Reported Decision : 117 LGERA 87 Land and Environment Court of New South Wales CITATION : Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 227 APPLICANT Concrite Pty Ltd PARTIES : RESPONDENT South Sydney City Council FILE NUMBER(S) : 10415 of 2001 CORAM: Talbot J KEY ISSUES: Development Consent :- application for modification - refused subject to application to re-open Environmental Planning and Assessment Act 1979 s 96, s 79, s 79C(1)(ii), s 117(2) Direction G11 LEGISLATION CITED: Land and Environment Court Act 1979 s 56A South Sydney Local Environmental Plan 1998 Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257; CASES CITED: Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224; Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd and Another (1996) 90 LGERA 68 DATES OF HEARING: 14/09/01, 17/09/01, 18/09/01, 19/09/01 DATE OF JUDGMENT: 09/26/2001 APPLICANT Mr T.S. Hale SC SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr A.M. Hawkes (Solicitor) SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND Matter No. 10415 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 26 September 2001 Concrite Pty Ltd Applicant v South Sydney City Council Respondent REASONS FOR JUDGMENT The development 1. The applicant operates a concrete batching plant at Lot 42 DP 789768 known as No 25-33 Mandible Street, Alexandria located on the northwestern side of the street between Bowden Street and Wyndham Street. The site has an area of 4,905m 2 . There are separate entry and exit points to the subject site provided through two gateways onto Mandible Street. 2. The operation consists of a concrete batching plant, with overhead cement silos, aggregate storage, aggregate receivable bins, office and batch control rooms, staff amenities, employee and visitor car parking, truck parking areas and water management areas. 3. The plant is located within an established industrial area. 4. Development consent was granted in an appeal to this Court by Assessor Brown (as he then was) on 26 June 1998 subject to conditions ("the 1998 consent"). An appeal pursuant to s 56A of the Land and Environment Court Act 1979 was dismissed by Sheahan J on 18 December 1998. The application 5. The applicant lodged an application for modification of the 1998 consent with the South Sydney City Council ("the council") pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The applicant appealed to this Court against the deemed refusal of the application for modification made to the council. The council has since determined the application by refusal. 6. The issue of jurisdiction was raised by the Court and after some discussion the applicant, by consent, lodged an amended class 1 application whereby it now applies to the Court for modification of the development consent granted by Assessor Brown. The council raises no further issue with respect to jurisdiction following the lodgement of the amended class 1 application. 7. Commissioner Watts assisted the Court throughout the hearing and in the preparation of these reasons. Issues 8. The applicant seeks to amend the conditions of the consent which limit night time traffic and operations subject to meeting the noise criteria set by Assessor Brown. The traffic conditions were limited to three years from the date of consent. 9. The effect of the proposed amendments will be to allow the use of specified local streets between the hours of 9:00pm and 6:30am for an unlimited period thereby deleting the three year term imposed by Assessor Brown. 10. The present conditions also limit the operation of the plant between the above hours to no more than three occasions per month. The applicant seeks to remove this constraint. 11. The night time L Aeq(15minute) noise criteria for the operation of the plant has been agreed at not exceeding 45dB(A) ("the 45dB(A) noise criterion") at the boundary of any relevant residential properties. What is a relevant residential property is in dispute. 12. The applicant, therefore, seeks to modify the application as follows:- (1) Unlimited use of the specified streets at night time; and (2) Operation of the plant at night time, seven days per week subject to meeting the 45dB(A) noise criterion at any existing residential premises or at any future residential property north of McEvoy Street or east of Wyndham Street. 13. The 45dB(A) noise criterion has been established as a consequence of the two noise expert consultants meeting in accordance with directions made in the course of the hearing by the Court, pursuant to the Expert Witness Practice Direction 1999, whereby an agreed statement in respect of noise was ultimately tendered and adopted by the parties. 14. Effectively, there is no issue remaining between the parties in respect of traffic management except the number of trucks operating at night time. 15. There are only three existing residential properties in relevant proximity to the site. Each of these is in Wyndham Street. One of the residential developments, namely "The Hudson" has been developed in the last few years, whilst others have been erected much earlier. There is no prospect that the night time operation of the plant or the use of the designated neighbourhood streets will have any noise impact on any of these locations. The planning regime 16. Stage 1 of the Green Square Master Plan is reflected in the South Sydney Local Environmental Plan 1998 ("the LEP"). Under the LEP the subject site is zoned Industrial 4. The development is permissible with consent in that zone. The use of adjoining land is consistent with the industrial 4 zoning. 