Vlahos v Leichhardt Municipal Council

[2010] NSWLEC 1007

Land and Environment Court

of New South Wales

CITATION:

Vlahos v Leichhardt Municipal Council [2010] NSWLEC 1007

PARTIES:

APPLICANT
George and Mary Vlahos

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10424, 10426 and 10427 of 2009

CORAM:

Tuor C

KEY ISSUES:

BUILDING CERTIFICATE - DEVELOPMENT CONSENT :- use basement and air conditioner
work carried out without consent
noise impact
conditions of consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Protection of the Environment Operations (Noise Control) Regulations 2008
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Leichhardt Local Environmental Plan 2000

CASES CITED:

Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408

DATES OF HEARING:

8 December 2009, final conditions received 13/01/10

 
DATE OF JUDGMENT: 

15 January 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
of Storey & Gough Lawyers

RESPONDENT
Ms J Walsh, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

15 January 2010

10424 of 2009 Vlahos v Leichhardt Council
10426 of 2009
10427 of 2009

JUDGMENT

1 These are appeals against the refusal by Leichhardt Council (the council) of:

(i) an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent (D/2004/732) for a new dwelling, garage with attic space over at 12A Theodore Street, Balmain (the site). The s 96 application seeks approval to use a basement and air conditioning unit, which have been constructed without consent (Appeal No. 10427 of 2009).

(ii) A building certificate application (BC/116/2008) under s 149F of the Act for the basement works (Appeal No. 10426 of 2009).

(iii) A building certificate application (BC/31/2009) under s 149F of the Act for the air conditioning unit in the basement (Appeal No. 10424 of 2009).

2 The council raised contentions in relation to structural adequacy of the basement and its compliance with the Building Code of Australia (BCA). These contentions have been resolved through the works required by the structural experts, Mr Mostyn, for council and Mr Marshall, for the applicant. These works are to be carried out prior to the building certificate for the basement being issued. A condition of consent has been agreed which limits the use of the basement to storage and as a non-habitable room.

3 The only issue that remains in dispute between the parties is the potential noise impacts from the air conditioning unit.

4 The site and its locality, statutory controls and history of the applications are in the Statement of Facts and Contentions and the Statement of Facts and Contentions in Reply.

5 The Court visited the site and heard evidence form adjoining residents at 12B and 12C Theodore Street whose principal concern was the noise from the air conditioning unit, particularly at night and its impact on their sleep. They considered that it was inappropriate to rely on a condition of consent that the air conditioner not be used after 10pm, even if it was regulated through a timer. They were concerned that compliance with this condition was dependent upon the actions of current and future owners and council’s ability to ensure enforcement.

6 The Court heard acoustic evidence from Mr S Cooper, for council and Mr Haydon, for the applicant.

7 The acoustic experts agreed that the relevant noise criteria are:

The air conditioning plant serves a residential premises and therefore is required to comply with the general background +5 dB criterion when assessed as an Laeq over 15 minutes and incorporating any adjustments for tonal, impulse or intermittent characteristics. This applies for daytime, evening and night-time operation.
Furthermore under the NSW Protection of the Environment Operations (Noise Control) Regulations 2008 (PEO) , the following is required:
52 Air conditioners and heat pump water heaters
(1) A person must not cause or permit an air conditioner to be used on residential premises in such a manner that it emits noise that can be heard within a habitable room in any other residential premises (regardless of whether any door or window to that room is open):
(a) before 8 am or after 10 pm on any Saturday, Sunday or public holiday, or
(b) before 7 am or after 10 pm on any other day.

8 The air conditioner is a commercial unit and, with the attenuation works that have now been undertaken, it complies with the PEO criteria before 10 pm. However, these criteria are not met after 10 pm at 12B Theodore Street.

9 Mr Cooper considered that further noise attenuation works should be undertaken to ensure compliance after 10 pm and to enable the air conditioner to be used when required.

10 Mr Haydon stated that compliance could be achieved by a condition, which restricts the use of the air conditioner to before 10 pm. The applicant has agreed to this condition and to install a timer and enter into a positive covenant to register the restriction on title.

