least one copy of the waste management plan.
42. In addition to the requirements as outlined in Development Control Plan No. 27, waste bin and recycling bin storage areas shall be contained in a ventilated roofed area. The floor of the waste and recycling area shall be drained to a central point for drainage to Sydney Water. Where wastewater can escape to the stormwater system a bund must be erected to contain the wastewater on site. A copy of the Trade Waste licence is to forwarded to Council.
43. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.
44. The building work must not be commenced until:
a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and
b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of the Schedule 1 of the Regulations; and
c) Council is given at least two days notice in writing of intention to commence the building works.
The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principal Certifying Authority.
Should Council be appointed the Principal Certifying Authority, the applicant/owner is to pay an inspection fee in accordance with Council's Pricing Policy prior to commencement of any works.
45. All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without having obtained prior approval. Applications or enquires for the occupation of Council's footpath can be obtained from Council's Technical Services Section.
46. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
47. The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work ; or
b) the name and permit number of the owner/builder who intends to do the work; and
c) any change to these arrangements for doing of the work.
48. The floor and wall surfaces of the proposed bathrooms and laundries being protected against water in accordance with the Building Code of Australia.
Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.
49. Any mechanical ventilation related to the café shall be the subject of a separate development application.
50. A deposit of guarantee satisfactory to Council for the amount of $5,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
Note: This deposit or guarantee must be submitted before a construction certificate is issued. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property, will be refunded after satisfactory completion of the building work.
51. The large existing Banksia integrifolia tree is to be retained and three more Banksia are to be planted at 6 metre intervals to the west of this tree and one banksia to the east of the driveway entrance. Each tree must be a minimum size of 75 litres and a minimum height of 2.5 metres at planting. Each planting square must incorporate a root control barrier. The barrier must be Root Director 650 and is to be installed as per manufacturers instructions.
52. The existing footpath outside the site between the two driveway crossings is to be reconstructed at the applicant’s expense in accordance with the requirements of the Manager Technical Services. A separate application is required with all work to be carried out with the approval of, and in accordance with, the requirements of the Manager Technical Services.
53. Inadequate details have been provided in relation to the fitout of the proposed café/pavilion. In this regard a separate application is required to be submitted.
54. Inadequate details have been provided in relation to the proposed mechanical ventilation systems for the café/pavilion. In this regard a separate application is to be provided.
55. Deleted by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009.
56. Deleted by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009.
57. All advertising signage is to be turned off as with any other external lighting at closing time.
58. Internal lighting can remain on after closing time for security purpose provided that it does not cause any light spill into adjacent residential properties.
59. A landscape plan be submitted for the site, in particular for the front elevation and entry. The applicant is also requested to investigate the possibility of planting suitable species of trees and climbers at the rear of the site to soften the boundary.
Conditions 60-64 added by Land & Environment Court in proceedings no. 10074 of 2009 on 26 June 2009
60. By no later than 31 August 2009 the following works and procedures shall be implemented and thereafter maintained for the life of the development:
(a) if vacuuming is required at the exit of the carwash either quiet units must be used or a separate unit located in the building at the western corner of the site with an external sound attenuated hose shall be used.
(b) all pipe work is to be vibration isolated from the building structure to ensure sufficient static deflection to prevent the transmission of vibration to the structure;
(c) the spray system which uses the gurney type hand gun shall be isolated from the building structure using vibration isolation plus flexible couplings so as to reduce noise radiated from the structure;
(d) signage shall be placed on either side of the partition outside the staff amenities building requesting noise be kept to a minimum so as to respect the neighbours.
(e) the use of power tools for buffing and polishing cars may only be carried out in the most southern laneway of the vacuum area;
(f) a management plan shall be provided to and approved by Council which shall include the following matters:
(a) an induction process to make employees aware of the need to minimise noise impact on adjoining residences;
(b) the switching off of all external plant (except the submersible pump) at the close of business;
(c) the placement of signage around the premises advising that noise should be kept to a minimum to avoid disturbing neighbours;
(d) staff are not to use or congregate upon the steps to the west of the site which are the entry to 61 Curlewis Street;
(e) staff are not to play cricket or other games on the carwash driveways or forecourt areas;
(f) the switching off and non use of customer vehicle sound systems when in the control of the operator;
(g) An appropriate complaints procedure.
61. The emission of music from equipment installed on the premises shall not exceed 5dBA below background at the residential boundary or on balconies or outside windows to upper level habitable rooms.
62. The sound system shall be fitted with an rms limiter that is not accessible to staff and shall have time clocks set to ensure that the sound system only operates (such time clocks shall be sealed):
(a) internally during approved trading hours; and
(b) externally between between 8am-7pm Monday to Saturday and 10am-6pm Sundays.
63. LAeq,15min noise Levels from the premises shall not exceed background + 5dBA when measured at the residential boundary or on balconies or outside windows to upper level habitable rooms. The noise from activities on the premises shall be corrected in accordance with DECC guidelines in relation to any modifying factors (such as the playing of music).
Acoustic Compliance Testing
(a) Subject to paragraph (f) and (h) below acoustic compliance testing to assess noise emission from the premises (to encompass the approved trading hours) in accordance with the conditions of consent (both operational noise (including music) and mechanical plant noise) shall be undertaken on two occasions in accordance with the following provisions of this condition.
(b) The testing shall take place on two separate occasions within September 2009 one of which must be a weekend morning after the works and procedures required by condition 60 have been implemented.
