Land and Environment Court of New South Wales CITATION : Upper Hunter Developments v Muswellbrook Shire Council [2008] NSWLEC 1284 APPLICANT Upper Hunter Developments (Muswellbrook) Pty Limited PARTIES : RESPONDENT Muswellbrook Shire Council FILE NUMBER(S) : 10150 of 2008 CORAM: Brown C KEY ISSUES: Appeal :- modification of conditions of consent - fence construction - fence location - acoustic treatment of adjoining windows LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 11/06/08 EX TEMPORE JUDGMENT DATE : 11 June 2008 APPLICANT Mr G Williams, solicitor SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr A McKelvey, solicitor SOLICITORS Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 11 June 2008 10150 of 2008 Upper Hunter Developments (Muswellbrook) Pty Limited v Muswellbrook Shire Council JUDGMENT 1 This is an appeal against a decision of Muswellbrook Shire Council to modify development consent 488/2004, for a service centre development, at 139 to 145 Maitland Street, Muswellbrook. The service centre comprises a service station with convenience store, a restaurant outlet with drive through facilities and associated parking. 2 The land is currently vacant land following demolition of the previous structures in 2006 which formerly operated as a service station with ancillary buildings and comprised a motor cycle sale and repair premises, a car rental outlet, an upholstery business and a refrigeration air-conditioning business in three buildings. The sites consist of Lots 12, 13, 14 and 15 in DP 393848 and has a frontage of approximately 90 m to Maitland Street and a depth of approximately 40 m. 3 The subject site is immediately adjoined on its south eastern boundary by a motel developer known as Baybrook Motel, located at 147 to 151 Maitland Street. The site is surrounded on all sides by residentially zoned land. Developed along the rear boundary comprises six residential allotments immediately adjoining that boundary, each containing single residential dwellings with frontage to Acacia Drive and Eucalypt Avenue. Development joining the eastern boundary comprises a single residential development at 135 to 137 Maitland Street. 4 Leave was granted at the hearing to amend the application to include Condition 15, as a condition in dispute between the two parties. The three conditions in dispute are Conditions 2, 14 and 15. Condition 2 was amended by the Council on 12 December 2007 to state: "An awning constructed of materials and design consistent with that shown on drawing revision H1, prepared by HDB and dated 20/11/2007 is to be erected over the length of the driveway through component of the restaurant facility from the front of the building on the eastern side (the start of the drive through) to the rear of the building on the south western side (the end of the drive through being the last pick-up window). The awning may be opened on the side facing the loading dock and building. Amended plans demonstrating compliance with this requirement are to be submitted to the certifying authority for approval with the construction certificate." 5 The applicant proposed Condition 2 should state: "To an awning having a minimum length of 4.5 m and constructed of materials and design consistent with that shown on drawing revision H1, prepared by HDB and dated 20 November 2007 is to be erected in each of three points within the drive through component of the restaurant facility as shown on drawing revision H1, namely: (a) at the external water point at the front of the building on the eastern side (the start of the drive through) (b) at the order window at the rear of the building on the southern side (c) at the pick-up window at the end of the drive through on the southern side of the building in accordance with the dimensions and location shown for such awnings/canopies of drawing revision H1." 6 Condition 14 was amended by the Council on 12 December 2007 to state: "A 2.5 m high masonry acoustic barrier shall be installed along the southern, eastern and western boundaries of the allotment. A design of the fence is to be submitted and approved by Council's manager environmental services prior to the release of the construction certificate." 7 The applicant proposed that Condition 14 should state: "A 1.8 m lapped and capped fence shall be provided on the entire southern, eastern and western boundaries of the allotment. A design of the fence is to be submitted and approved by the Council prior to the release of the construction certificate." 8 Condition 15 states: "No intercoms or external speakers are permitted on site for the operation of the restaurant, or service station facility." 9 The applicant proposes that the following additional words be added to the end of Condition 15. These are: "Nothing in this condition precludes installation and operation of an external speaker facility at the order point in the drive through driveway." 10 The following residents provided oral evidence on site: o Mr Robert Oxford of 28 Acacia Drive o Mr Peter Pearce of 30 Acacia Drive o Mr Brendan Angel of 32 Acacia Drive o Mr Wal Keevers of 6 Eucalypt Avenue o Mr Greg Jackson for the Baybrook Apartments o Mr Russell Burlas(?) for the Baybrook Apartments 11 The concerns of the residents of Acacia Drive and Eucalypt Avenue related to retention of the existing Colorbond fence and opposition to any timber boundary fencing. The support for the construction of the Hebel block fence and light spillage. The representatives from Baybrook Apartments raised the following: o The impact of noise on the adjoining rooms. o The opposition of fencing that was not of Hebel construction. o Their agreement to the acoustic treatment of the three bedroom windows closest to Maitland Street at the full cost to the applicant. 