Starr v Hawkesbury City Council

[2005] NSWLEC 487

Land and Environment Court

of New South Wales

CITATION:

Starr v Hawkesbury City Council [2005] NSWLEC 487

PARTIES:

Applicant:
R & L Starr Architects

Respondent:
Hawkesbury City Council

FILE NUMBER(S):

10411 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Waste Disposal :- noise disturbance
effluent disposal

DATES OF HEARING:

24/11/2004, 24/01/2005, 25/01/2005, 09/02/2005 and 05/09/2005

 
DATE OF JUDGMENT: 

09/08/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr I Pickles, barrister instructed by Mr J Chapman of Fisher Chapman

Mr C Leggat, barrister instructed by Mrs L Finn of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Roseth SC

8 September 2005

10411 of 2004 R L Starr Architects v Hawkesbury City Council

1 Senior Commissioner : This is an appeal against the deemed refusal of a development application in respect of land at 102 Peel Parade, Kurrajong, to construct

· a 48- room motel in six separate two-storey buildings,
· a golf clubhouse and conference/function centre,
· tennis courts,
· a golf pro-shop
· associated parking
· water supply system,
· sewerage treatment plant (STP) and associated effluent disposal system, and
· landscaping.

The site

2 The site is 41 ha, located between the ridge followed by Comleroy Road and the eastern face of the Blue Mountains escarpment. It has recently been developed for a nine-hole golf course, a manager’s residence, a temporary golf pro-shop and car parking. It also accommodates several dams and a sewage treatment plant that services the rural residential allotments surrounding it. To the north, east and south the site adjoins existing rural and rural/residential properties ranging from 0.5 to 6 ha.

3 The views to and from the site are rural in character.

The proposal and its history

4 The applicant proposes to construct a 48-room motel, a clubhouse and conference/function centre, a pro-shop, and associated parking. It proposes a STP to service the new development. It proposes to dispose of the effluent by spraying it on the golf course, with provision for a dedicated area for effluent disposal in case the golf course ceases to function. It proposes to collect water from roofs and the parking area and to store it in ten tanks, each with a capacity of 110kl.

5 The applicant lodged the amended development application in December 2003. Following the submission of further material, the council notified the application to nearby property owners and, in response, received eleven objections. The appeal first came to the Court on 24 November 2004 as a request for consent orders. However, shortly before the hearing the council withdrew its agreement to consent orders, on the basis that it was no longer satisfied with the adequacy of the applicant’s expert reports on effluent disposal and noise impact. It offered to carry the full cost of Court-appointed experts on these two topics.

6 The Court subsequently appointed Dr R Patterson as the expert on water management, and Mr L Challis on noise impact. The hearing of the appeal continued on 24 and 25 January 2005. On 9 February 2005 the Court read its findings into the record. The applicant submitted a revised proposal, which was the subject of the last day of hearing on 5 September 2005.

Relevant planning instruments

7 The Hawkesbury Local Environmental Plan 1989 (the LEP) zones this site Rural C1, a zone set aside primarily for rural residential living. Objective (e) of the zone is “ to ensure that development maintains the rural character of the locality and to minimise disturbance to the landscape through clearing, earthworks and access roads”.

The issues

8 The council submitted a Statement of Issues containing twelve issues. However, following the reports by the Court-appointed experts, the issues were reduced to the following:

· Whether the noise impact of the proposed clubhouse and restaurant is acceptable?
· Whether the plans provide adequate detail of the proposed effluent disposal?
· Whether the applicant should construct a footpath along a section of Peel Parade?

9 The objectors raised an additional concern, namely whether the proposal is consistent with the zone objective of maintaining the rural character of the locality. The council did not support this issue.

The objectors’ evidence

10 The Court heard the evidence of Mr H Urquhart of 100 Peel Parade, and of Mr G Pagnan of 11 Linksview Place. Both objected to the proposal on the same grounds as the council. In addition, Mr Pagnan said that in his view the development was too bulky to be consistent with the zone objective of rural character for the area.

Consistency with zone objectives

11 There was no expert evidence before the Court on this issue. I understand that Mr G Falson, a consultant planner engaged by the council in these proceedings, accepted that the proposal was consistent with the zone objectives, though there was no evidence from him to this effect.

12 In the absence of expert evidence, the applicant’s advocate, Mr I Pickles, dealt with the matter in submissions. He pointed out that each of the proposed six motel buildings was consistent with the scale of the houses on the rural residential allotments around the golf course. I do not think that this is a valid comparison, since those houses are much further apart than the six motel buildings and they are not adjoined by car parks, each for nine cars.

