Land and Environment Court New South Wales

• Medium Neutral Citation: Bondi City Supermarkets Pty Limited v Waverley Council [2012] NSWLEC 1211
• Hearing dates: 31 July 2012 & 1 August 2012
• Decision date: 01 August 2012
• Jurisdiction: Class 1
• Before: Hussey C

Decision

Appeals allowed

• Catchwords: DEVELOPMENT APPLICATION - amenity impacts of refrigeration/condensers, noise vibration, heat. Building Certificate
• Legislation Cited: Environmental Planning and Assessment Act 1979; Waverley Local Environmental Plan 1996; Waverley Development Control Plan 2010
• Cases Cited: Gasmon Pty Ltd v Waverley Council [2009] NSWLEC 1257
• Category: Principal judgment
• Parties: Bondi City Supermarket Pty Ltd (Applicant); Waverley Council (Respondent)
• Representation: Counsel; Ms S Hill (Applicant); Mr S Patterson (Respondent); Solicitors; Susan Hill & Associates Pty Ltd (Applicant); Wilshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): 10303 of 2012 and 10491 of 2012

Judgment

Background

1 These proceedings relate to council's refusal of the following two applications, which concern the impacts arising from the unauthorised installation of refrigeration/condenser units for a supermarket at No 53 Glasgow Avenue, Bondi Beach:

• Proceedings No 10491 of 2012: A Building Certificate Application under Section 149B - Section 149E of the Environmental Planning and Assessment Act, 1979 for building works relating to refrigeration/condenser units ("the equipment") associated with an existing supermarket at No. 53 Glasgow Ave, Bondi ("the subject site"). The location of the equipment is within the eastern setback of the subject site.
• Proceedings No 10303 of 2012: A Development Application ("DA") which seeks, in effect, to retain the equipment in its current location being within the eastern setback area of the subject site. The DA also seeks to demolish the existing enclosures around the equipment and to erect a new enclosure and screen around the equipment. The DA also includes a Landscape Plan, which proposes landscaping along a portion of the eastern boundary setback.

2 The parties agreed for the matters to be heard concurrently at an onsite hearing (OSH) and the identified issues involve:

• Impact on amenity; in terms of noise, heat and vibration arising from the condensers operation.
• Whether the condensers should be located internally.
• Landscaping; regarding the adequacy of the proposed landscaping around the condensers.
• Public interest.

The site

3 The site is located on the southern side of Glasgow Street, at the intersection with Glenayr Avenue, Bondi. The building comprises a part two with part three storey (attic) mixed development containing a supermarket and pizza shop with a one bedroom unit at ground floor level with six (6) one bedroom units above. The building has a 2130mm rear setback and the existing condensers are located within this area.

4 Surrounding development comprises mixed-use buildings to the north east and adjoining to the south west (57-59 Beach Rd). Across Glenayr Avenue is the Beach Road Hotel. Adjoining to the east is a two storey residential flat building.

5 The proposal seeks to retain the air conditioning units and refrigerators in their existing external location, within the rear (eastern) part of the site, in association with the existing supermarket use. The proposal also seeks to demolish the existing, external enclosures and erect a new enclosure and screen around the units in an attempt to address acoustic and heat impacts. Landscaping in the form of a 'Lilly Pilly' tree and ground covers are also proposed along a section of the setback between boundary and rear fence.

Planning controls

6 The site is zoned 3(c) Business Neighbourhood under the Waverley Local Environmental Plan 1996 (WLEP) .The objectives of this zone are:

(a) to provide a range of shops and low intensity commercial uses that serve the daily needs of adjacent residential neighbourhoods, and

(b) to encourage the mixing of residential development with those uses.

7 Detailed development controls are contained in the Waverley Development Control Plan 2010, wherein Part E1 - Retail and Commercial Premises contains the following objectives:

(a) Minimise any potential adverse impacts on the surrounding environment;

(b) Enhance the scenic quality and amenity of streetscapes and public places;

(c) Regulate trading hours and monitor operations;

(d) Promote sustainable operations;

(e) Ensure operations are compatible with adjoining residential uses and are in accordance with the amenity expectations of the subject site and locality's zoning(s); and

(f) Enhance commercial amenity and economic viability of commercial centres and promote active street level frontages in commercial precincts.

8 The amenity controls are contained within cl 2.5.1 and include:

(a) Existing developments (for Type A and B premises) shall, where possible, incorporate plant rooms and any associated facilities required for the future use of the premises (e.g. ducting, vents, air conditioners, refrigerator units, mechanical plant, etc) into the building envelope. Where this can not be achieved in an existing development, plant room/utilities are to be designed to cause negligible impact to neighbouring properties and streetscape.

