Thiess Services Pty Ltd v Wollongong City Council

[2004] NSWLEC 681

Land and Environment Court

of New South Wales

CITATION:

Thiess Services Pty Ltd v Wollongong City Council [2004] NSWLEC 681 revised - 7/12/2004

PARTIES:

APPLICANT
Thiess Services Pty Ltd

RESPONDENT
Wollongong City Council

FILE NUMBER(S):

10972 of 2004

CORAM:

Bly C - Brown C

KEY ISSUES:

Development Application :- Truck depot workshops and offices in association with the storage and maintenance of garbage trucks - noise and odour impacts on residential area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollongong Local Environmental Plan 1990
Wollongong Development Control Plan No. 6 - Commercial and Industrial Development

CASES CITED:

DATES OF HEARING:

29/112004 - 30/11/2004

EX TEMPORE
JUDGMENT DATE :

12/01/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C J Leggat, barrister
instructed by Ms R Simmons, solicitor
of Sparke Helmore

RESPONDENT
Mr A Pickles, barrister
instructed by Mr M Mantei, solicitor
of Kells The Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C
Brown C

1 December 2004

10972 of 2004 Thiess Services Pty Ltd v
Wollongong City Council

JUDGMENT

COMMISSIONERS:

1 This is an appeal against the imposition of conditions on Development Application D885/03 approved by Wollongong City Council (the council) on 23 February 2004. The approval allows the use of the premises at 264 - 270 Nolan Street, Berkeley, (the site) as a truck depot, workshops and offices in association with the applicant’s business of storage and maintenance of garbage trucks. The approval allows the storage of 45 trucks and the use of a workshop/spray booth for truck repair and large/skip bin repair. Conditions place restrictions on hours of operations for truck movements and workshop operation and impose other noise reduction measures. The appeal was lodged pursuant to s 97 of the Environmental Planing and Assessment Act 1979.

The site

2 The site is irregular in shape and has a battleaxe access way to Nolan Street. The site has an approximate area of 2.137 ha and is located on the perimeter of a light industrial area. It is bordered on three sides by light industrial uses. The Illawarra Railway is located directly to the west and adjoining the railway line is the Princes Highway. Directly to the west of the Highway is a residential area containing approximately 150 dwellings.

Relevant planning controls

3 The site is within zone No. 4(a) - Light Industrial under Wollongong Local Environmental Plan 1990 (the LEP). The proposed use is permissible with consent within this zone. Clause 9(3) requires that consent shall not be granted unless the Court "is of the opinion that the carrying out of the development is consistent with the objectives of the zone." The relevant zone objective states:

(a) to cater for a wide range of manufacturing and service activities which will not interfere with the amenity of nearby residents.

4 Wollongong Development Control Plan No. 6 - Commercial and Industrial Development (DCP 6) also applies. For Industrial Development, "unsightly areas and open yard activities are to be screened from public view by buildings, walls or intensive landscaping" (p 35). The site is located in the Unanderra Industrial Park. Specific objectives for this area require "storage areas located out of sight from public areas or adjoining properties, if necessary screened by vegetation or screen fences" (Objective (vi), p 64) and "extensive planting of front landscape strip preferably with a mound up to 1 m high on reasonably level lots" (Objective (vii), p 64).

The issues

5 The Statement of Issues originally filed by the applicant raised issue with Conditions 2, 5, 7, 15 and 17. However, only Condition 2 was in dispute at the hearing. This condition states:

2 Restricted Consent Period

This development is valid for a period not exceeding one (1) year from the date shown as "endorsed date of consent" on this notice unless otherwise approved by the Council. At the end of this period the development must cease and all trucks be removed from the land.
The evidence

6 Mr Michael Brown, a town planner provided evidence for the council. He states that the site is not suitable for the proposed development. The nearest residential dwellings are located between 100 and 150 m from the site and even though the amenity of the residential area is affected by the nearby railway line, the noise impacts from the site have a totally different character. He notes that a number of conditions of approval have not or are currently not being complied with although he defers to Mr Cooper on any assessment of noise impacts. In his opinion, the proposal is inconsistent with zone objective (a) and as such cannot be approved.

7 Additional evidence was provided by local residents:

• Mrs Pocock of 214 Nolan Street,
• Mr McDonnell of 2 Orana Parade and
• Mr Fullard of 174 Princess Highway.

8 The residents provided their evidence on site and the properties of Mr McDonnell and Mr Fullard were inspected on the site view. The Court also had the benefit of a copy of the submissions received when the development application was advertised. Mr McDonnell and Mr Fullard live opposite the site and expressed concern over noise generated from the trucks leaving early in the morning and activities in the workshop. Mrs Pocock lives some distance from the site and is largely concerned about the excessive speed of the company’s trucks travelling along Nolan Street although her concerns are more appropriately dealt with by local police.