13 Whatever the outcome of the assessment of this proposal’s impact on the rural character of the locality may turn out to be, it appears that the council has not carried out an assessment. I note that a drawing showing the seven proposed buildings and water tanks and a landscape plan were prepared only for the second day of the hearing, so Mr Falson had no opportunity to consider them. Yet, it was a matter raised by an objector. Even if at the hearing on 24 November 2004 the council had continued with its intention of seeking consent orders, the Court would have required a response to issues raised by objectors.

14 I am inclined to think that the bulk and scale of the proposal is just on the right side of the borderline of what is acceptable in a rural environment. The buildings, while not big themselves, are close together. The landscaping therefore becomes all-important, as it should soften, and preferably dominate, the long line of buildings. I note that the landscape plan, which came to the Court too late to allow comment by the council, proposes 5m as the maximum height for trees and that those trees are deciduous. The trees are therefore lower than the buildings and they are without leaves for part of the year.

15 Because of a lack of evidence I cannot come to a firm conclusion on this question. My tentative conclusion is that the buildings could be made to fit into a rural environment, provided the landscaping around them is sufficiently dominant and compatible with the vegetation endemic to the area.

Noise impact

16 The Court heard the evidence of Mr L Challis, an acoustic consultant. The evidence may be summarised as follows:

• The locality is very quiet at night, quieter than most residential areas.
• To achieve an acceptable level of noise impact from the clubhouse and conference/function centre, it is necessary to impose conditions on the construction and management of the facility. The applicant should have prepared a plan of management incorporating, among other things:
• The clubhouse restaurant to cease operation by 10 pm. All staff must leave by 10.30 pm.
• Entertainment is to be restricted to activities that do not generate internal noise levels in excess of 95dB(A).
• Patrons must not go on the outdoor terraces while there is amplified music playing inside. During those times all access doors must be kept closed.
• Persons using the outdoor terraces shall be cautioned against speaking loudly. Suitable notices are to be displayed.
• Deliveries are restricted to between 7 am and 5 pm.

(The above requirements are a paraphrase of Mr Challis’ suggestions, which were more technically expressed.)

17 Mr Pickles re-drafted the conditions suggested by Mr Challis in a form that was acceptable to the applicant. The closing time suggested in his version was midnight, though this was later revised to 11.30 pm.

18 Mr R Montgomery, a town planner and the council’s executive manager of development, gave evidence to the effect that the conditions suggested by Mr Challis, whether in their original form or as modified by Mr Pickles, would be difficult to enforce. Even small departures from operating conditions would have the potential to disturb the sleep of neighbours. Their complexity suggests that the proposal should not be approved. Mr R Montgomery, a town planner and the council’s executive manager of development, gave evidence to the effect that the conditions suggested by Mr Challis, whether in their original form or as modified by Mr Pickles, would be difficult to enforce. Even small departures from operating conditions would have the potential to disturb the sleep of neighbours. Their complexity suggests that the proposal should not be approved.

19 Mr Challis said that the noise impact would be reduced if the building were redesigned so that the terrace did not face the nearby residences. The solid part of the building should be placed between the terrace and the residences. Moreover, if the clubhouse restaurant were moved further into the site, the noise impact would also be reduced.

20 Mr Pickles submitted that the conditions that Mr Challis proposed were not unusual and have been imposed on many restaurants and function centres. He pointed out that the residents have bought into the area knowing that there would be a golf course next to them. They should accept that the golf course includes a clubhouse.

21 I do not accept this submission. Conditions that require patrons to be quiet at social functions are unusual even in a dense urban situation. They should not be necessary in a rural environment. As for the reasonable expectations of the residents, I do not think that they had any reason to think that a future clubhouse on the golf course would become a conference/function centre that operates until midnight.

22 I accept Mr Montgomery’s evidence that the conditions that Mr Challis deemed necessary to keep noise at acceptable levels would be difficult to enforce. I also accept Mr Challis’ evidence that another location and a more thoughtful design would reduce the impact of the conference/function centre. However, it would still be necessary to cease operation by 10 pm since the cars of departing patrons would pass the residents’ houses, regardless of design and location.

23 In conclusion I find that the noise impact of the proposed conference/function centre is unacceptable. The facility should be designed and/or located so that its impact is acceptable without the need for draconian conditions governing patron behaviour.

Effluent disposal

24 Dr R Patterson, a soil scientist and environmental engineer, was the Court’s-expert on water management. Dr D Martens, also an environmental engineer, who was retained by the applicant, had consulted with Dr Patterson. The evidence before the Court was that the site was sufficiently large to allow for the disposal of effluent and that the roof surfaces and car parks were adequate for water Dr R Patterson, a soil scientist and environmental engineer, was the Court’s-expert on water management. Dr D Martens, also an environmental engineer, who was retained by the applicant, had consulted with Dr Patterson. The evidence before the Court was that the site was sufficiently large to allow for the disposal of effluent and that the roof surfaces and car parks were adequate for water collection. There was no contrary evidence.

