Land and Environment Court of New South Wales CITATION : Deemco Pty Ltd v Campbelltown City Council [2008] NSWLEC 1469 APPLICANT Deemco Pty Ltd PARTIES : RESPONDENT Campbelltown City Council FILE NUMBER(S) : 10175 of 2008 CORAM: Tuor C Development Application :- construction and operation of a gaseous products manufacturing, storage and distribution facility KEY ISSUES: impact on residential amenity by perception of hazard visual impact SEPP 1 for acoustic wall within setback area for railway Environmental Planning and Assessment Act 1979 Campbelltown (Urban Area) Local Environmental Plan 2002 Campbelltown (Sustainable City) Development Control Plan 2007 LEGISLATION CITED: Development Control Plan No 52 – Off Street Car Parking Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 1 State Environmental Planning Policy No 33 – Hazardous and Offensive Development Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment Broad v Brisbane City Council (1986) 59 LGRA 296 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 CASES CITED: Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301 Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345. DATES OF HEARING: 05/09/2008 and 08/09/2008 DATE OF JUDGMENT: 20 November 2008 APPLICANT Mr G. Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 20 November 2008 10175 of 2008 Deemco Pty Ltd v Campbelltown City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of a development application (1456/2007/DA-DE) under the Environmental Planning and Assessment Act 1979 (EP & A Act) by Campbelltown City Council (the council) for the construction and operation of a gaseous products manufacturing, storage and distribution facility at 10-13 Phiney Place, Ingleburn (the site). 2 The issues identified by the council relate to the visual impact of the proposal, the construction of a noise barrier within 30m of the main southern Railway line and the fears and concerns of residents about the hazards of the development. The site and its locality 3 The site comprises three allotments (lots 13 & 14 DP1071594 and lot 1 DP 182766) and has an area of 21,418 sqm. It is located at the head of the Phiney Place cul de sac within a recent industrial area. The site has been filled and contoured to provide a relatively flat area. It is vacant and has no significant vegetation. The site is bounded by the Main Southern Railway (the Railway) to the south east, Bunbury-Curran/Bow Bowing Creek (the creek) to the north and industrial properties to the west. 4 Adjoining and nearby development includes new factory buildings and vacant industrial land. The nearest residential development is located about 110m from the site at Railway Parade, Macquarie Fields, on the opposite side of the Railway adjoining Milton Park. 5 The Macquarie Links Golf Course and residential development are to the north, on the opposite side of the creek. The proposal 6 The proposal is described in detail in the Statement of Facts and Contentions. In summary the proposal is for the construction and operation of a gaseous products manufacturing, storage and distribution facility. The main components of the facility are: · Building A – LPG dock · Building B – workshop/cylinder test and repair · Building C – Office and customer sales · Building D – Acetylene production area · Above ground gas tank farm (four tanks) for storage of refrigerated liquid oxygen, nitrogen, argon and carbon dioxide. · Below ground tanks (three tanks) for the storage of LPG · parking for 45 cars. 7 The facility will operate 24 hours per day 7 days per week. It will be constructed in three stages. The planning controls 8 The proposal is designated development under the Environmental Planning and Assessment Regulation 2000. State Environmental Planning Policy No 33 – Hazardous and Offensive Development and Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment apply to the site. 9 The site is within Zone 4(a) General Industry Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). The proposal is permissible with consent within this zone. The objectives of the zone are set out in cl 12(2) as: ( a) to encourage activities that will contribute to the economic and employment growth of the City of Campbelltown, and (b) to allow a range of industrial, storage and allied activities, together with ancillary uses, the opportunity to locate within the City of Campbelltown, and (c) to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development, and (d) to protect the viability of the commercial centres in the City of Campbelltown by limiting commercial activities to those associated with permitted industrial, storage and allied development, and (e) to ensure development will not be carried out unless the consent authority is satisfied that the processes to be carried on, the transportation to be involved, or the plant, machinery or materials to be used, do not interfere unreasonably with the amenity of the area. Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. 10 Clause 37 of the LEP provides: Setbacks within industrial areas Consent must not be granted to development, other than the use of land for landscaping, for access roads and for off street parking, on any land within Zone 4 (a) or 4 (b) which is within: (a) 30 metres of the main southern Railway line….. 11 Mr Seton, for the council, submits that the proposed acoustic wall does not comply with this control. Mr Green, for the applicant, does not accept that the control applies to the acoustic wall as it is either ancillary to the proposed industrial use or is landscaping and therefore within the exemption under cl 37 for landscaping. However, the applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1). It is not necessary to adjudicate on whether a SEPP 1 objection is required as, for the reasons discussed latter in this judgment, I have accepted that the SEPP 1 objection is well founded. 