Land and Environment Court New South Wales Medium Neutral Citation: Hunter Valley Wine Services Pty Ltd v Muswellbrook Shire Council [2011] NSWLEC 1232 Hearing dates: 4 July 2011 Decision date: 05 July 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. Within three weeks the parties are to file an agreed colour scheme and conditions. 2. Liberty to restore on two days notice. Catchwords: APPEAL - Application under s96 to amend conditions of development consent. Visual impact Legislation Cited: Environmental Planning and Assessment Act 1979 Muswellbrook Local Environmental Plan 2009 Cases Cited: Progress and Securities Pty Ltd v North Sydney Council (1988) 66 LGRA 236 Manaldo Pty Ltd v Baulkham Hills Shire Council (1995) NSWLEC 165 Category: Principal judgment Parties: Hunter Valley Wine Services Pty Ltd (Applicant) Muswellbrook Shire Council (Respondent) Representation: Cheney & Wilson Solicitors (Applicant) Sparke Helmore (Respondent) Mr P Clay, barrister (Applicant) Mr M Staunton, Barrister (Respondent) File Number(s): 10174 of 2011 Judgment 1COMMISSIONER: This is an appeal against the refusal by Muswellbrook Shire Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent (DA 239/2002) for the expansion of the existing wine making facilities at the former Oak Factory, 1 Hunter Street, Muswellbrook (the site). 2The site, its locality, the history of the application, and the planning controls, are outlined in the Statements of Facts and Contentions filed by the council on 23 March 2011, and the applicant on 8 April 2011, and in the council's bundle (exhibit 2). The proposal 3The application is seeking to amend conditions of the development consent as follows: (a) replace the requirement in condition 1.4 to paint the vertical tanks on the eastern side of the building with the requirement to screen the vertical tanks with landscaping; (b) replace the requirement in condition 1.5 to clean and paint tanks on the western side of the building with the requirement to screen those tanks with landscaping; (c) delete a requirement in condition 1.6 to paint and treat reflective surfaces which are visible from outside the site; (d) replace the requirement in condition 1.7 to remove all disused containers and other structures from the site with the requirement to remove the tanks at the entrance of the site by 30 September 2011; (e) delete that part of condition 1.10A which restricts the height of landscaping along the bund; and (f) the addition of condition 1.20A which modifies car parking arrangements for the development. 4The landscaping scheme proposes a row of shrubs, approximately three metres in height, along the western boundary, to screen the western tanks and a layered vegetative screen to be planted along part of the bund to partially screen and reduce the visual impact of the vertical tanks while maintaining filtered views to the distant landscape. Evidence 5The key issue in dispute between the parties is whether the proposed landscaping scheme will adequately mitigate the visual impact of the storage tanks in the shortterm. 6The appeal was conducted as an onsite hearing. The Court heard evidence from adjoining residents in Cousins Street, to the east of the site. Their principal concern was that the storage tanks had an adverse visual impact, including glare, and the loss of distant views. Conditions of approval have been imposed on the original consent, and subsequent amendments, to reduce the visual impact, but these have not been implemented by the applicant. The residents considered that the time that would be required for the landscaping to grow would mean that the visual impact would remain for a number of years, which was unacceptable, given the time that had already elapsed. Further, they did not consider that the landscaping would adequately address the visual impact, particularly the significant glare that occurs in the morning. They considered the painting of the tanks approved in 2008, to be a better solution, and that there is no justification to remove this requirement. 7The Court heard expert evidence from Mr D Moir, a landscape architect, who prepared the proposed landscaping scheme for which approval is sought. Mr Moir provided evidence on the visual impact of the proposal. 8Mr B Oliver, for the council, and Ms S Flannery for the applicant, provided expert planning reports and a joint report on the visual impacts of the proposal. They were not required for crossexamination. Vertical tanks 9All the experts agree that the vertical tanks create an adverse visual impact, most noticeably to the occupants in Cousins Street, and that these impacts could and should be mitigated. 10The experts agree that once established, the proposed landscaping is the preferred option to screen the vertical tanks and reduce visual impact. They agree that there will be an incremental reduction in the visual impact of the vertical tanks during the time taken for the landscape to go grow to an effective height. Mr Moir estimates this to be six to eight years. 11The experts disagree on the measures that should be undertaken in the intervening period before the landscaping is established to mitigate the visual impact. Mr Oliver states that the visual impact: predominantly relates to nuisance glare from the white stainless steel exterior surfaces of the tanks and the dramatic colour contrast of the tanks, within the context of their close proximity to a heritage building, and when viewed from residents that are located in Cousins Street. 