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. Planning principle: monitoring of compliance 7 Where conditions of consent relate to the operation of a use, and it is proposed to monitor compliance with those conditions, it is preferable for the council (rather than the applicant or the operator of the use) to appoint the persons responsible for the monitoring and to choose the time at which the monitoring is to be carried out. While the council arranges for the monitoring, the applicant or the operator of the use is responsible for its cost. 8 Condition 17 (agreed to by the council as well as the applicant) sets out the method of monitoring in accordance with the above principle. The council is responsible, at the applicant's full cost, for commissioning a suitably qualified person to certify whether or not the plant is operated in accordance with the conditions of consent. While the condition may not satisfy the objectors, it seems to me that, short of refusing the application, there is no better way of ensuring that the plant will operate in the way in which the experts suggested that it should. Conditions in dispute 9 Four conditions of consent were in dispute. The applicant objected to the second part of draft Condition 4. This would oblige the applicant to certify that its annual output did not exceed 30,000 tonnes within 7 days of each anniversary of the commencement of operations. Given that the limit on tonnage is the condition that exempts the applicant from having to seek a licence, the requirement seems to me to be reasonable. 10 In addition to the monitoring of the plant's operation, required by agreed Condition 17, the council (or rather, Mr Stephenson on behalf of the council) suggested an additional condition requiring the applicant to measure dust deposition at two sites close to the subject site's boundary, before the operation commences and for 12 consecutive months after commencement. Dr Holmes said that measuring dust emission would have no practical value. This is because there were other sources of dust emission in the area, eg a waste transfer station, traffic on West Botany Street, a garden supply operation, and further away, the airport and Tempe tip. In addition, the deposition of dust varies from year to year, from season to season, according to climatic conditions and is affected by the construction of other buildings in the vicinity and by bush fires. It would be impossible to identify the relative contributions of these sources to any measurement of dust deposition. 11 Mr Stephenson agreed with Dr Holmes that dust monitoring at the apartment buildings in Rockdale Plaza would not yield information about the dust emissions from the Dayho plant. However, he proposed monitoring air quality near the boundary of the site. The changes in dust deposition levels at these locations would allow conclusions to be drawn about dust emission from the plant. The requirement to monitor would give the residents some comfort that there was a routine check on dust emission. It would also give the plant operators an incentive to maintain the plant and pollution control system in the professional manner promised in Dr Holmes' statement and in the Environmental Impact Statement. 12 I find Mr Stephenson's argument persuasive and have therefore imposed the requirement as Condition 17A. 13 The applicant objected to Condition 31, which requires that concrete trucks should not park or stand in Lindsay Street. The basis of objection was that other businesses are not burdened with similar requirements. Since the application relies on all of the applicant's trucks being parked on the site, the condition requires only what the applicant has already said it would do. The condition has therefore been retained. 14 Condition 42 requires the applicant to provide storage for "dirty water". Mr Fiander, a hydrologist for the council, said the storage should be 60m3. Dr Joliffe said that 10m3 would be sufficient. It seems to me that Mr Fiander was over-cautious in his requirement. I have therefore determined the storage size to be between the two requirements (though closer to Dr Joliffe's estimate) at 20m3. 15 Since the parties agreed to consent being granted to the application and the experts have assured me that the there will not be material noise or dust impact from the operation, the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to construct and operate a concrete batching plant on lot 32 DP 213695, known as 405-411 West Botany Street, Rockdale is determined by the grant of approval subject to the conditions in Annexure A. 3. The exhibits are returned except for Exhibit B. ____________________ Dr John Roseth Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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