17. The land opposite the subject site is within Zone 10(d) Mixed Uses "D" under the same instrument. In the 10(d) zone certain residential related uses, up to 15 per cent of each development site, are permissible with consent. These include:- (1) Backpackers' hostels; (2) Bed and breakfasts; (3) Dwellings and multiple dwellings which are used in conjunction with and attached to a building that is used or intended to be used for a land use which is permissible in the zone; and (4) Hotels. 18. Pursuant to Stage 2 of the Green Square Master Plan, which has been incorporated in a proposed draft Local Environmental Plan ("the proposed draft LEP"), the subject land will be in Zone 10(b) Mixed Uses "B". In the 10(b) zone there are no prohibited uses subject to consistency with the objectives of the zone. 19. Clause 10 of the LEP requires the council not to grant consent to the carrying out of development unless the council is of the opinion that the proposal is consistent with the objectives of the zone. 20. The relevant objective of the 10(d) zone is as follows:- to establish a predominantly employment based zone while allowing not more than 15% residential use of each development site, but only if it supports those employment uses 21. The relevant objectives of the 10(b) zone are as follows:- to provide urban housing and a range of compatible vibrant non-residential uses, such as shops, offices, retail and studio-type workshops, and … to allow up to 25% non-residential uses on each development site 22. The proposed draft LEP and draft Development Control Plan amendments were endorsed by the council for exhibition on 29 August 2001. The exhibition of these documents has not commenced. Formal preliminary discussions have taken place between council officers and the Department of Urban Affairs and Planning staff. 23. The proposed draft LEP is, therefore, in a pre-nascent state. The Court is not required to take it into account by virtue of s 79C(1)(ii) of the EP&A Act. Nevertheless, it will not be appropriate to ignore it altogether as the applicant submits. It is a question of weight. The Court proposes to recognise the existence of the proposed draft LEP but only in the light of the remote prospect that it will be made within a foreseeable time for the following reasons:- (1) The effect will be to re-zone a significant portion of the South Sydney industrial land which must be justified, pursuant to s 117(2) Direction G11 under the EP&A Act, which provides as follows:- Draft local environmental plans shall not substantially reduce existing zonings of land for industrial development. The extent of any such alteration or reduction shall be considered from the point of view of the total area of existing land zoned for industrial development within the whole of the council's area as at 1 September 1980. (2) The slow up-take of residential development opportunities in Stage 1 since 1998; (3) The ongoing demand for industrial land within close proximity to the central business district of Sydney; (4) The commercial yield for prospective residential development is constrained by the low FSR specified within the mixed use zones; and (5) The entrenched nature of the present industrial uses. 24. There is no evidence before the Court that there is any immediate demand for mixed residential development in the locality. 25. The council has not persuaded the Court to support the prospect of the land being included in the 10(b) zone within the next 15 years. 26. The same consideration can be brought to bear in order to assess the likelihood of land in the 10(b) zone, within proximity to the site, being developed for a residential purpose. 27. Moreover, the constraint of not more than 15 per cent residential use for each development in the 10(d) zone reduces the prospect even further and there is a strong prospect that non-residential uses might face the subject land and protect residential uses further to the south. 28. Although the Stage 2 document cannot be regarded as a planning instrument or a draft planning instrument within the meaning of s 79C of the EP&A Act, it nevertheless provides an insight into the planning principles and considerations involved in the council's current deliberations in respect of future planning for the area ( Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224 at 229). Noise Impact 29. The current environmental impact of the operation of the development on a limited basis at night time might, by inference, be gauged by the low number of objections made to the current application. This, of course, may also be attributed to the low level of residential development in the area at present. None of the objectors gave evidence. The concerns expressed in the submissions to the council generally address road noise and the possible impact on future residential development. Apart from the contribution to road noise, the objectors do not stress adverse impact from the operation of the plant. 