Land and Environment Court of New South Wales CITATION : Davis v Pittwater Council (1) [2008] NSWLEC 9 APPLICANT Raymond and Susanne Davis PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10208 of 2007 CORAM: Tuor C Development Application :- wholesale plant nursery and landscape supply business KEY ISSUES: insufficient information impact on residential amenity, noise, water quality and vegetation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 CASES CITED: Davis v Pittwater Council [2007] NSWLEC 657 DATES OF HEARING: 5 and 6 September and 4 December 2007 DATE OF JUDGMENT: 15 January 2008 APPLICANT Mr Maston , barrister (4/12/07) Mr Flaherty, solicitor SOLICITORS LEGAL REPRESENTATIVES: Robert King and Associates RESPONDENT Ms M Carpenter, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 15 January 2008 10208 of 2007 Davis v Pittwater Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of a development application (N0691/05) under the Environmental Planning and Assessment Act (EPA Act) for a nursery and landscape supply business at 138 Wirreanda Road, Ingleside, being lot 1 DP522208 and lot 4 DP 827539 (the site). Background 2 The appeal was initially held on 5 and 6 September 2007. The Court heard evidence on the permissibility of the proposed uses on the site and the merit issues in dispute. The parties agreed that the issue of permissibility should be determined as a preliminary point. On 5 October 2007 (Davis v Pittwater Council [2007] NSWLEC 657) I found that under the 1(a) (Non-urban A) zoning table in Local Environmental Plan 1993 (LEP 1993) the proposed activities, with the exception of the crushing of waste material on site, are permissible with consent as a rural industry. The uses comprise a wholesale plant nursery for mature palms and other trees and associated raw materials for landscaping purposes such as soils, sands, gravel, sandstone and green waste; the processing of green waste from materials on site and administrative offices. Directions were also given requiring further acoustic testing. 3 The hearing continued on 4 December 2007. The only outstanding issues being noise and conditions of consent. The evidence 4 On 5 and 6 September 2007, the Court heard expert evidence from: For the council o Ms L Haidari, town planner o Dr R Bullen, acoustic consultant o Dr P Nichols, consultant ecologist For the applicant o Mr I Ezzy architect for the proposal o Mr G Atkins, acoustic consultant o Mr R Williams, ecologist o Mr J Matheson, consultant engineer 5 The Court visited the site and heard evidence from a number of residents. Their main concerns were the impact on residential amenity from a non-residential use, particularly noise impacts and the increase in cars and trucks within the site and on local roads. The residents were also concerned that the site would be used for waste collection (including green waste), the crushing of existing waste material on the site and contamination of the site. 6 On 4 December 2007 a joint report of Mr Atkins and Dr Bullen was tendered and the Court heard further evidence from Dr Bullen. Mr N Ives, council officer, gave evidence on conditions. A further written submission was received from Ms R Swift, 137 Wirreanda, Road, Ingleside. The issues 7 The Amended Statement of Facts and Contentions dated 23 August 2007 contained 9 issues. A number of issues related to insufficient detail, which were addressed by the submission of further information and expert evidence. The merit issues were: Issue 2 - Accessibility Insufficient information has been provided to enable a proper assessment of accessibility for the site. 8 The key disagreement between Mr Ezzy and Ms Haidari was whether the proposal met of cl C2.6 of Pittwater 21 Development Control Plan (DCP 21), in particular the requirement that: Convenient and safe access for all people, including people with a disability, older people, and people with prams, must be provided to and within all buildings to which the general public have access. 9 Mr Ezzy considered that the clause required access to and within buildings and that the administration building was the only building which would be accessed by the public. In his opinion this building complied with the requirement. In Ms Haidari's opinion any part of the site used by the public should be accessible. In particular she was concerned that access details from the disabled car park to the administration building were not provided. 10 The applicant has agreed to a condition that requires certification from an Accredited Access Adviser that the proposal complies with the requirements of DCP 21. I accept that the condition satisfactorily addresses this issue. Issue 3 – site coverage Insufficient details have been provided to enable an accurate assessment and compliance of site coverage controls. 11 The submission of a Site Coverage Plan demonstrated compliance of the proposal with the requirements of cl D6.8 of DCP 21 and as such this issue is satisfactorily addressed. Issue 4 and 5 - Water Quality Water quality issues arising from excessive nutrients and turbidity, which are likely to be associated with the proposed use have been inadequately addressed. 12 Council was principally concerned that insufficient information had been provided regarding the systems to deal with the run-off from the site and that a fully vegetated riparian zone would be established along the length of the creek which runs through the site and into the National Park. 13 Dr Nichols and Mr Matheson agreed that the proposed system would adequately address the issue. They recommended conditions of approval which included the requirement that water quality monitoring of the system be carried out to confirm that the water quality being discharged from the water quality control ponds meets the appropriate standards. 14 These experts also recommended conditions specifying plant species composition and design of the macrophyte zone in the proposed water quality control ponds and appropriate riparian plant for the water course. 15 The applicant has agreed to these conditions of consent. I accept the evidence of these experts. Issue 6 - Noise The applicant has failed to provide an acoustic report and related operational management plans to address the potential noise impacts associated with the development and, given the nature of machinery and vehicles proposed to be used on the site, the consent authority cannot be satisfied that noise impacts can be adequately addressed. 16 The issue has been satisfied through the submission of the required information following testing by the noise experts and the imposition of conditions of consent. Dr Bullen and Mr Atkins based their assessment on assumptions about the operation of the uses, including the type of machinery and its location, the movement of trucks both within and outside the site and that the stockpile of concrete would be removed by trucks during a "construction period" of no more than 6 months. They recommended that the workshop be enclosed to limit noise. Further, Dr Bullen recommended that a Noise Management Plan be prepared for the operation of the site. These assumptions and recommendations have been incorporated into conditions of approval agreed to by the applicant. Dr Bullen and Mr Atkin agreed that the relevant criterion for operational noise from the site as it affects nearby residences is: The LAeq, 15min noise level due to operations on site should not exceed the Rating Background Noise (RBN) at the relevant residence by more than 5dB. 17 Dr Bullen and Mr Atkins concluded that: Hence, given the assumptions listed above together with the recommended enclosure for the workshop, noise impacts from the proposed activities will be within recommended criteria and are therefore considered acceptable. 