Land and Environment Court New South Wales

• Medium Neutral Citation: Landmark Group Pty Limited v Lane Cove Council [2014] NSWLEC 1187
• Hearing dates: 13 August 2014
• Decision date: 22 August 2014
• Jurisdiction: Class 1
• Before: Dixon C

Decision

(1)The appeal is upheld.

(2)Development Consent D37/13 approved by Lane Cove Council on 18 September for demolition of 4 dwelling houses and the construction of a residential flat building comprising 71 units and onsite parking of 100 cars in relation to the land at 15-21 Mindarie Street Lane Cove, is modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979 in accordance with the conditions of consent in Annexure A

(3)The exhibits are returned.

• Catchwords: MODIFICATION - conditions of development consent - hours of work on a Saturday
• Legislation Cited: Environmental Planning and Assessment Act 1979
• Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254
• Category: Principal judgment
• Parties: Landmark Group Pty Limited (Applicant); Lane Cove Council (Respondent)
• Representation: Mr M Staunton (Applicant); Mr A Seton (Respondent); Wilshire Webb Staunton Beattie (Applicant); Marsdens Law Group (Respondent)
• File Number(s): 10165 of 2014

Judgment

Introduction

1 The applicant, Landmark Group Pty Limited, has conditional development consent from Lane Cove Council to construct a residential flat building at 15-21 Mindarie Street, Lane Cove (the consent).

2 On 6 December 2013 the applicant lodged an application with the Council seeking approval to modify the approved development through the amendment and/or deletion of conditions of consent. In particular, the amendment of conditions 2, 13, 21, 75, 82 and 88 and, the deletion of conditions 35(e), 37, 39, 44, 56, 60, 76(1).

3 On 5 February 2014 the Council resolved to amend condition 2 and delete conditions 39, 43 and 44 and impose a replacement condition 43 on the consent.

4 As the applicant did not accept the Council's determination it filed this appeal to Court pursuant to s97AA of the Environmental Planning and Assessment Act 1979. However, by the date of the hearing all issues had been resolved except for those relating to condition 13.

The Council's approved condition 13

5 Condition 13 as approved by the Council on 19 September 2013 provides:

13. All demolition, building construction work, including earthworks, deliveries of building materials to and from the site to be restricted as follows:

Monday to Friday (inclusive)	7am to 5.30pm
Saturday	8am to 12 noon with no excavation, haulage truck movement, rock picking, sawing, jack hammering or pile driving to be undertaken. Failure to fully comply will result in the issue of breach of consent P.I.N.
No work shall be carried out on Sunday or Public Holiday

The applicant's proposed condition 13

6 The applicant wants to modify condition 13 to allow "construction works to be undertaken from 7am to 4pm on a Saturday."

7 The proposed condition 13 provides:

13. All demolition, building construction work, including earthworks, deliveries of building materials to and from the site to be restricted as follows:

Monday to Friday (inclusive)	7am to 5.30pm
Saturday	7am to 4.00pm with no excavation, haulage truck movement, rock picking, sawing, jack hammering or pile driving to be undertaken. Failure to fully comply will result in the issue of breach of consent P.I.N.
No work shall be carried out on Sunday or Public Holiday

Council's position

8 The Council opposes the applicant's proposed extension of work hours on a Saturday because it contends that is inconsistent with the Council resolution of 18 March 2014 which provides:

2.Saturday working hours for construction work only be 8am - 12 noon and keeping the current restrictions of no excavation, haulage truck movements, rock picking, sawing or jack hammering to be undertaken and the failure to comply resulting in a breach of consent PIN and no work be undertaken on Saturdays or Public Holidays.

9 It maintains that since the Council's resolution of March 2018 all development consents issued for residential flat buildings have a condition similar to condition 13, which restrict construction work on Saturday. In those circumstances, it contends that an approval of this application will set an unacceptable precedent that will result in unreasonable negative impacts on the amenity of adjoining g properties.

Background

10 According to the applicant's evidence the Council's website currently notifies the following standard development condition for building work in the Lane Cove local government area (LGA):

All demolition, building construction works including earthworks, deliveries e.g. building materials to and from the site to be restricted to the following hours:

Monday - Friday (inclusive)

7 am to 5.30 pm

Saturday - 7am to 4pm

No work to be carried out on Sundays or any public holidays.

