Land and Environment Court of New South Wales CITATION : D & H Kane Investments Pty Limited v Ashfield Municipal Council [2007] NSWLEC 504 APPLICANT D & H Kane Investments Pty Limited PARTIES : RESPONDENT Ashfield Municipal Council FILE NUMBER(S) : 10119 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- Car wash and vacumming facility, impacts on residential amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 1985 DATES OF HEARING: 10/07/2007 and 11/07/2007 EX TEMPORE JUDGMENT DATE : 11 July 2007 APPLICANT Dr S. Berveling, barrister Instructed by A. Perkins of Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 10 July 2007 10119 of 2007 D & H Kane Investments Pty Limited v Ashfield Municipal Council JUDGMENT 1 This is an appeal against the deemed refusal of Development Application No. 10.2006.310, which is for a car wash and vacuuming facility including advertising signs at 412-416 Liverpool Road, Corydon. Vehicular access to the site is off Liverpool Road and egress is via Wetherill Street. 2 Subsequent to the lodgement of the appeal and having taken into account expert evidence and further information provided by the applicant, the council decided that conditional development consent should be granted. Those conditions include a condition requiring that the facility can operate between the hours of 7am and 7pm seven days per week. 3 The applicant opposes this condition and seeks to have it extended to allow operation until 10pm seven days per week. However, should the council's condition requiring cessation of activities on the site at 7pm be imposed by the Court, the applicant objects to certain noise mitigation works and restrictions on use of certain wash bays. I understand that these requirements are those sought by the noise experts to ensure that residential amenity in Wetherill Street is not adversely affected between 7pm and 10pm. Subject to the Court agreeing to the operating hours being from 7am to 10pm, the applicant does not oppose the remaining conditions in Exhibit K. 4 The vacant site is located on the southern side of Liverpool Road, on the south-east corner of its intersection with Wetherill Street, which street is closed in the vicinity of the west corner of the site. This prevents access from Liverpool Road into the residential part of Wetherill Street. 5 The site has an area of 1,208 square metres. Opposite the site, across Wetherill Street and adjoining the site to the south-east are two existing service stations that operate on a 24 hours a day basis. Opposite the site in Liverpool Road is a car repair and servicing facility. Adjoining the site to the south-west existing development in Wetherill Street comprises single storey detached dwelling houses. 6 The site is zoned 3(b), Special Business under Ashfield Local Environmental Plan 1985 and in this zone the proposal is permissible with development consent. The adjoining lands in Wetherill Street are residentially zoned. 7 When the application was advertised five letters of objection were received by the council. Matters of concern raised in these objections include the excessive late night hours of operation, which hours provide the potential for antisocial behaviour that will adversely affect residential amenity; the vehicular egress via Wetherill Street will cause noise and disturbance impacts, further adversely affecting residential amenity; the site needs to be staffed at all times; appropriate provision of the removal of waste should be provided; and the overshadowing of 15 Wetherill Street. 8 In relation to noise impacts, the Court had the benefit of the joint acoustic report prepared by Mr G Atkins and Mr L Challis. The Court also had the benefit of those experts' earlier individual reports. In their joint report they agreed that the operation of the facility should be limited to 7am to 10pm daily, subject to the imposition of a composite set of noise control conditions that they provided, which conditions are now incorporated into the draft conditions of consent. On this basis Mr Challis and Mr Atkins conclude that the operation of the proposed car was is unlikely to give any adverse noise impacts at the nearest or other residential properties in the immediate vicinity. 9 The respondent nevertheless submitted in effect that the facility should close at 7pm in order to ensure the protection of the amenity of the residents in Wetherill Street. I was particularly invited to take into account their written concerns and their concerns that were expressed to me whilst on site, including their concerns about possible antisocial behaviour that could occur on the site and which could result in noise impacts over and above those considered by the experts. Those concerns are particularly important when considering the relatively quiet character of Wetherill Street between the hours of 7pm and 10pm. 10 The applicant invited the Court to take into account the evidence of its consultant town planner, Ms K Gordon and take also into account the various conditions of consent that will control the manner of on site activities and noise generation and which together indicate that the amenity of the neighbours would not be so adversely affected as to require the earlier cessation of on site activities. 11 More particularly Ms Gordon pointed out that noise from car audio systems, one of the matters of concern to the residents is unlikely to be problematical whilst cars are being washed given that the car doors will be closed. Whilst such audio systems could be problematical when cars are being vacuumed this is, she explained, unlikely to cause a problem given that any such noise will be captured by the enclosing nature of the building in which this facility is situated. Also during this period there will be a site manager who will have the specific task of ensuring the appropriate behaviour of customers. Signage requiring appropriate behaviour will be provided, as will closed circuit television coverage. 12 Ms Gordon also explained that 10pm is an appropriate time for closure, given that relevant noise standards accept that sleep time commences after 10pm, when background noise is typically lower and residents are much more sensitive to noise. She also referred to the fact that late night trading in this locality is not uncommon, noting the adjacent service stations that operate 24 hours per day. 13 My attention was drawn to the fact of the zone interface between this site and the residential zone. This is a consideration that operates in both directions. Whilst the development on this site needs to take into account the adjoining and nearby residential development by being sensitive to its amenity, conversely that residential development cannot expect the commercially zoned land to be unreasonably constrained in the interest of that residential amenity. 14 In my view I accept that an appropriate balance is likely to be achieved by the applicant's proposal, taking into account the matters explained by Ms Gordon and the proposed conditions of consent. I give particular weight to the conclusions reached by Mr Atkins and Mr Challis and to the particular conditions that deal with the permissible noise emissions from onsite equipment and the noise mitigating structures, as well as the conditions that require an onsite manager during the evening hours and an additional condition requiring the early closure of the front gate and the shutting down of equipment at appropriate times. 15 Despite these conclusions I do not accept that late trading, that is to say between 7 and 10pm should be permitted to occur on Sunday evenings and public holiday evenings. Whilst I have accepted that noise generated by the development is, during this evening period unlikely to adversely affect residential amenity, there will be some eighty vehicles exiting the site on most evenings and in my view this will have some additional impact and to provide some respite from this, evening trading on Sunday nights and the nights of public holidays should not be permitted beyond 7pm. 16 In addition, having spent some time considering the expert acoustic evidence, particularly the detailed evidence of Mr Atkins, I accept that the advice provided in the joint report is likely to be correct. But given some of the uncertainties that I have about the likely impacts on residential amenity, (those uncertainties deriving from the tables provided by Mr Atkins) in order to be assured that the impacts on the residential amenity in Wetherill Street is within reason, I have decided that the evening trading should be subject to a one year trial period commencing on the date of the occupation certificate. Hence I would invite the council to prepare the conditions based on Exhibit K with the additional conditions as agreed during the course of the proceedings plus a new condition H3(a), which enables the car wash facility to operate until 10pm Monday to Saturday for a trial period of one year, after which time the applicant can seek to have the longer trading hours imposed as a permanent condition, subject to satisfactory performance. 17 The Orders of the Court will therefore be that the appeal is upheld and development consent granted in accordance with the conditions in Exhibit K and with the additional conditions as I have just described. Exhibits J and K will be retained on the Court's file. ___________________ T A Bly Commissioner of the Court DK/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.