(c) The compliance testing is to be carried out at the applicant’s expense and is to be undertaken by a suitably qualified acoustic consultant or consulting engineer (approved by Council acting reasonably) who is independent of any acoustic engineers or firms involved in the development application or any modification of it or in the supervision of the works at the subject premises.
(d) The compliance testing shall be undertaken without notice to the operator but with prior written notice to the Council of the time and date upon which the acoustic compliance testing is to take place. The Council or its consultant may attend and monitor the acoustic compliance testing. The applicant’s consultant may attend the monitoring provided that it is a term of engagement that such consultant does not advise the operator as to when the testing is to be undertaken.
(e) A compliance report is to be provided to the Council within 7 days of the testing. The report shall provide details of when the testing was undertaken and by whom and details of the number of cars in the carwash and traffic counts along Curlewis Street at the time the testing was undertaken and details of what mechanical plant and music was in operation. The report must specify whether there is compliance or non compliance and any recommendations to be implemented to achieve compliance.
(f) If there are any matters of non-compliance with the conditions of consent, the carwash is required to implement any recommendations of the compliance report within 30 days of receipt of that report. A further compliance test shall be undertaken (in accordance with (d) above) to assess the effectiveness of the additional noise control measures and that report is to be provided to Council within 10 days of the further test.
(g) If there is non-compliance with conditions of consent then the emission of music from equipment installed on the premises shall cease until such time as the consultant who prepared the compliance report (or some other suitably qualified consultant approved by Council acting reasonably) certifies that the recommendations in the compliance report have been implemented.
(h) Conditions (e), (f) and (g) continue to apply until such time as the acoustic compliance testing and the resulting compliance report certify that there is no non-compliance with conditions of consent.
______________
G T Brown
Commissioner of the Court-
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
26 June 2009
09/10074 Anthony Sahade v Waverley Council
JUDGMENT
COMMISSIONER: This is an appeal against an application to modify conditions of consent relating to amplified music for an approval of a car wash and associated café (DA-951/2002) by Waverley Municipal Council on 7 May 2003 at 57-59 Curlewis Street, Bondi. The car wash and café are currently operating.
The conditions in dispute are:
55. To reduce noise impact to surrounding properties, no amplified music is to be played on the site;
56. The prohibition of any amplified music.
The issue of amplified music is complicated by condition 8(b) of the 2003 approval. This condition states:
8. In the event that the neighbours residing in apartments on the eastern, southern or western sides of the proposed development are subject to unacceptable noise impact as a result of activities in the car wash, then the owners or operators shall implement one or more of the following additional noise control measures as directed:
(a)….
(b) Install supplementary controls on any PA or amplified music system. The supplementary controls shall include a compression limiter to control the level of sound so that it is only just detectable at the adjacent residential boundaries. The just detectable criterion is defined on the basis that the peak component level associated with such amplified speech or music does not exceed the prevailing background sound level (in the absence of the car wash or its activities) by no more than 5 dB(A).The council has received a number of complaints from residents who live in residential flat buildings surrounding the car wash. When the modification application was notified, the council received 32 letters of objection. These objections related to the unacceptable noise levels from the amplified music. The music was considered by the residents to disturb the peace and quiet of the area.
The impact of the amplified music has been the subject of acoustical reports from Mr Stephen Cooper for the applicant and Mr Neil Gross for the council. Section 34 Conciliation Conferences were held on 17 April 2009 and 12 May 2009 although the conferences were ultimately terminated as no agreement was reached.
At the commencement of these proceedings, the parties indicated that future discussions over the noise conditions relating could potentially result in an agreement. On this basis, the parties were allowed further time to discuss the outstanding issues.
When the parties returned to Court, significant changes were made to not only the conditions related to amplified music in dispute but noise in general from the site. Mr Staunton for the council submitted that if the applicant accepted the conditions, then there would be no basis to oppose the modification application, as the proposed conditions will provide a better acoustic environment for the residents than is currently available through the existing conditions of consent. Mr Staunton submitted that the existing conditions of consent have no specific overall noise goals for the site.
Mr Sahade for the applicant indicated to the Court that the proposed conditions were acceptable to the applicant.
The agreed conditions, in brief, provide for
the deletion of existing conditions 6, 7, 8, 55 and 56,
specific controls on vacuuming, vibration from pipe work, the spray system, signage and the use of power tools (new conditions 60(a) to 60(g)),
a management plan to address induction of employees, additional signage, staff activities, customer vehicle sound systems, and a complaints procedure (new condition 60(f)),
music at residential boundaries, balconies or outside windows is not to exceed 5dBA below background levels; automatic cut off for sound systems and limits on times for its use (new condition 62),
overall noise goals for the site (new condition 63) and
a compliance testing regime (new condition 64).
The new conditions have been considered by both acoustic experts, Mr Cooper and Mr Gross and were considered appropriate for the site.
On this basis, I am satisfied that the modification of the consent, as agreed by the parties, is acceptable and will provide greater acoustic certainty for the adjoining residential properties than currently exists under the sometimes confusing terms of the existing consent.
In my view, there is no valid reason why the modification application should not be supported on the agreed terms.
Consequently, the orders of the Court are:
1. The appeal is upheld.
2.The s 96(1) application to modify development consent DA951/2002 granted by the council on 7 May 2003 for the use of 57-59 Curlewis Street, Bondi for a car wash is modified as set out in Annexure A.
3. The exhibits are returned with the exception of Exhibit
___________________
G T Brown
Commissioner of the Courtajl
AMENDMENTS:
16/07/2009 - Conditions added - Paragraph(s) 1 to 64
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