11 Despite that (as noted above) since 18 March 2013 the Council has restricted Saturday work hours on all development consents for residential flat building in the Mowbray Road Precinct to between 8am to 12noon.

12 According to the Council the condition is consistent with the recommended standard hours detailed in the Department of Environment & Climate Change - Interim Construction Noise Guidelines (Exhibit 9). (Although, at the hearing the Council conceded that the recommendation in fact allows construction work until 1pm on Saturday).

13 The Council's Manager of Environmental Health, Mr Wilson, gave evidence at the hearing. Mr Wilson is responsible for the monitoring of all environmental conditions and the hours of operation of major building sites within the Lane Cove Local Government Area (LGA). He told me that he supports shorter construction work hours on Saturday within the Mowbray Precinct because of the large number of multi-unit residential developments under construction since the up-zoning of the area.

14 To demonstrate the extent of the construction work in the Precinct Mr Wilson referred me the plan in (Exhibit 3). It identifies, amongst other things, the sites within the Precinct that have development consent for multi unit residential flat developments. I accept his evidence based on my view of the locality that parts of the Precinct are in a state of transition as a result of the Council's up-zoning.

15 The evolution of the Council's resolution of 18 March 2013 is explained in the documents in the Council's bundle (Exhibit 4). It followed a request by the Council at its meeting on 18 February 2013 for a report on the working hours for development in the Mowbray Road Precinct. The Council minutes record that the purpose of the report was to detail the working hours and associated restrictions for undertaking works in the Mowbray Road Precinct and the Council area generally.

16 The resolution to restrict the work hours of multi unit residential developments on Saturday however, was founded on the motion of two Councillors (at folios 5 - 7 of (Exhibit 4). Relevantly, there is no evidence before the Court of any public consultation before the decision was taken to restrict the usual Saturday building work hours for multi unit development in the LGA.

17 Despite that lack of public consultation, Mr Wilson believes that the restricted work hours on Saturday has increased the residential amenity of the residents living within the Mowbray Precinct. In his opinion it has reduced the traffic congestion caused by contractor's trucks and vans parked in the local road network around construction sites and the noise generated by construction works - including cutting equipment and concrete pumps. Mr Wilson believes the restriction offers respite for residents from the ongoing construction in the Precinct and a balance. He believes that people expect construction works Monday to Friday but anticipate some peace and quiet on Saturday afternoon

18 Mr Wilson predicts that the multi unit construction will continue in the Precinct for at least the next 2 - 4 years and when the construction stops the restriction of work hours on Saturday could be lifted.

19 Mr Wilson's evidence included a table setting out the complaints the Council has received (over the last 2 years) about building site nonconformances within the Precinct. The table collates approximately 439 individual complaints. Despite his oral evidence, I am unclear which (if any) of the complaints recorded in his table directly relate to this development site or in fact construction work. It appears to concern all manner of complaints in the LGA. For that reason I have decided to give little weight to this part of his evidence in my assessment of this application.

The applicant's position

20 The reason why the applicant seeks longer working hours on a Saturday is explained in the affidavit of Mr Picciau, the applicant's project manager. His evidence is that the current condition 13 does not work in practice. He states "...it places an unreasonable financial burden on this applicant's head contractors because they need to pay staff for a full days work on Saturday even though they can only work for 4 hours". Mr Picciau also states that, "...more often than not, many of the contractors simply do not turn up on Saturdays or if they do, they only bring a skeleton staff. As a result construction progresses very slowly on Saturdays, and sometimes not at all".

21 The building is presently constructed to its third level. It is essentially a shell with walls. The work that the applicant proposes to carry out during extended hours on Saturdays is limited to "...tiling, partitioning, gyprocking, carpeting, rendering, bricklaying, formwork, plumbing, electrical, mechanical (installation of air conditioning) metalwork, waterproofing, glazing, carpet laying, landscaping and joinery). It is described as being 'light works' to be mostly carried out in the shell of the building.

22 The basement car park is also near completion and, in an effort to address the Council's concern about on street parking by the site's contractors, the applicant agrees to the imposition of a condition that requires all contractors to park their vehicles onsite in the basement car park. The terms of the proposed condition are set out in Exhibit J.

