Land and Environment Court of New South Wales CITATION : B & N Elomar Engineering Pty Ltd v Camden Council [2005] NSWLEC 537 APPLICANT B & N Elomar Engineering Pty Ltd PARTIES : RESPONDENT Camden Council FILE NUMBER(S) : 10255 of 2005 CORAM: Nott C Development Application :- Construction of a large industrial building - overshadowing of chicken sheds - drainage and noise. KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 DATES OF HEARING: 25/07/2005 and 26/09/2005 EX TEMPORE JUDGMENT DATE : 09/26/2005 APPLICANT Mr A. Seton, solicitor of Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Mr G. Castellan, solicitor of Ritchie & Castellan JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 26 September 2005 10255 of 2005 B & N Elomar Engineering Pty Ltd v Camden Council [2005] NSWLEC 537 JUDGMENT 1 This is an appeal against the council's refusal of a development application to erect an industrial building at No. 546 Camden Valley Way, Smeaton Grange. 2 The application was originally set down for an on-site hearing, by which time the council had agreed that it would enter into consent orders, subject to the Court hearing from the adjoining neighbour who runs a chicken business with two sheds located close to the proposed industrial building. 3 At the on-site hearing, I heard evidence from that owner Mr Victor Vella and from a Doctor of Veterinary Science, Dr J Sillince. 4 The matter was adjourned on the same day as the on-site hearing to the council offices for further evidence and I received evidence also from council officers involved with the carriage of the matter. For the applicant evidence was given by Mr Warwick Gosling, town planner. 5 The adjoining neighbour, Mr Vella, was concerned particularly about the impact of overshadowing on the chicken sheds, and other matters were raised relating to drainage and noise. 6 As regards overshadowing, the appeal was adjourned and overshadowing diagrams were obtained. These diagrams indicated that the overshadowing would not be as great as what Mr Vella originally thought. 7 Building two, which is further from the proposed industrial building, will not be overshadowed by the proposal. 8 Building one, however, will suffer some overshadowing, which is not insignificant, in midwinter. This may have some effect on the way Mr Vella manages his chicken-rearing business. It is likely to result in some additional cost because of extra heating required when the chickens are less than four weeks of age in midwinter. 9 Mr Vella also referred to certain other problems such as odour and the build up of condensation which can occur if there is not proper ventilation and desirably some sunlight penetrating the chicken shed. 10 In considering the question of overshadowing I have taken into account the fact that it appears that the subject land towards its eastern end has in the past been built up, perhaps up to 2 m higher than the immediately adjoining parts of Mr Vella's land. 11 Because the subject land slopes down from the road, it means that the proposed building, which is quite a long one, will have to be in excavation towards its western end, and towards the eastern end there will have to be some filling that will take place on the already apparently elevated area of the subject land. 12 Towards the eastern end, the subject land is at about RL 90 and it is proposed to introduce fill, probably from the cut area of the subject land, so as to form a ground-floor level at RL 92. The uppermost parts of the roof are at about RL 106. 13 As submitted by Mr Seton for the applicant, the proposal is not built right on the common boundary of the subject land and of the adjoining property of Mr Vella, but it is set back 5 m from the common boundary. To some extent this ameliorates the impact that might otherwise occur. 14 As well, I suggested during the hearing that the building could be reduced in height by 500 mm by having additional cut towards the western end and lowering the whole floor and all roof elements by 500 mm, so that overshadowing on the roof of the first chicken shed would be reduced by a little over a metre in horizontal extension. 15 That suggestion was taken up by the applicant, and it is proposed that there be an amended condition relating to the lowering of height of the building and consequential minor changes to the levels of the driveway, access, parking areas and inlets for the drainage system. 16 Although there will be some adverse impact on the adjoining property of Mr Vella, I am of the opinion that the proposal should be approved, having regard to the fact that the council also supports the granting of consent. 17 The subject land, as well as Mr Vella's land, will be part of the Smeaton Grange industrial estate. Regard should be had to the future and intended use of the subject locality, which at the present time is largely semi-rural in nature, at least in the locality of Mr Vella's land. This is likely to change in the future when an access road is provided from Anderson Road proceeding more or less northward behind the subject land. But when that access road is provided, it is then intended that the access for the subject proposal which will not be permitted to Camden Valley Way, will be changed so that there will be access available at the rear of the subject land. 18 More importantly, a permanent and different solution for the drainage of the subject land will be able to be implemented in accordance with conditions of consent so that the drainage goes to the new road network. 19 Meanwhile, it is important from the neighbour's point of view that there be a proper drainage system because water now naturally flows from the subject land sometimes via dams on the Landcom land immediately below the subject land and then to Mr Vella's land and to his dam. That water is in more or less its natural state but there could be pollutants or contaminants from the proposed use which would affect the water in Mr Vella's dam. That water is sometimes used as an emergency supply for the needs of the chickens. 20 Accordingly, that water should not be polluted by the construction of the proposal or by the operations of the development once it has been constructed, and conditions of consent have, since the on-site hearing, been formulated. I have heard evidence today from a consultant civil engineer specialising in hydrology and also from the council's engineer and the proposal as now put forward is acceptable both to the council and to the applicant's engineer. 21 However, more detailed engineering designs will have to be provided in accordance with the concept plans and the particulars set out in the conditions of consent that have been drafted. 22 It is also important that noise generated from the construction of the proposed development or from its operation should not be so loud or so irregular and piercing, as to cause problems for the chickens. 23 As was explained at the on-site hearing, the chickens are free-ranging within the sheds and if there is a sudden and extremely loud noise, the chickens could all run in the one direction towards a wall and many of them be seriously injured and many killed. 24 To overcome this problem, in accordance with an acoustic report of Aitkin's Acoustics, a series of recommendations will be incorporated in the conditions of consent. These recommendations appear mainly at 7.1 of that report. 25 Although the proposed industrial building will causing some overshadowing, the building has the advantage that its back faces towards Mr Vella's land and there are no openings on the side facing his land. 26 In the circumstances, I propose to grant development consent in accordance with the agreed conditions. Accordingly, the orders of the Court by consent are: 1. The appeal is upheld. 2. Development consent is granted to DA 1601 2003 at No. 546 Camden Valley Way, Smeaton Grange subject to the conditions in annexure A hereto. 3. The exhibits, other than exhibits 7, 8, B, H, J, K, N, O, P, may be returned. ____________ A J Nott 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.