12 Campbelltown (Sustainable City) Development Control Plan 2007 (the DCP) applies to the site. 13 Development Control Plan No 52 – Off Street Car Parking is also relevant in relation to the provision of car parking for the development. The evidence 14 The Court visited the site and heard evidence from a number of residents. Their evidence is summarised in Exhibit 15. The key concern of the residents if the safety of facility and its visual impact. 15 Town planning evidence was provided by Mr L Fletcher for the applicant and Mr M Brown for the council. Mr P Dryden provided evidence for the applicant on the risk and safety of the proposal and participated in a joint report with Dr J McCracken, for the applicant and Mr G Peach, for the council on this issue. 16 For the applicant, Mr G Chambers, provided evidence on lighting issues and Ms N Sonter provided evidence on landscaping. 17 The following joint reports were provided by: · Dr D Martens and Mr D Brewsher, on flooding issues. · Dr D Martens and Mr M Shaw, on stormwater quality issues. · Mr S Gauld and Mr R Tonin, on acoustic issues. 18 These experts were not required for cross examination as the issues between the parties were resolved subject to the imposition of conditions. The acoustic experts recommended that a 5m high noise barrier be constructed on the southern boundary of the site. While this addressed the noise issue between the parties, council raised the contention that the wall did not comply with cl 37. Hazard 19 Contention 8 of the Statement of Facts and Contentions included the particular that: The adverse impact on the residential amenity in the area and the potential hazard impacts of the development results in the site not being suitable for the proposed development having regard to its close proximity to residential premises. 20 The contention also stated that inadequate information had been provided with the Preliminary Hazard Analysis (PHA) to enable assessment of the application. 21 The submission of further information and the joint report between Mr P Dryden, Dr J McCracken and Mr G Peach addressed this contention. Council did not press the issue that the proposal posed an unacceptable hazard to the adjoining area including the residential development and the Railway line or that there was inadequate information. 22 However, council contends that residential amenity would be adversely affected by the residents' perception of hazard from the development. Mr Seton submits that the residents' submissions (49 objections including two petitions with 473 signatures) must be considered and that these submissions were reasonable and should be given significant weight. All the submissions raised concerns about the hazard and proximity of the proposal to residential development. 23 Although the PHA had been agreed by the experts to be adequate, Mr Seton submits that a lay person reading the PHA and the joint report would not be confident about the safety of the facility and it would therefore be rational and justified to be concerned about the development. 24 Mr Seton referred to inconsistencies and inadequacies within the PHA, such as Figure 8 – Fatality Risk Contour which has not been updated to reflect the amended design; the incident history did not include examples of incidents that were referred to in residents' submissions and there are no criteria for the rail corridor. In particular Mr Seton's referred to the use of the word "should" rather than "will" in the conclusion of the PHA as an indication that it was reasonable for residents not to be confident in the safety of the facility. The conclusion states: Based on the analysis undertaken in this PHA it can be safely concluded that, with the proposed and recommended safeguards in place as detailed in this report, the proposed development should be compliant with all relevant risk criteria and that there should be no significant risk to people or property rising from the operation of the facility. It is therefore not hazardous development as defined in SEPP 33 and, from a land use safety point of view, there is no reason why the proposed development should not be granted consent. 25 Mr Seton questioned Mr Dryden on each of these matters but did not seek to question either Mr Dr J McCracken or Mr G Peach who also supported the conclusions of the PHA. 26 Mr Seton submits that in determining a development application the consent authority must consider the effect of the proposed development on the amenity of an area and that the concept of "amenity" is wide and flexible. He relies principally on the judgment of the Supreme Court of Queensland in Broad v Brisbane City Council (1986) 59 LGRA 296 where Thomas J at 299 explains: The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. 27 Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity, as explained by de Jersey J in Broad at 305: There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity. 28 Further to assess the impact on amenity de Jersey in Broad at 304 states: In determining the likely effect on a proposed development on the amenity of a neighbourhood the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident's view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use. In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area a judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete, likely effects of the proposed development. But, as I have said, I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in the end a judge may accord them little weight. 29 Mr Green accepted that in determining impacts on amenity resident evidence must be considered but he did not accept the significant weight, which Mr Seton attributed to it in this Appeal or that community evidence would override that of the experts. Both he and Mr Seton referred to a number of decisions including Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345. 