9 The relevant noise controls are contained within cl 2.5.2 and include:

(a) Air conditioning units and cool-room equipment must be located in a plant room or acoustic enclosure to remove the potential for any associated noise escaping from the subject property.

(b) ...

(c) Noise emanating from a mechanical ventilation system shall be in accordance with the relevant Australian Standards.

(d) The use of the premises shall not give rise to unacceptable vibration levels to adjoining/nearby properties and sound levels which exceed the recommended levels as outlined in DECC's "Noise Guide for Local Government".

(e) All sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation system are required to operate in accordance with requirements of the Protection of the Environment and Operations Act 1997 and relevant Australian Standard. Details of the proposed mechanical exhaust ventilation system within a food preparation area are to be submitted to and approved prior to the issue of a Construction Certificate

The evidence

10 Detailed evidence was submitted by:

• Mr J Smith;Applicant's consulting engineer
• Mr S Cooper;Applicant's acoustic consultant
• Dr R Tonin;Council's acoustic consultant.
• Mr T Moody;Applicant's town planner.
• Mr L Kosnetter;Council's senior town planner.

11 Similar issues on the same site were raised in a previous appeal in the matter of Gasmon Pty Ltd v Waverley Council [2009] NSWLEC 1257. That appeal was refused for a number of reasons, including the adequacy of technical details to enable proper assessment of the impacts arising from the external condenser location.

Proposed system

12 Subsequently for the current appeal, Mr Smith has assessed the various internal/external options and in respect of the existing external layout says:

• The noise sources from the condensers are the fan and compressor, which can be wrapped in barrier material to contain noise
• All of the condensers are presently housed within an acoustic enclosure along the eastern property facade
• The existing system does not discharge air vertically to allow it to be dissipated over a large area
• The air discharging from the condensers can mix which affects unit performance
• The present configuration results in short circulating of discharge air streams and overheating
• Presently the condensers share a common air flow path which causes recirculation of air between units
• This results in inefficient operation and extended plant operating time
• The current enclosure system is a set of interlocking panels and failure of any of the panel locks has the potential to result in loss of enclosure sealing and performance

13 In response to the vibration issue, he considers the source was due to low frequency noise problem in the existing system, likely to be related to the fact that the original condenser installation has the condensers discharging into a common duct and the fan discharges being too close to the enclosure solid partitioning. The end effect of this is that acoustic interference due to "back pressure" (air pushing back onto the fans) and between fans can cause the "beating" effect described.

14 From his review of the system, Mr Smith says that the new enclosure design, which separates the condenser discharges, addresses this phenomenon. The new enclosure, being of a heavy weight construction, with absorptive lining and with high insertion loss air intake attenuation will contain acoustic emissions.

15 Accordingly, the detailed external layout is described by Mr Smith as:

The refrigeration plant condensers are proposed to be housed similarly to the current configuration but with improved operational and acoustic treatments. The condensers are independent of each other, separately treated acoustically and not reliant on supplementary ventilation systems for their reliable operation. Additionally, the recommended system configuration separates condenser air flow paths, thus air and heat discharged by the systems is over a wide area, the length of the eastern facade of the building. This thus mixes the air streams with surrounding air at reduced volumes, permitting improved dissipation on heat rejected by the plant in comparison to concentrating the exhaust into a single location. The alternate design also permits air to be discharged, as is shown in the design, at low velocity, thus minimising noise generation and unwanted drafting, persistent air movement in a direction and at a velocity which cause discomfort or nuisance, due to high velocity air discharge as is the case in the approved design. The temperature of the air stream in motion also plays a significant part in the physiological response to persistent air movement, this cannot be controlled in the approved design due to the need to continuously operate the supplementary ventilation plant. It is thus important that there not be constant air movement in a specific direction from a single concentrated source.

The proposed construction, due to the distributed design of the condenser discharges will result in heat discharge which will not be detectable at adjoining premises. This is due to the fact that condenser air discharges will be vertical and readily dissipated over a large area (compared to the approved design) in the air space above the enclosure. Additionally, due to the fact that the condensers will pseudo-randomly cycle on and off based on refrigerated enclosure demand, the point of discharge will not be constant. Thus there will not be persistent airflow or heat emission from a single location to become a source of nuisance.

The mounting of rotating plant and connections to fixed elements, ductwork and structure, includes flexible connections designed and specified to absorb naturally occurring plant movement resulting from its normal operation. The plant is to be mounted on high efficiency resilient mounts to prevent transmission of vibration (which ultimately becomes noise) to the concrete plant area base, thus preventing this connection from becoming the source of annoyance. Lining of the enclosure will absorb condenser breakout noise, preventing reverberation internally, and its heavy weight construction will prevent transmission of noise through the structure to the surrounding environment. Design of the structure and materials selection have taken place to achieve a level of attenuation to account for and treat noise generated by all plant operating simultaneously within the enclosure at the most onerous time, night, to comply with the Australian Standards and Government specified prescriptive requirements. Due to the fact that the percentage of time where all condensers operate simultaneously is very small, the enclosure performance will exceed that required.