9 Mr Tony McNamara, a town planner provided evidence for the applicant. He states that the development has demonstrated that by strict compliance with the conditions of consent it can avoid interfering with the adjacent residential amenity. In his opinion strict compliance with the conditions of consent can be ensured by the imposition of an Environmental Management Plan that will apply additional measures designed to achieve ongoing compliance without the need for additional resources from the council. On this basis, he concludes that the proposed development is consistent with zone objective (a).

10 The parties agreed to the appointment of Mr Steven Cooper, as the Court appointed acoustic expert and Mr Nigel Holmes as the Court appointed odour expert.

11 Mr Cooper’s evidence states that the depot and work maintenance facility would fully comply in terms of noise criteria based on the Industrial Noise Policy prepared by the Environment Protection Authority. He notes that the critical aspect of the proposed development is the noise generated by trucks as they pass residential premises and he consequently endorses the prohibition on trucks accessing the Princes Highway and the imposition of other conditions restricting noise from the site.

12 Mr Holmes’s evidence states that properly cleaned trucks, stored with cargo compartments closed would not be expected to cause detectable odours in the residential areas even under unfavourable dispersion conditions. He recommends that no more than three trucks should be queued while waiting to be cleaned.

Findings

13 The Court was advised that the council imposed Condition 2 as the proposed use was seen as being unacceptable in the location because of its proximity to the residential development on the opposite side of the Princes Highway. The one-year period was to provide a reasonable time to relocate. The council's concerns were largely based on the noise generated by the activities on the site, particularly the early-morning with the departure of trucks from 4.00 am and activities in the workshop. The council had received a number of complaints in this regard. The applicant seeks the removal of Condition 2 as any adverse environmental impacts have been suitably addressed through conditions of consent and management practices.

14 As the proceedings evolved, the management practices of the applicant company were further refined to reduce potential noise impacts on nearby residential properties. These took the form of additional conditions that were not opposed by the council. These generally relate to:

• a prohibition on trucks leaving between 4.00 am and 5.00 am,
• a prohibition on trucks using part of Nolan Street between 10.00 pm and 7.00 am,
• designated noise emission levels at any residential property boundary,
• time restrictions on cleaning and assembly of bins,
• restrictions on bin loading,
• restrictions on truck cleaning, and
• amendments to the Environmental Management Plan.

15 The council also proposed a further condition that sought the erection of a 2.5 m high barrier along western boundary of the site. This barrier is designed to provide some screening of the noise of trucks and other activities at the western end of the site and to visually screen development. Mr Pickles, the applicant’s advocate, submitted that the council would not oppose the deletion of Condition 2 if the applicant agreed to the condition requiring the erection of this barrier fencing, in addition to the other conditions previously agreed. Notwithstanding this concession the applicant opposed the condition.

16 Following the evidence and the further agreements reached by the parties, the question the Court is essentially being asked to determine is whether the condition requiring the erection of the barrier fencing should be imposed.

17 In our opinion, there are number of reasons why the answer to this question must be no. Importantly, Mr Cooper when questioned on the effectiveness of the barrier fencing indicated that any benefit would be limited to trucks parked close to the western boundary. These trucks are generally the last to leave the site and not the source of noise complaints. The barrier will also be largely ineffective for any noise generated from the workshop area because of the topography that places the adjoining residential area at a higher elevation than the site.

18 It was also submitted that the fence would provide a visual barrier and be consistent with the objectives in DCP 6 where screening of industrial premises is required. While accepting that screening is a desirable objective, we note that landscaping has been provided along this property boundary to achieve the same objective. Even though the landscaping has only been recently undertaken and looked relatively sparse, we did not understand that it was inconsistent with the council's requirements.

19 Mr Pickles also submitted that the barrier fencing would provide a degree of comfort for nearby residential properties in the event of irregular noise events and potentially limit monitoring by the council. While this submission is not without some merit, in our opinion, it is not sufficient justification for the erection of the barrier fencing.

20 Overall, we accept that the original conditions imposed by the council and the additional conditions, including an environmental management plan, offered by the applicant will provide a suitable relationship between the residential and industrial properties. Consequently, and in accordance with cl 9(3) we find the proposed development consistent with zone objective (a). In coming to this conclusion we accept that it is necessary for the applicant to strictly comply with the conditions of approval. In this regard we acknowledge the assurances given by Mr Barry Thomas, the Manager Collection and Recycling from the applicant company of his personal involvement in ensuring that the applicant will comply with these requirements.

Orders

20 For the foregoing reasons, the Orders of the Court are:

1. The appeal is upheld.
2. Development Application D885/03 for the use of the premises at 264 - 270 Nolan Street, Berkeley, as a truck depot, workshops and offices in association with the applicant’s business of storage and maintenance of garbage trucks is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of Exhibit G.

______________________
T A Bly
Commissioner of the Court
rjs

______________________
G T Brown
Commissioner of the Court
rjs