Posted on January 8, 2019 by Stuart Simington
There goes the (amenity of the) neighbourhood….
Consent authorities regularly impose a condition on development consents to the effect that the development approved must be conducted in a manner so as not to interfere with the amenity of the neighbourhood. The Court recently provided guidance on the obligation imposed by the terms of such a condition and the analysis that should be undertaken to ascertain whether the condition has been breached.
In Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) 2018 [NSWLEC] 153, the Council alleged that Hunter Industrial Rental Equipment Pty Ltd was carrying out development by way of a quarry, in contravention of a condition of its 1991 development consent (Condition), which prescribed that:
“The development being conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.”
In considering whether the condition had been contravened, the Court had to consider the following two questions :
- what area constitutes the neighbourhood for the purpose of the condition; and
- whether the quarry had interfered with the amenity of that neighbourhood?
What constitutes the “neighbourhood?”
Acting Justice Molesworth held that the term “neighbourhood” must take its meaning from its context.
His Honour considered the decision in Graham John De Martino Pty Ltd v Parramatta City Council (1964) 10 LGRA 104 at 107 which considered the meaning of the word ‘locality‘ and held that in a context which comprehends injury to or interference with its amenity, the neighbourhood, generally speaking, will be at least as extensive as the area in which the effect of the injury or interference may be experienced.
Accordingly, His Honour determined that the relevant neighbourhood was not limited to the immediate area of Martins Creek in which the quarry was located, but also included the nearby town of Paterson because it was the preferential truck route for a substantial proportion of trucks associated with the quarry and it experienced traffic-related impacts associated with the quarry.
Whether the quarry had “interfered” with the amenity of the neighbourhood
His Honour noted that the Condition prescribed ongoing obligations to comply, from the moment the quarry commenced operations through to the time in the future when it would inevitably cease. Therefore a baseline from which the interference with amenity should be assessed, needed to be established. His Honour nominated as the baseline, the approved level of truck movements envisaged at the time of the issue of the consent.
Based on the evidence, His Honour was satisfied that the impacts of noise and vibration levels attributed to quarry-related vehicular movements had dis-proportionally and very significantly increased, far beyond that originally forecasted at the time of the consent was issued and were being experienced as far away as Paterson.
His Honour therefore held that the condition had been contravened because the amenity of the neighbourhood had been, and was being interfered with.
This case establishes that persons seeking to enforce compliance with a condition to the effect that the development approved must be conducted in a manner so as not to interfere with the amenity of the neighbourhood, must be able to ascertain the geographical parameters of the ‘neighbourhood‘ and demonstrate that the level of interference has increased by reference to a baseline, envisaged at the time the consent was issued.
A copy of the judgment can be accessed here.
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