Dayho v Rockdale City Council [2004] NSWLEC 184

Land and Environment Court of New South Wales

CITATION : Dayho v Rockdale City Council [2004] NSWLEC 184 revised - 4/03/2005 APPLICANT Dayho Pty Ltd PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 10830 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application :- Planning principle: monitoring compliance with conditions LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/06/2004, 29/06/2004 and 01/07/2004 DATE OF JUDGMENT: 07/16/2004

APPLICANT Mr A Galasso, barrister SOLICITORS Bowen & Gerathy

LEGAL REPRESENTATIVES: RESPONDENT: Mr D Parry, barrister SOLICITORS: Abbott Tout

JUDGMENT: - 5 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

16 July 2004

10830 of 2003 Dayho Pty Ltd v Rockdale City Council

JUDGMENT 1 SENIOR COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (the council) of a development application to construct and operate a concrete batching plant on lot 32 DP 213695, known as 405-411 West Botany Street, Rockdale. 2 The parties have reached agreement that the application should be approved, though four conditions of consent remain in dispute. There is strong opposition from residents in the area, most of whom live in the apartment blocks at Rockdale Plaza, as well as from one industrial neighbour. 3 The site is in a light industrial zone. Light industry is defined by performance, rather than nominated land use. It is common ground that a concrete batching plant is permissible in the zone only if its impacts on the environment from noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit and oil are acceptable. The critical impacts of a concrete batching plant are noise and dust. The two experts on air quality were Dr N Holmes, an atmospheric physicist for the applicant, and Mr P Stephenson, an atmospheric chemist for the council. They agreed that dust emission can be kept within acceptable limits, provided certain conditions prescribing how the plant is to be operated, are observed. The relevant conditions are Conditions 68, 70, 72, 75, 76, 78, 80, 81, 82, 83, 86 and 87 of the consent. The Court-appointed expert on noise advised that noise from the plant could be kept within acceptable limits and is not a reason for refusal. 4 The Court heard the evidence of 9 residents, Mr R Benson, the manager of a nearby tennis court, and Mr K Monaghan, the manager of Red Composites, an industrial concern at 7-13 Lindsay Street. Mr Monaghan was concerned about dust emission affecting his injection moulding plant. The residents from the Rockdale Plaza apartments were Mr T Sarno, Mr R Soul, Ms N Yakobi, Mr G Lill, Mr T Lovell, Mr S Haddad, Mr B Clark and Mr J Sackett. Their main concern was the noise and dust impact of the proposed plant. Ms T Clapper, who lives in King Street and is the president of the P & C of the Brighton Le Sands Public School, said that she was concerned about the effect of dust on the children in the school. Ms C Itidie, who lives on West Botany Street also voiced a concern about the same matters. 5 Since the experts agreed that the plant's impact would be acceptable, I asked each of them to comment on the residents' fears. They responded that, provided the conditions of approval are observed, the residents would not experience a noticeable change in noise or dust. Subject to the same proviso, there would be no adverse impact on the tennis court, the school and the Red Composites site. 6 The residents were sceptical about the applicant's compliance with the conditions of consent regulating the operation of the plant, and had no faith in the council's ability to enforce them. In their opinion, monitoring the plant's performance was pointless if it was left to the applicant to arrange the monitoring at a time of its choice. It would then be easy for the applicant to comply with the conditions during the annual visits of the expert it appointed to carry out the monitoring, and not comply at other times. In my opinion, these concerns are valid in this case. They are generally valid in most cases where the manner in which an operation is carried out is to be monitored.