12Mr Oliver considers the immediate adverse visual impact would be mitigated by painting and by a combination of painting and landscaping in the longer term. Whereas Ms Flannery considers that; painting the tanks in accordance with the approved colour scheme of Canopy Cream, External Blue, and Mist Green, would do little to reduce the visual impact of the tanks from the Cousins Street residences. 13Mr Moir undertook a desktop assessment of the potential for nuisance glare. He accepted the glare is a nuisance but that this is likely to be limited to between 5am and 10am in December to January which would diminish to be between about 6.30am and 7am by April. He concluded that: due to aspect and the current condition of the tanks it is unlikely that there is significant nuisance glare from the tank surface beyond early to mid-morning periods in peak summer and brief early morning periods in late spring and early autumn. 14Mr Moir considered that the approved colour scheme would have little effect in reducing glare, particularly as the glare results from the top of the tanks which are proposed to be painted off white. He also considered that the approved colour scheme would do little to reduce the visual impact of the tanks. The scheme proposed staggered layers of colours that represented the distant hillsides, the sky and clouds. Mr Moir stated that: the tanks all sit below the horizon line, hence the colours representing the sky and clouds would contrast sharply with the darker shades of the distant ranges. Furthermore, colours in the landscape and sky, constantly changing with variations in weather and light which makes it impossible to select static colours that would consistently integrate with the scenic background. Horizontal tanks 15The experts all agree that once established, the proposed landscape screen in front of the horizontal tanks is the most effective way to mitigate the visual impact of these tanks when viewed from the New England Highway. Mr Moir estimated that the screen would reach a mature height of about three metres in three years. Mr Oliver again raised concerns about the appearance of the tanks in the intervening period, and considered the condition requiring painting of the tanks should be retained to ensure an immediate improvement in the appearance of the tanks. Submissions 16Mr Staunton, for the council, submits that the application should fail on its merits, as the proposal does not adequately address the visual impacts of the vertical and horizontal tanks in the short term and that the longterm landscape solution will not reduce glare to an acceptable level and will impact on distant views. 17Mr Staunton also submits that as a matter of discretion, the modification application should not be granted. Specifically, the previous appeal (Appeal 10040 of 2008) dealt with an application under s 96 of the EPA Act to modify conditions of consent, including a condition which limited the height of the vertical tanks (condition 1.4). Some tanks had been erected which did not comply with the height limit in condition 1.4. The appeal specifically dealt with the visual impact of the proposal, and the council entered into consent orders on the basis that the approved colour scheme for the vertical tanks and a limitation of the height of landscaping along the bund, to two to three metres. The consent orders meant that the tanks, which were over the height limit in condition 1.4, did not need to be lowered or moved. Mr Staunton referred to Progress and Securities Pty Ltd v North Sydney Council (1988) 66 LGRA 236 and Manaldo Pty Ltd v Baulkham Hills Shire Council (1995) NSWLEC 165 to support his submissions. 18Mr Clay, for the applicant, submits that, on its merits, the application achieves an appropriate balance between a light industrial use and its visual impact on residential properties. He submits that the land is zoned IN1 General Industrial under Muswellbrook Local Environmental Plan 2009 (LEP 2009) , which permits the proposed use. The proposal to screen the tanks is not an unreasonable response to mitigate the visual impacts of the tanks when viewed from the adjoining General Residential zoned land. Further, he submits that in the exercise of the Court's discretion, the amendments should be allowed, as there had been changed circumstances since the granting of the consent orders. In particular, he referred to the Statement of Environmental Effects for the current s 96 application which states that analysis of material deposited on the tanks shows that 'it is a mix of coal, minerals and insect and plant remains. This material has an oily residue, which accumulates on the tank surface and discolours the tanks' To address the concerns about the tanks detracting 'from the visual amenity of the site, especially from the residential properties to the east, a specialist landscape and visual impact consultant was engaged to assess visual impacts of the tanks and develop options for mitigating the impacts'. The visual impact assessment concluded that the approved colour scheme would do little to address the visual impact, and that the: most effective method for mitigating the visual impact of the tanks in a sustainable manner is to introduce a vegetative screen that reduces the dominance of the tanks in the central view whilst enhancing the rural and natural character in the broader view. Findings 19In considering the merits of the proposal, all the experts agree that the proposed landscaping is the appropriate method to reduce the visual impact of the vertical and horizontal tanks in the longer term, however, they disagree on the shortterm strategy. I accept Mr Cousins' evidence that it is not acceptable for the vertical tanks to be without effective screening for a further six to eight years while the landscaping grows. 