Land and Environment Court of New South Wales CITATION : Colin Joss & Co. Pty Ltd v Albury City Council [2004] NSWLEC 713 APPLICANT Colin Joss & Co. Pty Ltd PARTIES : RESPONDENT Albury City Council FILE NUMBER(S) : 10509 of 2004 CORAM: Brown C KEY ISSUES: Development Consent :- consent orders - modification of consent for the erection of a fast food outlet and carwash facility - extended operating hours - noise. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 6/10/2004 EX TEMPORE 10/06/2004 JUDGMENT DATE : APPLICANT Mr J Sloane, solicitor SOLICITORS James G Sloane Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, barrister SOLICITORS Kell Moore Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 6 October 2004 10509 of 2004 Colin Joss & Co. Pty Ltd v Albury City Council JUDGMENT 1 This matter originally comes before the Court as a contested appeal in relation to the refusal of an application to modify a consent granted by Albury City Council (the council) for the erection of a KFC fast food outlet, carwash facility and car parts, wholesale and retail facility at the corner of David and Hume Street, Albury (the site). 2 The conditions in dispute were condition 42 that required the KFC restaurant to operate between 6am and 10pm, and condition 48, that required the carwash facility to operate between 7am and 7pm. The proposed amendment sought to extend the operating hours of the KFC restaurant from 6am till 11pm and for the carwash from 6am till 11pm. 3 Prior to the hearing the parties agreed to the appointment of Mr Barry Murray as a Court Appointed acoustical expert. Following the receipt of his report, the council resolved to enter into consent orders based on the applicant's acceptance of Mr Murray's recommendations. 4 In accordance with the Court's Practice Direction, objectors to a proposed development may seek leave to be heard in the Court's consideration of the consent orders. In this regard a number of local residents sought to be heard. 5 On the site view the Court was taken to premises in David Street, Macauley Street and Smollett Street. Other properties nearby were pointed out from the site. A number of residents explained their concerns at this time. The Court was also presented with a bundle of documents containing the written submissions to the council when the application was advertised. 6 In the hearing of consent orders, the Court is required to consider whether adequate notice has been given to residents to attend the Court hearing. There was concern from some residents that the time was inadequate, however details of the notification were provided to the Court and indicated that 31 owners and occupiers of nearby properties were advised some three weeks prior to the hearing of the opportunity to be heard. In my view, this is more than adequate notification. 7 While the Court was advised that more residents wished to attend the hearing, the Court was able to understand the concerns of the residents from the submissions, and from those residents who did attend the site view. Their concerns covered a range of matters including the original approval and the appropriateness of this approval. These matters however, were beyond the Court's considerations in these proceedings. 8 The relevant concerns related to the appearance of the proposed acoustic walls, the potential security problems, additional noise and consequent disturbance to residential properties. Clearly, the significant issue in these proceedings was noise impact. 9 Mr Murray's report concluded that the extensions were acceptable, although he prohibited the use of the vacuum cleaners in the carwash facility between 6am and 7am, and between 10pm and 11pm. He also proposed acoustical walls and a compliance assessment after completion of the proposed development and the acoustical mitigation works. 10 Mr Murray's evidence was not challenged, although it was not generally accepted by the local residents who maintained that their amenity would still be affected by the extended hours. 11 In considering this issue, the Court must take into account how the proposed development compares to the relevant noise emission standards. In this case, Mr Murray considered the relevant noise criteria in the EPA Industrial Noise Policy, and found that it was acceptable in all but one area. The departure was addressed by limiting the hours of the vacuuming facilities in the carwash. 12 While it was suggested that the means of limiting the vacuuming facilities by time switches could fail, and I accept this could occur, the Court must assume that the conditions will be complied with. 13 Of the other issues raised by residents, I accept that the separation between the site and the properties in Macauley Street provides a sufficient separation to mitigate any noise or visual impacts. The acoustical walls between 3 m and 3.6 m in height will be noticeable, but not to the extent that the visual appearance would justify the refusal of the application. 14 As I understand, the location of the closer objectors (with the exception of Macauley Street) have the same Regional Centre commercial zoning as the site. 15 Other issues related to the potential anti-social behaviour of patrons leaving the subject site, and also potential anti-social behaviour when congregating on the site. Again, I acknowledge that this could occur, however I am not convinced that it would be fair and reasonable to reject an application on the basis of what might happen, particularly when the Court is considering only the additional operating hours. 16 Notwithstanding the concerns expressed by the local residents, I do not accept that any substantive reason has been provided that would not allow the granting of consent orders in this matter. 17 Consequently, the Orders of the Court are; 1. The appeal is upheld. 2. The application to modify Development Consent No. 14593/2003 (and as modified by consent No. 15051/2004) for alterations to the operating hours of a KFC restaurant and a car wash be further modified pursuant to the conditions marked in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1, 4 and 6. 4. No order as to costs. ____________________________ G T Brown Commissioner of the Court ljr 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.