So Natural Foods Australia Limited v Sutherland Shire Council

[2001] NSWLEC 188

Land and Environment Court

of New South Wales

CITATION:	So Natural Foods Australia Limited v Sutherland Shire Council [2001] NSWLEC 188
PARTIES:	APPLICANT: So Natural Foods Australia Limited RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	10967; 10868 of 2000
CORAM:	Bignold J
KEY ISSUES:	Development Application :- Development appeal - acoustical impact - 24 hour manufacturing development on adjacent residential development - Mitigating conditions appropriately imposed
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	27/11/00-29/11/00, 4/12/00, 07/02/01, 02/05/01, 13/06/01
EX TEMPORE JUDGMENT DATE :	06/13/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Craig QC SOLICITORS Cutler Hughes and Harris RESPONDENT: Mr N Newport, Barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

Matter No. 10868 and 10967 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

13 June 2001

SO NATURAL FOODS AUSTRALIA LTD

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

1. I am satisfied that the three sets of related proceedings before the Court should be adjudicated upon, substantially in accordance with the short minutes that have been prepared on behalf of the Company So Natural Foods Australia Limited and handed up to Court today.

2. The circumstances in which those minutes came into existence should be briefly noted. The concurrent hearing of the two Class 1 and related Class 4 proceedings, commenced before me at the end of November last year and continued into December, and thereafter were completed early in the new term. In the course of the final address by Mr Newport, Counsel for the Council in the proceedings, I raised the possible outcome of the development and modification appeals and the Class 4 related proceedings by way of, in effect, approvals being granted, both to the modification application and to the fresh development application for an initial period of two years, which would operate as a trial period, within which the Company would be required to carefully monitor performance, especially in terms of acoustical impacts generated from its development as it impacts upon the adjacent residential areas with a view to the consents maturing into permanent approvals subject to satisfactory compliance and monitoring. With the parties’ concurrence, I adjourned the proceedings at that point to enable the parties to explore the feasibility, and otherwise acceptability of the scheme for solution along the lines that fell from me in the course of the addresses.

3. The parties have co-operated in that enterprise and I thank them and their advisers for the result that has been produced. I should note that Mr Newport, on behalf of the Council has nonetheless maintained as his primary submission that development consent should be refused and that the modification application extending the hours of operation of the factory, should likewise be refused and that in consequence, the Council should obtain the injunctive relief claimed in the Class 4 proceedings which would have the effect of ensuring compliance with the historical approvals obtained by So Natural Foods from Sutherland Council over the past couple of decades but significantly limiting their manufacturing operations to the expressly limited hours in the day. This outcome would not allow 24 hour operation such as the Company desires, and such as the Company has been utilising at its premises, for the past 15 or 16 years, with the knowledge of the Council of that fact.

4. In making the suggestion that I did, it necessarily followed, as I think I indicated on the occasion, that subject to a satisfactory response by So Natural Foods to the scheme that I was suggesting, I had not been persuaded by the Council’s case that development consent should be refused and modification approval withheld.

5. Since the matters were last before me, the parties have obviously spent a lot of time in examining the feasibility and acceptability of the scheme for possible solution that I had suggested. When the matter returned to Court today, Mr Craig, QC, on behalf of the So Natural Foods, has handed up draft Short Minutes of Order in all three proceedings. In the development appeal and the modification application appeal, the Short Minutes reflect decisions favourable to the Company Applicant in as much as development consent and modification approval are to be granted subject to a number of conditions. Most of those conditions deal with the containment of acoustical impact generated from the 24 hour operation of the Company’s factory premises and it is to be noted that the acoustical conditions were essentially agreed in the course of the proceedings with the indispensable assistance of the three acoustical experts, who gave evidence in the proceedings, but more significantly, who participated in a number of joint expert conferences leading to providing reports to the Court which, at the end of the day produced, in my opinion a very satisfactory outcome concerning acoustical impact being also a matter acknowledged by all acoustical experts (including the expert, Mr Atkin, retained by the Council).

6. Further conditions have been included in the Short Minutes to both the development consent and the modification approval to give effect (as Mr Craig QC, on behalf of the Company, has aptly said) to the objectives of the scheme which I had suggested on the last occasion. That scheme, in terms, was ultimately not embraced by the Company for reasons of possible prejudice to the Company’s standing as a public Company, with consequences possibly adverse to its shareholders, its capital and to its lenders. I appreciate these legitimate concerns and I accept that the Board of Directors of the Company seriously considered the proposal which I had suggested for their adoption. More importantly, for present purposes, I note that I am entirely satisfied that the alternative scheme that the Company has proffered for the outcome in these proceedings, is in the spirit and intendment of the scheme that I had suggested, and is a scheme which, in my judgment, will adequately secure a result for the controlled appropriate co-existence of industrial premises, situate cheek by jowl with residentially zoned and developed land, in this particular part of Sutherland.

7. The additional conditions that have been incorporated in the Short Minutes of Orders prepared on behalf of the Company reflect those additional safeguards to ensure the maintenance of the most appropriate and meaningful local community liaison between the Company and the neighbouring residents who are likely to be most affected by the acoustical impact of the Company’s activities. The scheme now tendered, is an intelligent model (which no doubt is modelled on other similar schemes where consent authorities, or the Court in the place of the consent authority, is of the view that more than usual detailed attention is necessary to achieve the fair balance in the peaceful coexistence of disparate developments, or land uses) whereby meaningful community liaison supported by appropriate measures to ensure the attainment of such worthy objectives, is realistically achievable.

8. The conditions that have been drafted on behalf of the Company will be adopted together with the amendments suggested to them that were made by the Council in the course of today’s proceedings. The only exception to those suggested amendments is that I accept Mr Craig’s submission that the addition of the word “at least” in Condition 10A (and its counterpart in Condition 12A) would not achieve any useful purpose at best, and at worst would obscure the true nature and extent of the obligation imposed.

9. It was in the light of the foregoing circumstances, and with the benefit of a very comprehensive hearing at which there was, I am pleased to say, maximum assistance provided by the co-operative enterprise of the acoustical experts, that I am of the opinion that the modification application and the development application should be granted, subject to the conditions that I have mentioned, and I so order.