Land and Environment Court of New South Wales CITATION : Liu v Hurstville City Council [2004] NSWLEC 631 APPLICANT J Liu PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10733 of 2004 CORAM: Moore C KEY ISSUES: Development Application :- LEGISLATION CITED: Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; CASES CITED: Mison v Randwick City Council (1991) 23 NSWLR 734; . DATES OF HEARING: 6 and 7 October and 11 November 2004 EX TEMPORE 11/11/2004 JUDGMENT DATE : APPLICANT Mr S Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt, solicitor Michell Sillar JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 11 November 2004 04/10733 J Liu v Hurstville City Council JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Hurstville Council (the council) of Development Application 20030856 for the demolition of an existing dwelling house and construction of a childcare centre at 33 Vine Street, Hurstville (the site). 2 The matter initially proceeded by way of an on-site inspection on 6 October 2004 and was subsequently continued during a brief hearing on 7 October 2004 3 The Court has had the benefit of three Court-appointed expert witnesses in these proceedings: * Ms Laidlaw, the Court-appointed town planning expert; * Ms Harragon, the Court-appointed childcare planning expert; and * Mr Rogers, the Court-appointed traffic expert 4 As a consequence of discussions between the parties, a number of matters raised by those experts were addressed and resolved by amendments to the original plans. 5 During the course of the hearing on site, I heard evidence from a number of resident of objectors and had the opportunity of inspecting the two villa properties located to the west of the site at 1/35 and 2/35 Vine Street. 6 These are properties occupied by Mr Klok in the front villa (1/35) and Mr Yu in the rear villa (2/35). 7 I also inspected the rear yard of the site itself. 8 The resident objectors raised a number of concerns about the proposal that require to be dealt with in these reasons for decision. 9 Firstly, there was objection as to additional traffic volumes and parking generation. I am satisfied on the basis of the expert traffic material put to me that there is no substantive concern warranting refusal or additional conditions arising out of this. 10 I am satisfied that the entrance to the school (which is located at the rear of the site) and as to which some concern was expressed relating to bus parking is sufficiently removed from the site as to not be a concern. 11 I am also satisfied that the width of Vine Street is sufficient to accommodate the traffic that would be generated by this development and that appropriate arrangements have been made on site for setting down and collection of children and for the parking of vehicles. 12 In addition, an objection was raised as that, on the basis of shifting demographics, there will be some form of oversupply of preschool places in the vicinity compared to the demand for then. 13 Although this was expressed as being an objection on general principle, it in fact came from a person representing the proprietors (or himself one of the proprietors) of an existing preschool or childcare centre located in Vine Street - a little to the east of the site. 14 Consistent with the decision of the High Court in Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, it is not appropriate for me to treat, as a planning issue, the issue of economic competition because it is that which is, in effect, underlying this objection. 15 The question of noise generated from the site has been addressed by Mr Marston, a noise consultant retained by the applicant, who undertook noise measurements at the front boundary and also made some recommendations of treatments of the site relevantly, particularly, with respect to the rear outdoor playing area. 16 I am satisfied, on the basis of this uncontradicted expert evidence, that there is no concern relating to noise emission to surrounding properties except the possibility of concern for noise to be transmitted to the Yu premises being villa 2/35 Vine Street – the villa at the rear of that property. 17 Villa 2/35 Vine Street not only shares a common boundary with the site but also shares a common boundary with the existing school to the south of the site and 35 Vine Street. 18 Mr Marston undertook no testing of noise emissions coming from the school. 19 As a consequence, I raised with Mr Yu, on-site, the question of whether, if I were otherwise satisfied that the application should be approved, he wished me consider whether noise treatment measures should be undertaken to his property. 20 Mr Yu indicated that that would not satisfy him. He has, however, through Ms Hewitt, the councils solicitor, indicated to me today that if I were minded to uphold the appeal and permit the development on the basis of the proposed consent orders as a consequence of the day's hearing, he would wish some ameliorative noise treatment to be undertaken to his property to be required by amendment to the conditions. 21 Mr Klok made a similar request. 22 I turn first to deal with Mr Klok premises. These premises will, as a consequence of measures discussed on site and incorporated in the amended plans, as reported upon by Ms Laidlaw, have significantly improved solar access compared to that which was originally proposed. This solar access will, in my view, be acceptable as to its impact on his property. 23 I am not satisfied that Mr Klok has sufficient concerns as to noise emanating or which might emanate from the site so as to warrant acoustic treatment to his premises. I have reached this conclusion because: * Mr Marston's noise testing on the front boundary satisfies me that there is no noise likely to emanate from the front of the premises which would significantly adversely affect Mr Klok: and * Mr Klok's premises are located adjacent to the building portion of the proposed centre rather than to the rear playing area. 24 For those two reasons, I have not raised with the applicant the adoption of a condition requiring noise amelioration works to Mr Klok's premises. 25 With respect to Mr Yu's premises, I am satisfied that, although there is no expert evidence to rebut his concerns (or, indeed, to confirm them), nonetheless, there is a reasonable concern that the cumulative impact of noise from the existing school and the noise which will arise from the site may be unacceptable. 26 Mr Kondilios, solicitor for the applicant, sought and was given instructions during the today's hearing to consent to an additional condition requiring ameliorative noise measures to be undertaken to Mr Yu's premises with the precise terms of that either to be agreed between Mr Yu and the applicant, or, failing such agreement, to be settled with relevant council officer. I am satisfied that taking such an approach, there is no uncertainty of the type dealt with by the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734. 27 I am satisfied that this is an appropriate approach to take to noise issues at Mr Yu's premises and that, after such ameliorative treatment, the noise that would be generated by the childcare centre, in conjunction with the noise that was already generated by the school, would not warrant refusal of the application. 28 The remaining matter of concern arises from the evidence given on site by Mr Shankar, the resident to the east of the site and the owner of 31 Vine Street. He is particular concerned at the possibility that children will climb the fence between the site and his property and injure themselves in his backyard swimming pool. 29 I satisfied that the proposed fencing treatment between the development and 31 Vine Street will be such that his fears will go unrealised and that there is no basis for refusal or imposition of any additional conditions in this regard. 30 As a consequence, I am prepared to uphold the appeal and issue consent orders in terms of the proposed consent orders together with an additional condition dealing with the noise amelioration treatment to Mr Yu's property. 31 However, I am not satisfied that the provisions of cl 9 of the Consolidated Practice Direction have been adequately complied with in this case. These require that the consent authority demonstrate to me that it has notified all the objectors of the content of the proposed consent orders. 32 In my view that also embodies a requirement for informing the objectors of all elements of the conditions of consent which are being imported into the orders by virtue of the terms of the orders themselves. 33 As a consequence, Ms Hewitt has undertaken to provide a copy of these reasons for decision to the objectors together with a copy of the revised consent orders embodying the noise amelioration treatment condition together with an indication to those objectors of the course I now proposed follow. 34 All the objectors have been notified of today's hearing and have, through Ms Hewitt relevantly expressed their continuing positions to me with respect to the matters that are in dispute – all of which have been dealt with by these reasons. 35 The objectors will be advised that I propose to proceed by the issuing of the orders, without holding a further hearing. 36 On that basis, the matter will be set down for callover before the Registrar on 25 November. 37 If an electronic copy of the revised consent orders, together with a copy of the letter to the objectors, is received by me prior to close of business on Thursday 18 November, I will issue those orders in Chambers and vacate the callover. Tim Moore Commissioner of the Court 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.