30 In particular, Mr Green referred to the decision of Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 which provides a useful summary of the perception of the effects on amenity and health. His Honour states at 195 that: A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act. 31 Mr Green submits that there is no rational or justified foundation to the fears and concerns of the residents about the hazards of the proposal. The evidence of the experts, including council's expert, do not raise a concern about the safety of the proposal and accept that it can be operated in a manner that will meet the relevant risk criteria. He states that a number of the concerns raised in the resident objections were "mistaken in their accuracy" and based on a misunderstanding of the size and nature of the acetylene plant, which is minor component of the development. The residents were also unaware that the LPG tanks are below ground which significantly reduces their risk. 32 Mr Green submits that Contention 8 raised concerns about the adequacy of the PHA and the need for further information, which was addressed to the satisfaction of the experts, and council did not press this issue. Mr Dryden, in cross examination, dealt with the further matters raised by Mr Seton, but not by council's expert. He explained that the use of the word "should" reflects that it is not possible to guarantee or eliminate risk altogether. While residents may not be confident about the safety of the facility there is no reasonable basis to reach this conclusion given all the experts have agreed that the PHA is adequate and accepted that from a land use safety point of view, there is no reason why the proposed development should not be granted consent. Findings 33 I accept Mr Green's submission. It is common ground between the parties that a consent authority must consider the effect of a proposed development on the amenity of the locality and on the framework within which this must be assessed. However, they disagreed on the weight that should be given to resident evidence in determining amenity impacts. 34 The concept of amenity is broad and includes practical and tangible factors as well as residents' perception of the locality. The submissions made in response to the development application are relevant to consider in determining the nature and scope of amenity and the impact of the proposal. However, as stated by Preston CJ in Telstra at 193 and 195 …. in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality. …… A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act. 35 In this case the residents' perceptions about the hazard posed by the facility and the safety risk to their locality are without justification in objective, observable, likely consequences. The claimed effects are unsubstantiated and without reasonable evidentiary foundation (Telstra at 196). 36 The concerns of the residents do not relate to intangible matters. Rather, the concerns relate to matters which are capable of measurement and testing against established standards to see whether the concerns are justified or not (Telstra at 197). The PHA has assessed the proposal against the relevant criteria and recommended safeguards to meet these criteria and minimise risk to people and property arising from the operation of the facility. The experts accept the adequacy of the PHA and raise no issue with the adequacy of the information. 37 The proposal will manufacture, store and distribute gaseous products that are "dangerous goods". The development is designated development and the EP & A Act and its Regulations establish a framework for the assessment of such applications to minimise risk. The proposal has been assessed in accordance with this framework and meets the relevant criteria. It is impossible to eliminate risk but I am satisfied that the proposal poses an acceptable risk and is a land use that is consistent with what is anticipated for the 4(a) Industrial zone. I accept that the residents have concerns and a perception of risk that may impact on their amenity. Whilst these views should be considered, they can be given little, if any, weight when balanced against the evidence of the experts. Visual impact 38 Mr Brown and Mr Fletcher agreed that residential properties would be able to view the development but that these views would be limited. They stated that it is reasonable to expect the site to be developed for some form of employment based industry given its industrial zoning and the development that has occurred on other sites within the Ingleburn Industrial Estate. The experts stated that: Given the separation distance from residential properties, the design of the project and the existing and proposed landscaping, it is agreed that the visual impact of the proposed development is appropriate and acceptable during daylight hours. 39 Mr Brown's key concerns about visual impact related to the 24 hour operation of the site and the use of lighting. He was concerned that no lighting details were submitted with the application. 40 In response to these concerns Mr G Chambers, prepared a preliminary lighting design (Exhibit F) and provided evidence that the proposal could comply with the relevant Australian Standard AS 4282 (1997). He noted that the 5m high acoustic wall would also provide benefits in eliminating light spill to residential properties. 41 Mr Chambers acknowledged that the "glow" from the site would be visible from residential areas but that this would be similar to the lighting of streets and that it would not be obtrusive. 42 The Applicant has agreed to a condition, which requires the submission of a final lighting plan that complies with AS 4282 (1997) and certification that there will be zero lux at any residential boundary as a result of the development. 43 The residents and the representatives of the Macquarie Golf Links also raised concerns about the visual impact of the proposal, particularly the storage tanks which are 12.5m high. 44 Ms Sonter stated that the proposed landscaping would provide an effective visual screen which would take about 6 to 9 years to be established. She noted that existing landscaping would also screen the development and that the tanks would be seen within the landscape setting that currently exists. 