Land and Environment Court of New South Wales CITATION : Newcastle City Council v Leaway Pty Limited & Anor [2004] NSWLEC 642 Newcastle City Council (Appl) PARTIES : Leaway Pty Limited (1R) Wayne Paddison (2R) FILE NUMBER(S) : 40284 of 2004 CORAM: McClellan CJ Injunctions and Declarations :- Use of premises KEY ISSUES: Non-compliance with development consent Application for further suspension of a retraining order LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23 August 2004 EX TEMPORE 08/23/2004 JUDGMENT DATE : J Maston/M Seymour (Appl) Sparke Helmore (Sol - Appl) LEGAL REPRESENTATIVES: S Berveling (Resps) McDonald Johnson (Sol - Resps) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN J MONDAY 23 AUGUST 2004 40284/04 NEWCASTLE CITY COUNCIL v LEAWAY PTY LIMITED JUDGMENT 1 HIS HONOUR: This matter comes before me today on the application of the respondent to further suspend an order which I made on 29 June 2004. That order was in the following terms: "The first and second respondents, by themselves, their servants and agents, be restrained from using Lot 1 DP 982092, Lot 1 DP 909299, Lot 4 DP 666964, Lot 4 DP 666965 and Lot 3 DP 668145, known as 55 Throsby Street, Wickham, as a waste management facility or waste transfer station or otherwise than in accordance with the development consent granted by the applicant to development application 00/1738 without development consent being obtained for such uses as pursuant to Part 4, Environmental Planning and Assessment Act 1979." 2 On 29 June 2004 when I made the order, I published my reasons for the form of the order which I then was prepared to make. In those reasons I said as follows: "This matter came before me this morning on the application of the council seeking orders by way of declaration and injunctions in relation to the alleged illegal operation of premises at 55 Throsby Street, Wickham. The allegation is that the premises are being used as a waste management facility or waste transfer station without consent. A consent was granted in September 2000 for the 'storage, sorting and distribution of secondhand building materials' but the council alleges that the materials being stored and re-distributed from the site extend far beyond those which were contemplated by the consent granted. When the matter was called this morning, the respondent indicated through its counsel its acceptance that orders should be made restraining the use of the property in the manner sought by the council. However, the respondent has apparently entered into negotiations to provide the present facilities on alternative premises which it believes are more appropriately zoned and located for the nature of the activity that it carries on. I understand that it will be many months before a lease can be finalised in relation to those premises and any necessary consents obtained from the council. In those circumstances, the respondent indicated that although it agreed to order 1 restraining the activity, it would seek a suspension of that order for a period of eight months to allow the relevant negotiations to take place. The council opposed a stay for that period of time but indicated through its counsel that it would agree to the order being suspended until 12 August 2004. The council's present position is that after that date, the use of the subject premises should be brought into conformity with the consent. Counsel for the respondent conceded that there are problems of the type identified by the council which relate to the presence of vermin, interference with the amenity of the neighbouring properties by reason of vibration and noise, and also odour problems in the present operation of the premises. However, the respondent does not concede that the problems are to a level such as the council alleges. It was also indicated to me that further steps are proposed to be taken to endeavour to eliminate the problems from the current operation. Having regard to the concessions made, I indicated that my present thoughts were that it would be most unlikely that the respondent could persuade me that a stay for a period of eight months is acceptable. Having regard to the fact that the council conceded a stay for a period of now approximately six weeks, I indicated that it may be appropriate for the parties to have discussions about the course which should now be taken. Those discussions took place and the parties have agreed that I should make the orders originally contemplated and suspend the injunction until 4pm on 12 August 2004, granting liberty to either party to restore the matter to the list for the purpose of re-considering whether the order suspending order 1 should be varied. It seems to me this is a suitable course. It allows for the activity to continue for a short time after which, and in accordance with, the current orders, any illegal activity on the site must cease. However, it also provides an opportunity for either party to approach the Court to have the order varied should the alleged problems continue and are of such a magnitude as to justify going back to Court. It also provides the opportunity for the respondent to seek to persuade the Court at some future time that a further extension should be granted. In saying what I said this morning, I should not be understood as in any way indicating the fate of any such application, nor that I would encourage such an application to be made. However, it seems to me that the regime that the parties have adopted and consented to is a sensible one at this stage of these proceedings." 3 When I made the order in this matter, there was evidence before me which indicated that the respondent would seek to obtain development consent which would enable it to carry out its present activities on a more appropriate site. At that stage, the evidence suggested that such a site was in prospect. 