30. It is agreed by the noise consultants, in the written joint statement made in response to the Court's direction, that plant noise levels will comply with the agreed 45dB(A) noise criterion at existing residences if an acoustically designed slump tunnel is installed. It is also agreed that the plant noise would comply with the 45dB(A) noise criterion at residential components of a theoretical development concept, prepared by Turner and Associates Pty Ltd as a possible form of future development on property opposite the site in the 10(d) zone, provided the number of concrete trucks loaded per hour at night time is restricted to three. 31. The noise consultants further agree that the noise of concrete plant trucks on public roads at night time will comply with the agreed noise criterion at existing residential premises. 32. It is also generally agreed that the noise impact of truck movement on public roads associated with the plant's night time operations will depend upon the form of future development and the location of residential components of the development. Without a specific development design for the future development the noise impact upon the residential components cannot be determined. 33. In regard to the potential future developments and the associated noise impact, the agreements referred to above are based on the assumption of "normal residential development as part of the overall development" . 34. The remaining issue in relation to noise is whether a limitation should be placed on the duration of the conditions that permit night time use seven days per week in order to enable the consent authority to reconsider if the foreshadowed planning changes occur and in the light of future residential development. 35. The prospect of a rezoning of the site from industrial to mixed use zone is not such that the Court is prepared to give it any determinative might. It is only a foreshadowed indication of a change that forms part of an ongoing review process that is likely to materialise in the form of a LEP only if the take-up of existing industrial land for alternative purposes occurs in the Stage 1 areas. 36. The highest the council's case rises is in the conclusion expressed by Lila Contziu, the Project Planner for the Green Square Project Team of South Sydney City Council, as follows:- The Green Square redevelopment area is undergoing significant change and its transformation into a high quality living and working environment is expected to continue over the next 10-15 years, its pace depending on cyclic market conditions. Since the Stage 1 rezonings, Council has experienced considerable interest from the development sector on the redevelopment of sites in this area. As the planning for the Stage 2 area progresses and new zonings in line with the Green Square vision come into force, Council expects this interest will continue, fostered by the State Government's involvement in the Green Square Town Centre. Whilst it is important to manage potential conflicts of use between existing and new uses, consideration of the long-term public interest as expressed originally in the Green Square Structural Masterplan, and subsequently in the Green Square LEP and DCP amendments, should in my view take precedence. The long term vision for the area should guide decisions concerning those uses currently located in the area which do not conform with this vision, and whether the continued operation and/or intensification of these uses will detract from achieving the vision. 37. It is appropriate, in the Court's view, to adopt Ms Contziu's description of the future plan as a "long term vision for the area" . That is not something that is sufficiently defined to enable the Court to give any more than nominal weight to the proposal. For present purposes it should be regarded as no more than a precursor to the formulation of a definitive scheme. 38. Furthermore, it now seems to be an established principle, and in the Court's view a correct one, that any new development should be expected to accommodate the impact of existing lawful development on adjoining or nearby land. It is consistent with the reasoning adopted by the Court of Appeal in Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd and Another (1996) 90 LGERA 68 to recognise that any future residential development on adjacent land will need to take account of and accommodate the impact of existing development including, in this instance, the operation of the batching plant. 39. Having regard to the whole of the circumstances, it is not unreasonable that the subject industrial plant should operate in the manner permitted over the last three years by the existing zoning, economic demands and the 1998 consent. The future viability of the plant should not be unduly constrained by an undefined and unproven prospect of limited residential development in the area south of Mandible Street (currently zoned 10(d)), the area west of the appeal site and the immediate area north and east of the subject site between the site and McEvoy Street, Bowden Street and Wyndham Street (currently zoned industrial 4 and proposed to be zoned 10(b) in the proposed draft LEP). 40. The applicant's own expert noise consultant, Mr Murray, suggests that "an automatically opening door or curtain could be fitted to the Mandible Street end of the tunnel, thereby reducing noise levels across Mandible Street by a significant amount" . 