Condensers do not operate simultaneously, being under the control of the individual enclosure thermostats. The cooling demand is typically dependent on frequency of access to any controlled enclosure. It would be typically expected that not more than two condensers will be operating at any point in time, but the potential remains. Most likely times when a large percentage of condensers are likely to operate are, for example, fresh produce is placed in the refrigeration units over a short period of time, raising enclosure temperature for a short period. This activity can be controlled and staged to ensure that plant is not called to operate simultaneously. The enclosure and ductwork have been designed to account for the most onerous condition where all condensers are assumed to be in operation simultaneously during more sensitive night time hours...

The new proposed configuration is an improvement on the current enclosure as the condensers are individually ducted, resolving the current problem whereby the air discharging the condensers can mix, affecting unit performance. The present configuration, due to short circuiting of discharge air streams, has documented overheating problems in summer. The solution has been the temporary removal of portions of the acoustic enclosure with resultant adverse affect on adjoining residential premises. This, as has been stated elsewhere in this report, is addressed by the proposed new design.

Having the condensers sharing a common air flow path causes recirculation of air between units, resulting in inefficient operation due to elevated condenser air inlet conditions and thus reduced performance. This performance reduction consequently results in extended plant operating time, with increased energy costs and probability of a increased number of condensers operating simultaneously. In the extreme situation, loss of enclosure temperature control can occur with consequences for stored product.

The new design is also a single acoustic enclosure, with each condensing set having a dedicated air discharge path, compared to that currently in place which is a set of interlocking panels, removable to permit maintenance access. Failure of any of the panel locks in the current installation has the potential to result in loss of enclosure sealing and thus performance. Problems with the current design have all been addressed with the new enclosure by removing the close fitting panel system, now a single enclosure with ready access to all plant.

16 In conclusion, Mr Smith says that it should be acknowledged that the scale of the refrigeration system should be considered in the context where the plant in use in this application is no larger than a domestic air conditioning plant, with similar noise and vibration emissions. Condenser plants, regardless of installation size (capacity) must have ready access to cooling air and cannot be reliant on supplementary ventilation plant for its operation.

17 Accordingly, the proposed installation meets the intent of the Waverley Council's DCP with minimal visual impact. The use of packaged condensing sets, with compressors enclosed within the housing including an acoustic enclosure ensures that there is no risk of unwanted acoustic emission. The enclosure to house the refrigeration plant has been designed to have minimal visual impact and distribute air exhausted by the condensers along the eastern façade of the building by separating the each condenser internally and individually discharging the heated air.

18 Mr Smith does not consider the alternate internal location suggested by council is workable due mainly to lack of make-up air provision. If such option was pursued it would result in a bulky design with detracting visual appearance of the building façade.

Acoustic impacts

19 The acoustic consultants in a joint expert statement reviewed the system and agreed that the modified system should achieve satisfactory acoustic outcomes to satisfy cl 2.5.2 of Part E1 of the DCP, subject to the imposition of conditions of consent. However these consultants also note that it would be possible to achieve these outcomes with the internal placement of the condensers.

Landscaping

20 The planners initially agree that in the subject context, the issue of amenity impacts should be given greater weight than those concerning visual impact or landscaping. But Mr Kosnetter says that the external location reduces the ability to include landscaping along the common boundary with the adjoining RFB.

21 However there is disagreement as to what landscaping was required when the subject site was originally redeveloped. The approved plans apparently indicated a landscaping strip but no condition to this effect imposed.

22 In response to the current proposal, the planners agree that the proposed fencing works and landscaping should result in a satisfactory streetscape impact. However, Mr Kosnetter considers there would be a better amenity impact between the neighbouring properties if the entire setback strip was landscaped.

Conclusion

23 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the revised proposal now merits conditional consent. It is apparent that Mr Smith has undertaken a detailed review of effective refrigeration options to achieve the intent of council's controls.

24 Insofar as cl 2.5.2 prefers cool room equipment to be located in a plant room, nevertheless an appropriate acoustic enclosure is also a listed option. Consequently, Mr Smith's recommendation is that the condensers be located externally within an appropriate acoustic enclosure, which will enable their effective operation. His assessment has included an initial cost estimate for locating the plant internally, which results in a near doubling the cost and a reduction in effective retail space.

25 From my consideration of the competing submissions, I note Mr Patterson's submission that it is council's preference for the plant to be located internally to reduce external amenity impacts. But I then accept Ms Hill's submission that the Part E1 objectives of the DCP seek to promote sustainable operations and enhance commercial amenity and economic viability subject to compatibility with adjoining residential uses and therefore the cost implications should be considered.