25 The council and the residents raised only one issue, namely that the application should nominate the area over which the effluent will be disposed, as well as the designated area for the contingency that the golf course will cease to function. This seems reasonable and does not impose a burden on the applicant.

The footpath

26 The council suggested a condition requiring the applicant to construct a footpath along a section of Peel Road. According to Mr R Vaby, the council’s engineer, the need for the footpath arose from the increase in traffic on Peel Road due to the proposal. Mr C Hallam, a traffic engineer retained by the applicant, took issue. In his opinion, the projected traffic on Peel Road was too small to justify a footpath. However, a widening of the carriageway near the intersection with Linksview Parade might provide additional safety to pedestrians.

27 I accept Mr Hallam’s evidence that a footpath is not warranted. It would be alien to the rural character that the residents are so eager to preserve. However, I do not need to decide this issue. If the proposal could be otherwise approved, I would request Mr Hallam to provide a more detailed description of his road-widening proposal. As it is, his suggestion can be included in an amended or a future application.

The Court’s findings on 26 February 2005

28 At the end of the hearing on 24 and 25 January 2005 the applicant requested that I should not make orders before acquainting the parties with my findings. On 26 February 2005 I read the following findings into the record:

• The impact of the proposal and its landscaping on the rural character of the locality should be assessed to ensure consistency with the zone objectives. It is possible that with landscaping that is compatible with vegetation of the area and visually dominates the proposed buildings, water tanks and car parks; the rural character can be maintained.
• The roofs and car parks are sufficient for the collection of rainwater to service the development.
• The site has sufficient area for effluent disposal; however, the application should define the area over which there will be disposal, the method of disposal, and any designated area that can be used only for effluent disposal.
• The acceptability of noise impact relies on conditions proposed for the operation of the clubhouse and conference/function centre that are difficult to enforce. They are inappropriate in this rural environment. In any case, the applicant does not accept the constraint of 10 o’clock closing. A more sensitive location and design would allow the clubhouse to function without complex constraints on its operation. The 10 o’clock closing would have to be imposed whatever the location of the facility.
• A footpath on Peel Road would not be compatible with rural character and is not necessary. A widening of the carriageway near the intersection with Linksview Place may be required.

Revised proposal tendered on 5 September 2005

29 Between February and September 2005, the applicant re-designed the proposal. The Court-appointed experts, Dr Patterson and Mr Challis assessed it. The applicant tendered the revised proposal at the hearing on 5 September 2005. The revised proposal moved the clubhouse and conference/function centre further from the residential properties and turned the noisy parts of the building away from the residences. It defined the area over which there will be effluent disposal, the method of disposal, and any designated area that can be used only for disposal. Dr Martens and Dr Patterson agreed that the proposed arrangements were satisfactory as long as the average occupancy rate of the motel did not exceed 82%. There was no suggestion that this rate is likely to be exceeded. The expert evidence before the Court therefore suggests that the arrangements for water collection and effluent disposal are acceptable.

30 Mr Challis told the Court that the noise impact on the residential properties was now acceptable and did not require the draconian management practices that would have been necessary with the first proposal. This is because by the time loud voices on the terrace of the clubhouse reached the nearest residential property, they would be attenuated to below the background noise level. The expert evidence before the Court therefore suggests that the noise impact of the proposal is acceptable.

31 The applicant also tendered revised landscape plans replacing the original deciduous trees near the motel units with larger evergreen ones.

32 Mr Pagnan and Mr Urquhart attended the hearing and gave evidence about their remaining concerns. Mr Pagnan concentrated on the hydraulic issues. Dr Patterson responded to his concerns in an unusual session of concurrent evidence in which Mr Pagnan, an objector, and Dr Patterson, an expert were in the witness box together.

33 Mr Urquhart told the Court of his remaining concerns about noise. Mr Challis responded to his concerns in a session of concurrent evidence similar to the above. At the end of the evidence it appeared that Mr Pagnan and Mr Urquhart’s concerns were, if not completely allayed, at least significantly reduced.

34 In view of the evidence relating to the revised proposal, the Court upholds the appeal.

1. The appeal is upheld.
2. Development application for a golf clubhouse, 48 motel rooms and associated development on land at 102 Peel Parade, Kurrajong is determined by the granting of consent subject to the conditions in Annexure A.
3. The exhibits are returned except Exhibits 4 and O.

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