Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 227

Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 227

The proposed draft LEP and Green Square planning proposals were too uncertain and remote to justify materially constraining the existing lawful industrial use. There was presently no unacceptable adverse noise impact from trucks using designated streets at night and no real likelihood of such impact in the immediate future. Future residential development should accommodate existing lawful industrial operations. The council's broad proposed noise condition for any future residential or mixed use premises was not justified, while the applicant's concession for existing residential premises and specified future residential properties was appropriate subject to review. However, because...

Jurisdiction
Australia
Judgment Date
26 September 2001
Procedural Posture
Class 1 Application/appeal for Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing; Appeal Dismissed Subject to Notice of Motion by Either Party to Re Open Within Seven Days
Outcome
Appeal dismissed subject to a notice of motion by either party to re-open within seven days.
Legal Topics
['modification of Development Consent' 'night Time Operation of Concrete Batching Plant' 'use of Designated Streets by Trucks at Night' 'future Mixed Use and Residential Development' 'weight to Be Given to Proposed Draft Local Environmental Plan' 'conditions of Consent']
['planning and Environment Law' 'development Consent' 'noise Impact Assessment'] ['modification of Development Consent' 'night Time Operation of Concrete Batching Plant' 'use of Designated Streets by Trucks at Night' 'future Mixed Use and Residential Development' 'weight to Be Given to Proposed Draft Local Environmental Plan' 'conditions of Consent']

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Procedural Posture

Class 1 Application/appeal for Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing; Appeal Dismissed Subject to Notice of Motion by Either Party to Re Open Within Seven Days

Legal Issues

  1. 1 ['Whether conditions limiting night time traffic and operations of the concrete batching plant should be modified to allow unlimited night time use of specified local streets and seven-day night time plant operation.' 'Whether the 45dB(A) LAeq(15minute) noise criterion should apply to existing residential premises and future residential properties, and which future properties are relevant.' 'What weight should be given to the proposed draft Local Environmental Plan and the Green Square planning proposals.' 'Whether conditions should require immediate installation of an automatically opening door or curtain to the slump tunnel or restrict night time loading to three trucks per hour.' 'Whether a time limit or review mechanism should apply to amended night time operating conditions.']

Ratio Decidendi

The proposed draft LEP and Green Square planning proposals were too uncertain and remote to justify materially constraining the existing lawful industrial use. There was presently no unacceptable adverse noise impact from trucks using designated streets at night and no real likelihood of such impact in the immediate future. Future residential development should accommodate existing lawful industrial operations. The council's broad proposed noise condition for any future residential or mixed use premises was not justified, while the applicant's concession for existing residential premises and specified future residential properties was appropriate subject to review. However, because...

Court Disposition

Appeal dismissed subject to a notice of motion by either party to re-open within seven days.

Orders

  • ['Appeal dismissed subject to a notice of motion by either party to re-open within seven days.' 'The exhibits be retained for seven days or until any application to re-open is heard.']