18 I accept the evidence of these experts. Issue 7 – Front building line The proposal does not comply with Council's front building line control. 19 Ms Haidari and Mr Ezzy agreed that the proposal met this control and council did not press the issue. Issue 8 - Amenity The proposal is likely to have an adverse impact upon the residential amenity of the local area. 20 The main concern of the residents, other than the issues raised by council, was the increase in traffic, particularly trucks. The use is a wholesale nursery and therefore the number of cars and trucks is much less than if it were a retail activity. The conditions of consent limit the number of trucks to 12 trips per day (24 movements), including one customer trip 8 staff trips per day (16 movements) and 1 customer car trip per day (two movements). 21 The residents were also concerned about contamination on the site. A Stage 1 preliminary contamination report has been prepared which concluded that the site was suitable for the proposed use. While the study identified some isolated soil impacts it only recommended further study should a different (more sensitive use) be proposed. A deferred commencement condition has been agreed to by the applicant that a further contamination study be undertaken where excavation is proposed. 22 The residents concerns about the site being used for waste collection (including green waste) and crushing of existing waste are dealt with by conditions. The use of the site for these purposes is not approved and as such cannot be carried out without further approval. Processing of green waste is permitted but only from material sourced on site. 23 Council did not raise traffic or contamination as issues. In the absence of expert evidence to the contrary, I am satisfied that the impact of the proposal on adjoining residents is acceptable. Issue 9 - Vegetation The proposal fails to retain and enhance locally native vegetation as well as preserve the natural features of the site. This has an adverse affect on local floristic and biodiversity values as well as local scenic values. 24 Dr Nichols and Mr Williams agreed that the additional information provided in the Ecological Sustainability Plan satisfied this issue and recommended conditions of approval which have been agreed to by the applicant. I accept the evidence of these experts. Other issues 25 In Davis v Pittwater Council [2007] NSWLEC 657, I accepted council's submission that the crushing of tiles, bricks and concrete that has been stockpiled on the site is "industry" and therefore prohibited in the zone. At the hearing on 4 December 2007, Mr Maston, for the applicant, made submissions on the permissibility of the proposed crushing activity as this had not previously been addressed in the applicant's earlier submissions. It is not necessary to adjudicate on this submission as on merits there is insufficient information to assess the crushing activity. The use was not addressed in the Statement of Environmental Effects, nor assessed by the noise experts who assumed that the waste material would be removed from the site in trucks during the construction period. Other issues such as dust and traffic generation have also not been addressed. The likelihood of crushing occurring on the site was also a significant concern of the residents. Given the lack of information and the adjournment that has already occurred it is not appropriate to permit another adjournment for this activity to be further assessed, given its potential impacts. 26 Existing and proposed Reduced Levels (RLs) were not provided prior to the hearing on 4 December 2007. The applicant has agreed to a deferred commencement conditions requiring the submission of RLs and a geotechnical risk management report. 27 Following the hearing on 4 December 2007, the applicant has agreed to conditions requiring a noise management plan and spill management plans for the fuel refilling area and handling of liquids in the workshop. These conditions were disputed during the hearing. 28 An amended Plan of Management dated November 2007 has been prepared. This document details the proposed uses and their location, construction stages and operation of the facility. However, it refers to the crushing of waste material which do not form part of the approval. It also includes references to RLs for earth works which have not been assessed by Council and are not approved. The consent includes deferred commencement conditions, which may also alter the Plan of Management, although not to the extent that the changes would alter the certainty of the proposed development. 29 The impact of the proposal on adjoining residents and the environment relies on the proposal being constructed and operating in accordance with a Plan of Management that is unambiguous. I have therefore included a condition that an amended Plan of Management be prepared for the approval of council and that the proposal operate in accordance with the approved Plan of Management. The noise and the spill management plans could also be incorporated into this document. 30 A large proportion of time in the appeal was spent clearly defining what the proposal is and therefore what its potential impacts would be. In response to Directions, the parties have incorporated a description of the proposal within the conditions of consent. However, I do not consider this provides sufficient detail or adequately reflects the evidence in the case. I have therefore amended the condition. Orders 31 The Orders of the Court are: 1. The appeal is upheld. 2. The development application (N0691/05) for the following uses and works at 138 Wirreanda Road, Ingleside (lot 1 DP522208 and lot 4 DP 827539) is approved subject to the conditions in Annexure "A": * Wholesale plant nursery and landscape supply business, for the acquisition, holding, sorting, screening, growing, processing, packing, selling and delivering of the nursery and landscape supply stock. The nursery stock will consist of mature palms and other trees. The landscape supply stock will consist of natural products only including soil, sand, mulch, bark, decorative and drainage gravel, rock and stone; * processing of green waste from materials sourced on site; * construction and use of an administrative office in association with the above uses; * alterations to and use of the existing workshop building and fuel pumps in association with the above uses; * construction of an awning over and bunding around two existing fuel pumps; * construction of water quality control ponds and drainage works; * associated landscaping and regeneration works; * construction of access roads; * removal of existing stockpiles of waste material during a six month construction period. 3. The exhibits, except Exhibits 7, L, M, O, and Q may be 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.