11 Mr Gough, for the applicant, submits that there are no specific controls for air conditioners in Leichhardt Local Environmental Plan 2000 and Leichhardt Development Control Plan 2000, however, Development Control Plan 35 (DCP 35) and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Reg 2.6 (the SEPP) can be considered as a guide. DCP 35 includes the following criteria for domestic air conditioners, other than ducted air conditioning systems, to be exempt development:

For dwelling houses:
- unit is to be installed at the rear of the dwelling, a
minimum of 2 metres from any wall opposite the unit.
- no part of the unit is to be visible from the primary street
frontage.
The noise level generated by the unit is not to exceed 5dBA above ambient background noise level measured at the property boundary.
Unit is to be operated in accordance with the EPA guidelines, that is, it must not be used between 10pm and
7am weekdays, and 10pm and 8am weekends and public
holidays.

12 The air conditioner is ducted and therefore it cannot be exempt development. However, Mr Gough submits that the criteria that an air conditioner not operate after 10pm is consistent with the approach in the proposed condition, although he acknowledged that it was unclear as to what the reference to EPA Guidelines refers to.

13 Mr Gough submits that the cost of attenuation works is in the order of $5,000 to $10,000, which is not warranted given that the operation of the air conditioner after 10pm does not comply in respect of only one property and that council could enforce any non-compliance with the condition.

14 Ms Walsh, for the council, submits that it is unreasonable to expect the air conditioner not to be used after 10pm in circumstances where the property is operated 24 hours per day and it is likely that on hot nights the occupants would want to use the air-conditioner as would any future purchaser of the property. Further, the condition relies on ongoing enforcement by the adjoining owners and the council, which is a less satisfactory outcome than undertaking attenuation measures. The cost of these measures is not unreasonable given the impacts from the air-conditioner.

15 Ms Walsh and Mr Gough both referred to the decision of Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 where at [35-38] His Honour states:

In undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully.
……

The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant.

For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant.

16 Both Mr Gough and Ms Walsh accept that illegal actions of present and future owners are an irrelevant consideration and that it must be assumed that an owner will comply with the conditions of consent. However, Ms Walsh states that it is appropriate to consider the past operation of the air conditioning unit and the evidence of the acoustic experts, which demonstrates an unacceptable noise impact after 10pm.

Findings

17 The acoustics experts agree that the air-conditioner does not comply with the PEO criteria after 10pm. The key question before the Court is the appropriate means by which this impact should be mitigated. The applicant submits that this can be done through conditions, which rely on management measures that the air-conditioner not be used after 10pm, a timer, a restriction on the title and enforcement. The council submits that it is more appropriate to rely on conditions, which require physical measures through attenuation works.

18 I accept council’s submission. It is not an unreasonable expectation that an air-conditioner in a dwelling should be able to used on occasion after 10pm and that its use would comply with the relevant noise criteria.

19 DCP 35 and the SEPP are of little relevance to the application as they are criteria for exempt or complying development. The criteria in DCP 35 relate to non ducted air conditioners and the reference to EPA Guidelines and a requirement that they not be used after 10pm is unclear.

20 The air-conditioner is a commercial air-conditioner, which does not comply with the criteria after 10pm. The physical attenuation measures will mitigate this adverse impact and are more reasonable and certain than the complex management measures proposed by the applicant. The attenuation measures will enable the ongoing and unrestricted use of the air-conditioner without adverse amenity impacts on the adjoining property. The attenuation measures are feasible and the cost is not unreasonable, especially when compared to the potential costs of the management measures including placing a restriction on title and the limitation on the use of the air conditioner as well as the difficulty and reasonableness of enforcing a 10pm time limit in a domestic situation.

21 In Appeal 10424 of 2009 the Orders of the Court are:

1. The Appeal be upheld.
2. Council issue a Building Certificate for the Air-conditioning unit located in the basement of the property at 12A Theodore Street, Balmain upon receipt of certification by Richard Haydon that the unit meets the criteria set out in condition 39A(b) and (c) of development consent D/2004/732 as modified in Land and Environment Court proceedings 10427 of 2009.

22 In Appeal 10426 of 2009 the Orders of the Court are:

1. The Appeal be upheld.
2. Council issue a Building Certificate for the basement of the property at 12A Theodore Street, Balmain upon receipt of the certification from Lyle Marshall that condition 3A of development consent D/2004/732 as modified in Land and Environment Court proceedings 10427 of 2009 has been satisfied.

23 In Appeal 10427 of 2009 the Orders of the Court are:

1. The Appeal be upheld.
2. Development Consent No. D/2004/732 issued on 12 April 2005, previously modified on 7 December 2005, 14 June 2006 and 6 June 2007, for 12A Theodore Street, Balmain is amended in accordance with Schedule “A”.

3. The exhibits, except Exhibits 2,4,7, D and K, may be returned

___________________

Annelise Tuor
Commissioner of the Court
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