20Even when the landscaping is mature, I am not satisfied that it will eliminate the glare that results from the tops of the tanks, as these will be screened with filtered open canopy trees to reduce the impact on distant views. The resident evidence identifies that glare has a significant impact, and Mr Moir acknowledges that it causes a nuisance, although in his opinion this is only for limited periods. On the evidence, I accept that measures are required to mitigate the glare impacts. 21While I acknowledge Mr Moir's concerns about the appropriateness of the approved colour scheme and its philosophy, I do not accept that it is sufficient reason to remove the requirement to paint the vertical tanks, nor do I accept that there have been significant changes in circumstances that would justify the proposal or warrant me reaching a significantly different conclusion to that previously reached by council and the Court. 22All the experts agree that the tanks have an adverse visual impact which should be mitigated. There are a number of tanks of varying heights, some which exceed the height of the building and intrude into the distant views. The tanks are either painted with white undercoat or are stainless steel. Some have streaks of dust and areas of rust. The visual impact of the tanks is unacceptable, and I accept that it should be mitigated. 23The conditions of the original development consent in 2003 included conditions which limited the height of the vertical tanks (condition 1.4), required the tanks to be painted (condition 1.6) and required landscaping to be completed within three months (condition 1.10). Some of the tanks that are erected did not comply with condition 1.4. The consent orders granted by the Court in Appeal 10040 of 2008, approved these tanks, but on the basis that condition 1.4 was amended to require painting of the tanks in accordance with the colour scheme proposed by the applicant and agreed to by council's heritage advisor. The reason for the condition was 'to ensure that the erection of the vertical storage tanks does not detract from the visual amenity of the locality'. The painting was to be completed by 30 September 2009 and to be maintained for the life of the development (condition 1.6). A new condition (condition 1.10A) was added which restricted the height of the planting along Cousins Street properties and along the bund to limit view loss. 24While the details of the colour scheme and the landscaping have varied since the 2003 development consent, the requirement to paint the tanks and for landscaping along the bund has always been part of the application and part of the consent. However, to date, these requirements have not been complied with. The evidence before me provides no rationale or justification to remove the requirements of these conditions. 25I therefore find that the vertical tanks should be painted within three months of the final orders being granted to mitigate the unacceptable visual impact of these tanks in the short term. I accept that it is appropriate to consider an alternate colour scheme to address issues of glare and visual bulk raised by Mr Moir. In this regard, I will permit the applicant a short period of time to prepare an amended colour scheme. 26I accept the evidence of all the experts that the proposed landscaping scheme should be implemented to provide a longterm solution. I note that the decision in Appeal 10040 of 2008 limited the height of landscaping along the bund to two to three metres, however, I am satisfied that the proposed open canopy trees and spacing will ensure the distant views are not blocked but will filter views of the upper levels of the tanks. Given that the condition 1.10A, and earlier conditions, required landscaping as well as painting I do not consider that the retention of this condition is unreasonable in its amended form. 27The tanks along the western boundary are significantly lower than the vertical tanks, and they are viewed primarily from the New England Highway, across the railway line. I therefore accept that the requirement to paint these tanks (condition 1.5) can be deleted, as the proposed landscaping will provide an effective three metre screen within three years which addresses the visual impact of these tanks. 28The applicant also raised issue with the wording in condition 1.6 which required 'all reflective surfaces' to be painted. This condition is unclear. The reflective surfaces should be identified if the condition is to be maintained, or alternatively, the condition should be amended to include performance criteria for reflectivity. 29I accept the applicant's change to condition 1.7, to require removal of the disused tanks at the entrance of the site by 30 September 2011. However, I do not accept the change to delete the requirement that all disused containers be removed. The condition should be amended to specify the type of container and to ensure that it refers to tanks that are no longer used or needed by the facility. 30The requirement that the landscaping be completed within six months of the grant of consent is reasonable and condition 1.10 should remain. Directions 1. Within three weeks the parties are to file an agreed colour scheme and conditions. 2. Liberty to restore on two days notice. Final orders will be issued in Chambers __________________ 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. Decision last updated: 11 August 2011