23 In response to the Council's concern about unacceptable noise generated during the extended work hours from12 till 4pm, the applicant agrees to a condition requiring noise monitoring by a statistical noise logger supplemented by attended monitoring. The terms of this acoustic condition are as follow:

An accredited acoustic consultant will undertake the attended noise monitoring. All noise monitoring will comply with the AS 1055.1 - 1989 and the statistical parameters to be measured will be the LA min, LA 90, LA 10, LA1, LA MAX and LA eq over consecutive 15-minute periods.

The unattended noise monitoring will also be configured to trigger a visual onsite alarm and send an SMS alert to the site manager and other personnel nominated by the applicant, if construction noise exceeds a warning level of 45 dBA LAeq (15 mins) and a halt level of 47dBA LA eq (15 mins).

Exceedence of the warning level would not require construction to cease, but rather alert the site manager to proceed with caution.

An exceedence of the halt level would require the site manager to implement an alternative construction technique that does not exceed the halt level.

A site manager shall be onsite at all times during the extended hours and will be responsible for compliance with the ACNUMP. Prior to carrying out the works during the extended hours the site manager shall be inducted by the accredited acoustic consultant so as to be familiar with the conditions of this plan and the operation of the noise monitoring equipment.

24 To further minimise noise between the hours of 12 and 4pm the applicant agrees that "no hammer drill is to be used during the extended hours of operation on Saturdays" and, that a mobile sound barrier is to be erected around noisy activities or machinery.

Acoustic evidence

25 The parties relied on acoustic expert evidence to assess the noise impacts generated by the proposed construction during extended hours on Saturday. Mr Godson appeared on behalf of the applicant. His statement of evidence is Exhibit A and, Mr Gauld appeared on behalf of the Council. His statement of evidence is Exhibit 5. The experts also prepared a joint report it is Exhibit 6.

26 The acoustic experts agree that the Guidelines are a useful guide for the management of construction noise on this site. They also agree upon the relevant background noise levels. A background noise level of 47dBA is the appropriate background noise level for the afternoon and a level of 51dBA is appropriate background noise level from 7am to 8am on Saturday. However, they disagree about the sound power levels of the tools to be used on the site and the effectiveness of a 3.6 m high mobile absorption barrier around the noise source and the sound monitoring proposed.

27 Mr Gauld is of the opinion that despite these measures the noise criterion of 47dBA (based on the NSW ICNG) will be exceeded onsite (even with the limited works identified) during the extended work hours on Saturdays because compliance with the agreed criteria relies heavily on management intervention. In his experience reliance on a site manager to ensure noise control is unlikely to be successful. As the residents in the area are already exposed to construction noise above the criteria during the week Mr Gauld believes that it is reasonable to provide respite on Saturdays by limiting the construction hours from 8am to 12 noon as approved. For those reasons Mr Gauld is of the opinion that the proposed amendments to condition 13 are likely to have an unreasonable negative impact on the amenity of adjoining residents.

28 Mr Godson is of the opposite opinion. His evidence is that the monitoring program proposed and noise buffer will be effective in controlling unacceptable noise from the site. In his experience the measures incorporated into the proposed conditions are standard procedure for construction projects in Sydney and are consistent with and complimentary to the (Council approved) Construction Noise and Vibration Management plan for the project. He is of the opinion that the trials proposed will determine the 'buffer' distance required between the nearby receivers and the respective noise sources and thereby achieve compliance with the recorded construction noise management level. Mr Godson believes the onsite manger will ensure compliance with any conditions imposed on the consent because the applicant needs to work on Saturday afternoon to complete the project on time. Furthermore, compliance will continue to be monitored by the Council rangers.

29 Mr Godson is of the opinion that the noise levels generated by the proposed activities during the extended periods on Saturday will not have an unreasonable impact on the amenity of adjoining residents subject to the imposition of his recommended conditions.

Consideration

30 There is no dispute that the site sits squarely within the up-zoned area under the Council's planning controls. Consequently, the existing development within the locality consists of a mixture of dwelling houses and multi-unit residential flat buildings in various stages of construction. The local residents are therefore living in an area that is in transition and construction works is happening around them. There can be no doubt that the change of the zoning to allow the development of multi-unit residential developments in the Precinct has caused and continues to cause disruption to the amenity of the residents.