26 It seems to me that a reasonable balance can be achieved with the external location of the condensers providing they are installed as indicated by Mr Smith and subject to ongoing maintenance and performance testing to ensure the amenity outcomes is acceptable. The proposal involves the installation of new acoustic enclosures that both Mr Smith and the acoustic consultants agree will satisfy the desired performance outcome.

27 The applicant has provided conditions of consent which provide for the preparation and approval by council of a Management Plan for the external plant, which is to specify the procedures related to operation and maintenance of the plant and equipment and is to include procedures relating to overheating of the equipment. This must include details of the staff procedures upon being notified of the automatic 'switch off' function when the units have overheated. These procedures must include:

• Any requirements as detailed in the technical specification manuals of the equipment;
• A commitment to the servicing of the units every 2 months; A requirement to contact an engineer/technician to repair and/or adjust the units in the event of an automatic 'switch-off' or substantiated complaint so that the units are returned to be within the noise, heat and vibration parameters of all conditions of consent attached to this development;
• A requirement that the units are never operated with any part of the approved acoustic enclosures removed or not in place;
• An appropriately qualified engineer is to provide monitoring of the device on at least 2 separate occasions during the summer months, concluding with a report to be submitted to Council for approval prior to the expiration of the trial period referred to in this condition comparing the performance of the units to the operational conditions of consent. Any recommendations to adjust the units to satisfy conditions of consent or the technical specifications requirements of the units are then to be carried out and an addendum monitoring report prepared; and
• A record must be made of any service, repair or 'call out' by the engineer/technician in a log book, to be retained within the Manager's Officer, and this is to be available for inspection by Council Officer's within 14 days following a written request.

28 In addition to this, the applicant agrees to a 12 month trial period for the operation of the external plant and equipment. At the conclusion of the trial period, or at any time during the trial period, if the plant and equipment is determined by Council to be in breach of operational conditions of consent, it must be removed or adjusted so that it complies with operational conditions. The trial period will not expire until the applicant has supplied reports from appropriately qualified acoustic and mechanical engineers that the plant and equipment is operating in accordance with the design specifications and all conditions of the consent and Council has confirmed in writing that is it satisfied with these reports. The trial period is to commence on the date of the Final Occupation Certificate and is for a period of 12 months.

29 My assessment is that subject to the proper installation of the external units, compliance with the Management Plan and satisfaction of the trial period, then the DCP objectives and controls should be reasonably satisfied.

30 The associated issue concerns the landscaping of the rear setback area. Reference to the original approval does not indicate that this area was designated for specific landscaping works. In the past it had apparently been used as a service delivery access to the commercial premises. From my observation, it seems this area has a poor aspect for planting and presents very much as a confined side accessway, similar to the surrounding properties.

31 Therefore, the proposed upgrading of this area comprising the new 2m high boundary fence, small frontage fence and supplementary planting towards the Glasgow Avenue frontage should improve the streetscape presentation, as agreed by the planners.

32 With regard to amenity impacts on the adjoining RFB, I consider the ground level impacts acceptable after construction of the new fence and consistent with the general neighbourhood. Providing the noise and vibration is controlled, I do not consider the outlook from the upper level of the RFB will be materially affected, considering its existing relationship with the subject building.

33 In summary then, I rely on Mr Smith's evidence that the amenity outcomes from the external condensers can be maintained at a reasonable amenity level, which has negligible impact to neighbouring properties and addresses the specific objections raised by the neighbour. In this regard, I note there was no other expert challenge to Mr Smith's evidence and the acoustic consultants confirmed this outcome. My conclusion is that conditional approval to the proposed works be granted and this should then allow the Building Certificate to conditionally issued.

Court orders

34 The Court orders that:

• Appeal No 10303 of 2012;
• 1  The appeal is allowed.
• 2  Development consent is granted to DA - 110/2011 for the erection of an acoustic enclosure and screen around air conditioning and refrigeration units at 53 Glasgow Avenue, Bondi Beach, subject to the conditions in Annexure A.
• 3  The exhibits be returned except for 2, 3, 4, 5, A and C.

• Appeal No 10491 of 2012;
• 1  The appeal is allowed.
• 2  Pursuant to s 149F of the Environmental Planning and Assessment Act 1979, the Respondent is to issue a Building Certificate to the Applicant upon the Respondent being satisfied that the Applicant has carried out the work ordered to be carried out in proceedings 10303 of 2012 in accordance with the requirements of that consent.

R Hussey

Commissioner of the Court

Amendments

07 August 2012 - Typographical error
Amended paragraphs: Final para order 2

Decision last updated: 03 August 2012