4 On the day on which the order suspending the orders I made expired, the respondent came before me seeking further time. I further suspended the order until today so that the parties would have an opportunity to bring evidence in relation to whether or not a further suspension was appropriate. That evidence has now been tendered and I am satisfied of the following matters: 5 Firstly, the respondent has made arrangements to relocate its activities to another site but has not been able to progress the preparation and lodgement of a development application. Indeed the evidence persuades me that until very recently, the respondent had not appreciated that the development it proposed on the alternate site would be designated development requiring the preparation of an environmental impact statement and a lengthy process of consideration. 6 Secondly, some of the more offensive elements of the activity which has been occurring on the subject site have now ceased or have been significantly reduced. I am satisfied that reasonable efforts have been made to deal with the rat problem, although I am also satisfied that green waste, as it has been referred to, is still being received at the site from time to time. 7 Thirdly, the impact from noise has not been significantly reduced from that which was occurring when I first made the orders in these proceedings. 8 Fourthly, the impact of vibration from equipment being used on the site has not diminished, with the consequence that legitimate complaint is still being made by neighbours of the impacts of the operation upon the amenity of their dwellings and other commercial activities. 9 The consent which was granted by the council for the present site was determined on 27 October 2000. It provided consent for alterations to the existing building and use of the storage, sorting and distribution of second hand building materials. I am satisfied that the activity, but to the extent that green waste is coming to the site, meets that description. 10 Condition 4.6 of the original consent provided that the activity could continue if there was: "No interference with the amenity of the neighbourhood by reason of the emission of any vibration, fumes, smoke, vapour, steam, soot, ash or dust, or otherwise as a result of the proposed development." 11 It is this condition which I am satisfied continues to be breached having regard to the evidence which is before me today. 12 The respondent seeks a further suspension of the order which has been made but subject to conditions. The effect of the conditions is that the current activity will continue and, for a limited time, will be able to produce noise at the boundary of the site not greater than LAEQ 15 min 60 DBA. In addition, the level of vibration from the activity will be confined by a requirement that the vibration calculated at the boundary of the site closest to the premises not exceed 1 millimetre per second more than four times in any one hour and not exceed 2.5 millimetres per second at any time. 13 The order providing for the suspension takes the form of two steps. The second step contemplated as occurring in three weeks would have the effect of further limiting the noise emitted from the premises so that it would not be greater than LAEQ 15 min 51 DBA after a period of about three weeks. This level is defined by reason of a council noise abatement notice which requires the premises to operate in a manner which conforms to that sound parameter. I have been informed that such a notice has been issued and there was no appeal. As a consequence, the obligation to meet a maximum of 51 DBA is presently in force. 14 The vibration requirement is derived from the work of a consultant engaged by the council who has provided evidence as to the level of vibration which he believes conforms to an appropriate standard, being the standard necessary to protect the amenity of the adjoining properties. 15 Finally, I am unable to form any view as to when, if at all, it is likely that the respondent will be able to relocate its present activities to alternate premises. Having regard to the evidence before me, I am not confident that this could be achieved within a period of six months or indeed within any determined time. In these circumstances, I am not prepared to grant any further suspension of the order which I made on 29 June 2004 but for a short period of time. 16 The submission put before me on behalf of the respondents is that it is possible now to further modify the activities on this site to meet very strict noise and vibration controls and manage the facility so that only material contemplated under the original consent will be brought to and handled on the site. If the respondents are genuine in their submission that the premises can be effectively controlled in the manner now suggested and thereby remove any adverse impact on the amenity of adjoining properties, I believe it appropriate to now require the respondents to meet the obligations imposed by the consent or the activities must cease. 17 The reason why the respondents sought that the further suspension of the order be made in two stages was because it is believed that it will be possible to reduce the impacts on the adjoining properties by utilising a rubber-tyred machine to move the materials on the site. It is believed the present track machine is more noisy than a rubber-tyred machine and that if the rubber-tyred machine is further modified, I assume either in relation to its bucket or other facilities or perhaps attenuation of its exhaust noise, it will be possible to comply with a 51 DBA requirement. 18 I accept that by reason of current commercial obligations it may not be possible for the respondents to immediately provide suitable equipment. However, having regard to the extent to which I am satisfied the neighbours have suffered now over months, if not years, I believe it appropriate to require the premises to operate in accordance with the consent within a very short time-frame. I am prepared to allow a further suspension of the order until the end of this month to enable the respondents, if they can, to hire or acquire alternative equipment suitably attenuated which might enable the activity to continue in compliance with the consent. However, in the circumstances I am not prepared to allow any further suspension of the orders. 19 Accordingly, the order which I make will be that the order made on 29 June 2004 is further suspended until 4 pm on Tuesday 31 August 2004. I am satisfied that it is appropriate for the respondents to pay the applicant's costs and I so order. ********** 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.