31 Despite that it must be accepted that the stage of construction at each development site is different. Therefore, each development must necessarily have different amenity impacts. In my opinion the Act requires that I have regard to the merits of the individual modification application particularly, any feasible and reasonable work practices the developer proposes to minimise unacceptable noise and traffic impacts generated by its use of the site outside the standard hours.

32 Based on the evidence, the Council's resolution to restrict the work hours for all multi-unit residential development in the Mowbray Precinct on a Saturday was made with little (if any) public consultation. There is no evidence of consultation with interested persons, including the affected developer community. Despite that fact, the condition restricting work on Saturday has been imposed (without regard to individual circumstances) on all development consents granted for multi unit residential flat developments in the LGA since March 2013.

33 The weight to be given to a policy decision made without or only limited public and stakeholder consultation is discussed in the decision of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 at [86] [88], [89 - 93]. Having regard to those principles and the particular circumstances of this case I am of the opinion that the Council's reslolution should be given little weight in the assessment of this modification application. There must be some flexibility in the application of the Council's condition in each case, depending on the stage of construction and the impacts actually generated. The fact that the condition has been imposed consistently to date on major construction consents does not preclude, where appropriate, its variation in the particular case.

34 Mr Wilson believes that the standard multi-unit development construction condition will be varied permanently in the next 2 - 4 years when all multi-unit residential development in the Precinct has been completed. However, in this case the shell of the development has been constructed and the applicant is prepared to adopt feasible and workable practices to reduce noise and traffic impacts generated by extended work hours on Saturday.

35 In this case the applicant has agreed to the imposition of conditions on the consent which limit the type of works and tools used during extended construction work from 12 noon until 4pm. Furthermore, it agrees to the imposition of conditions which require noise monitoring and parking of workers' vehicles in the basement car park. Obviously, compliance with the conditions is dependant upon appropriate supervision and in this case the site manager is nominated as the responsible person in the conditions. The Court does not assume non-compliance with conditions, which are feasible and workable as is the case in this appeal according to Mr Godson.

36 I understand the reasons why the current conditions need to be modified and I accept that in this case and at this stage of the development they operate unreasonably - workers refuse to work for the short period unless paid for the day. The condition causes construction delay and/or financial imposts.

37 In circumstances where the applicant is willing to address any unreasonable adverse impacts generated by working for a longer time on Saturday it is appropriate to consider those measures rather than adopt a standard position. After such consideration and based on the stage of construction, including the potential for onsite parking for workers, together with the applicant's agreement to limit the tools and type of work during the extended work hours and the acoustic treatments and monitoring proposed by Mr Godson I am of the opinion that an extension of the work hours from 12 midday until 4pm on a Saturday is reasonable in this case.

38 In my assessment the additional conditions volunteered by the applicant set out in Exhibits 8, H & J will address the amenity concerns anticipated by Mr Wilson's evidence.

39 Having said that however, I accept his evidence that tradesmen often arrive earlier than start time and may cause noise in the area. Therefore, the amenity of the neighbours is better preserved on the Saturday if the start time remains at 8am. Accordingly, I decline to modify condition 13 to allow work for an additional 1 hour from 7am to 8am on Saturday morning in this case. The Guidelines - which I accept are no more than Guidelines - and are focussed on large infrastructure projects such as road works - support Saturday work hours until at least until 1pm. The additional impacts after 1pm until 4pm, in my assessment, will be controlled by the measures proposed by the imposition on the consent of the applicant's additional conditions H and J.

40 For the above reasons I have decided to modify condition 13 - as discussed.  However, the extended work hours on Saturday cannot operate until the completion of the basement carpark when the site workers will be required to park in that area rather than on the local streets.

41 Accordingly, the Court orders:

(1) The appeal is upheld.

(2) Development Consent D37/13 approval by Lane Cove Council on 18 September for demolition of 4 dwelling houses and the construction of a residential flat building comprising 71 units and onsite parking of 100 cars in relation to the land at 15-21 Mindarie Street Lane Cove, is modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979 in accordance with the conditions of consent in Annexure A (Exhibit 8).

(3) The exhibits are returned.

Susan Dixon

Commissioner of the Court

Amendments

10 September 2014 - typographical corrections
Amended paragraphs: various

Decision last updated: 10 September 2014