45 Mr Fletcher noted that the tanks would not protrude above the hills around Campbelltown or the skyline and would be viewed against a backdrop of existing vegetation and screened in the foreground. Both he and Mr Brown considered that there would be some views of the tanks but that this is not unreasonable given the site is within an industrial area. Findings 46 I accept the evidence of the experts that the proposal will have an acceptable visual impact. 47 A condition of consent requires that the lighting comply with AS 4282 (1997), which is the relevant standard to ensure that there are no obtrusive effects from outdoor lighting. 48 The existing and proposed landscaping will largely screen and soften the proposal. It will take time for the landscaping to be established and the tanks will be visible from some vantage points. However, this is not unreasonable given that the site is zoned industrial and it is not necessary to completely hide the development. Acoustic wall 49 The acoustic experts recommended a 5m high noise barrier along the southern boundary. Due to the 24 hour operation of the facility the noise barrier is required to ensure that noise levels meet the criteria established by the NSW Industrial Noise Policy for the dwellings on the opposite side of the Railway line. 50 The noise barrier is designed as a broken acoustic wall approximately 180m long generally setback about 15m from the boundary of the site with landscaping. Mr Fletcher and Mr Brown agreed that the wall would be within 30m of the Railway and therefore did not comply with cl 37. They disagreed on where the Railway should be measured from and therefore the degree of encroachment. Mr Fletcher considered that the measurement should be from the actual Railway line as the "line" is referred to in cl 37. Mr Brown considered it should be measured from the zone boundary, which is also the boundary between the site and the Railway. The experts agreed that the different methodologies did not materially change their conclusions. I have accepted Mr Brown's interpretation, which presents a worst case scenario. 51 Mr Brown and Mr Fletcher agreed that the purpose of the standard is not clear but is either for safety reasons or to provide a visual buffer. They also accepted that the underlying purpose could include protection of adjoining land uses from Railway impacts, such as noise. 52 The experts agreed that the encroachment of the wall is consistent with the underlying objectives of safety and protection of adjoining land uses. They disagreed on whether the wall met the objective of providing a visual buffer. 53 Mr Brown considered that the wall is only necessary for the 24 hour operation of the facility and not as part of the landscaping and therefore conflicts with the objective of providing a visual buffer. He considered it was "foreign to the area and there are no other acoustic walls of the length and height along the whole of the Southern Railway Line". He stated that the development, being the wall, did not uphold the broader planning objectives for the locality as expressed in the objectives for the zone. 54 Mr Fletcher prepared the SEPP1 objection. He considered that the wall was setback sufficient distance to provide landscaping. The wall and the landscaping will screen the development and provide an effective visual buffer. The wall also has the benefit of restricting the spread of light and is a necessary and integral part of the development as a whole, which meets the objectives for the zone. Findings 55 I accept the evidence of Mr Fletcher. All the proposed industrial buildings are setback at least 30m from the southern boundary and the Railway zone. The acoustic wall is within the 30m setback area but is sufficient distance from the Railway reservation to provide landscaping. 56 The wall is required to meet acoustic criteria and will also limit light spill. Mr Seton was critical that the wall is an afterthought and submits that that the development should be redesigned to locate the wall and the buildings outside the 30m area. I do not accept this submission, as the impacts of the wall are acceptable and its location meets the objectives of the standard. 57 The separation distance and the landscaping are adequate to provide an effective visual buffer between the Railway and the industrial buildings. The wall, although significant in height and length will screen the development and will itself be screened by landscaping. It will intrude into the setback area but will still meet the underlying purpose of the standard. Strict compliance with the standard is therefore unnecessary and unreasonable and the SEPP 1 objection is well founded. Conditions 58 The conditions are agreed between the parties. I have amended condition 61 to delete the noise limits in the General Terms of Approval from the Department of Environment and Conservation and replace them with the noise limits agreed to by the acoustic experts. 59 Condition 59A is also amended to delete the reference to the noise control measures in the Benbow Environmental Impact Statement (EIS) and the Joint Conference Report of the acoustic experts. The EIS measures have been replaced by the measures recommended by the acoustic experts which are incorporated in Conditions 23B, 23C and 23D. Condition 59A is amended to refer to these conditions. Orders 60 The orders of the Court are: 1. The appeal is upheld 2. The development application (1456/2007/DA-DE) for the construction and operation of a gaseous products manufacturing, storage and distribution facility at 10-13 Phiney Place, Ingleburn is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, A and G, are returned. ___________________ Annelise Tuor Commissioner of the Court 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.