41. The council not only urges the construction of a slump tunnel in the manner and the location accepted by the parties during the course of the hearing but also demands installation of the automatically opening door or curtain referred to by Mr Murray as a condition of the proposed modification. The applicant does not propose to add the door or curtain at this time. 42. Although the door or curtain may not be imperative at this point of time, nevertheless, the advice from both noise consultants is that if mixed use development did occur across the road to the south then the number of concrete trucks loaded per hour should be restricted to three so that the plant noise complies with the 45dB(A) noise criterion. 43. There is no direct support from the experts for more than three concrete trucks being loaded each hour during the specified night time hours. However, this lack of support relates to a theoretical development concept that is far from certain and indeed, in accordance with principle, will be expected to accommodate any adverse impact from operation of the plant. 44. There is no persuasive evidence to support either the immediate installation of a door or curtain to the slump tunnel or to restrict the number of trucks to three per hour in the present circumstances. It is, of course, preferable but certainly not imperative. The unrefuted assertion is that the turnaround of concrete trucks at night time with one slump stand operating will be around 15 minutes. However, it is appropriate that proper use be made of the slump tunnel. Accordingly, the conditions of consent should require that after the construction of the slump tunnel only the eastern slump stand be used during the hours of 9:00pm to 6:30am. A condition to this effect accords with the applicant's stated intention. Conclusion 45. The Court finds that there is presently no unacceptable adverse impact from the noise of trucks using designated streets at night time and no real likelihood that any such impact is likely to occur in the immediate future. Therefore, the limitation of the operation of a condition allowing the use of the designated streets during the night hours for a period of three years is, in the Court's view, not justified. 46. Condition 62 presently requires the parties to review the route to be taken by raw material trucks and concrete mixer trucks 10 years after the 1998 consent was granted by Assessor Brown. The Court is of the opinion that if condition 62 is a reflection of the intention of both parties in respect of the route to be taken then, equally, it should apply to night time operations. 47. It would not be appropriate to tie the new condition to the review prescribed by condition 62. The court is of the opinion that even if the provisions of condition 62 are valid they are not readily enforceable. Subject to providing for an effective resolution mechanism or a simple time limit to the operation of amended conditions for night time operation up to 2008, the Court is disposed to consider imposing such a condition. 48. It is not reasonable for the operation of the plant to be jeopardised by the prospect of unspecified and unidentified mixed residential development occurring at an uncertain time in the future in the vicinity of the site. The council's general and wide requirement that the L Aeq(15minute) noise level emanating from the premises shall not exceed 45dB(A) between 9:00pm and 6:30am at the boundary of any future residential premises or any mixed use premises containing a residential component is not justified. 49. The applicant is prepared to meet the above noise condition at the boundary of any existing residential premises or at any future residential properties north of McEvoy Street or east of Wyndham Street. In the Court's opinion that is an appropriate concession provided that the condition which imposes this control is also reviewed in conjunction with condition 62. 50. The council has made the following concession in relation to the construction of the slump tunnel:- Council has moved from the position that the slump tunnel should be constructed prior to any commencement of 24 hour operations and accepts the applicant's proposed condition 7A. The indicative location plan shows the general location of the proposed slump tunnel and the condition provides that the applicant is to apply to Council for any necessary consents, which will presumably will contain the more detailed and conventional plans that accompany a development application/application for a construction certificate. 51. In the present circumstances it may be necessary for the Court to dismiss the appeal unless consent to the imposition of acceptable conditions, in accordance with and reflecting those reasons, is forthcoming from the applicant ( Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257). 52. Unless either party makes an application to re-open within seven days the appeal will be dismissed. Orders 53. The purpose of orders in the following form is to allow the parties to consider their respective positions and to bring in the form of appropriate conditions. 54. The Court makes the following orders: (1) Appeal dismissed subject to a notice of motion by either party to re-open within seven days. (2) The exhibits be retained for seven days or until any application to re-open is heard. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.