12 The noise impacts of the proposed development were addressed in a joint report from Mr Neil Penningham for the applicant and Mr Ray Tumney(?) for the Council. There was agreement between the experts that if certain noise control measures are constructed then the proposed development would satisfy their agreed maximum noise levels generated by the proposed development. 13 Generally these noise control measures consist of: 1. That the provision of awnings over the order, payment and pick-up areas as previously shown but with an extension to the awning for the order area. 2. The provision of acoustic fencing to the southern boundary so that it is no less than 1.8 m above boundary ground level and not less than 3.8 m above the finish level of the apron at any level. 3. The provision of acoustic fencing along the eastern boundary commencing at the south east corner at a height of 2 m or 4.8 m above the existing apron and extending at the same height until the fence reaches a height of 2.5 m, being approximately 26 m. 4. The remaining area to Maitland Street requires an upgrade of the three bedroom windows in the Baybrook Apartments where no agreement is available by the owners of this property and extension of the fence at the previous level to near the alignment of the Baybrook Apartments. A range of specifications were provided for the proposed acoustic fencing by the acoustic experts. 14 Following the agreement of the acoustic engineers the remaining areas of dispute are: 1. What is the appropriate method of construction of the acoustic fencing. 2. Whether the acoustic fencing on the southern boundary should be located on the common boundary. 3. Whether the windows in the Baybrook Apartments should be acoustically treated. 15 On the issue of the appropriate method of construction of the acoustical fencing the residents in Acacia Drive and Eucalypt Avenue oppose the lapped and capped fencing. Their preference was for a Hebel block fence. The representatives from the Baybrook Apartments expressed a similar view. Brick or concrete blocks were also suggested as an alternative by the acoustic experts. However, there was no difference in the acoustical properties of the lapped and capped fence, the Hebel blocks, or the brick or blocks. 16 While costs estimates of different forms of fencing were provided by the applicant, I am not necessarily satisfied that this should be a major determinant in the appropriate type of fencing. In this case I am satisfied that lapped and capped fencing is the appropriate method of construction for a number of reasons: 1. It is consistent with the residential context. 2. Any of the acceptable materials would be inconsistent with the existing Colorbond fencing on adjoining properties. Lapped and capped fencing would appear as having no greater inconsistency than the other alternatives and in fact in my view was probably less inconsistent. 3. The responsibility for its ongoing maintenance rests solely with the applicant through the conditions of consent and particularly a positive covenant. 4. There is no benefit in prescribing another form of fencing when lapped and capped fencing achieves the same acoustical attenuation as the other alternatives. 17 On the issue of the location of the fence on the southern boundary I am not satisfied that there was any compelling reasons why the fence should not be located on the common boundary. This would be the position a fence should logically be located unless there were topographical or physical reasons why this should not occur. The desire to simply retain the existing Colorbond fence is not in my view a reason to have two fences, in fact it raises unnecessary substantial issues in relation to construction and ongoing maintenance, in my view for no good reasons, as well as limiting the area of landscaping. I note that the adjoining residents raised no objection to a Hebel block wall on the boundary. 18 The treatment of the fence adjoining the Baybrook Apartments near the street frontage should provide for the acoustical treatment of the three nearest windows in preference to a fence potentially some 4.5 m in height. A fence of this height would simply be unacceptable in the streetscape when viewed from Maitland Street. I note the acceptance of such treatment by Mr Jackson from Baybrook Apartments. I am also satisfied that the applicant's additional wording in Condition 15 is acceptable. I note there was agreement between the acoustic experts on additional words to support this condition. This Condition being condition 15D. 19 I have also considered the evidence of Mr Penningham where he states that: "Noise levels from the external speaker are predicted to be well below minimal levels in nearby motel rooms and are unlikely to be audible." 20 For these reasons the appeal is upheld and conditions modified in accordance with this judgment. ___________________ G.T. Brown Commissioner of the Court kb/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.