Statement of Environmental Effects - Liverpool City Council

Statencnt of Inviri:nnenNal Efiecl$
Section 9S (AA) Amgndmenl
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PLANNING
STATEMENT OF ENVIRONMENTAL EFFECTS
Section 96(AA) Amendment to D/2009/1096
Refrosp ective Approval for Use of a 3.6m high
Northern Acoustic Barrier for Direct
Frei ght Di stri b uti o n Warehouse
20-26 Scrivener Street Warwick Farm
April 2013
@ Andrew Martin Planning Pty Ltd
Reproduction of this document or any part thereof is not
permitted without the prior written permission of Andrew Martin Planning Pty Ltd
Andrew Martin Planning Pty Ltd - Town I Urban I Environmental ABN 71 101 798 001

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1.0 lntroduction
1.1 Reference is made to the Development Consent No. D/2009/1076 (the
'consent') issued to Benclutch Pty Ltd (CAN 102 045 821) on 13 August
2007 for Direct Freight Warehouse (DFE) Distribution Centre located at20-
26 Scrivener Street Warwick Farm.
1.1.1 The consent included the following condition relevant to this
Section 96 application: -
Condition 24; HOURS OF OPERATION
The hours of operation must be limited to 6:00am until9:30pm
Monday to Friday.
1.2 Under a Section 96 application to Council, the applicant proposed to modiff
the approved hours to allow 24 hour operation; that was subsequently
refused. The main issues raised by Councilwere:
1.2.1.1 Potential traffic conflicts between heavy vehicles and
equine activities in the extended, early morning period.
1.2.1.2 Acoustic issues concerning sleep disturbance arising
from the early morning passage of heavy vehicles
through the adjacent residential area.
1.3 The main traffic issue concerned the potential safety risks arising from truck
movements in the extended early morning operating hours. The trucks
require the use of a designated unrestricted B-Double Route. The main
safety risk concerned possible conflicts between handlers taking horses to
the track when they use and cross the existing roads, particularly Manning
Street, which would be subject to a redistribution of large vehicle
movements from 3:30 am.
1.4 The applicant appealed to the Land and Environment Court (1022 of 2012)
in order to facilitate a more orderly receipt and distribution of goods at the
warehouse. With consideration of Council's position the operators
recommended more suitable traffic movements as follows: 3.30am to
10.30pm Monday to Friday, 3.30am to 12.00 midday Saturday and 7.00am
to 7.00pm Sunday.
1.5 Commissioner Hussey considered the disparate traffic opinions in
conjunction with the associated acoustic impact issue, the main concern in
this regard being sleep disturbance impacts. Notwithstanding this, the
appealwas upheld.
Additional conditions were imposed inclusive, however not limited to the
requirement of a Traffic Management Plan (TMP) and Condition 1 inserted
to read: Prior to the commencement of the extension to the hours of
operation an acoustic barrier to a minimum height of 2.5m (or such other
height as may be approved by the Council) r.s fo be constructed in
accordance with the plan titled 'Proposed acoustic barrier on Northem
boundary' Drawing No. 001 Revision B and dated September 2012.
This requirement for a barrier is the subject of this retrospective Section
96(A4) application to amend the condition to read: Prior to the
commencement of the extension to the hours of operation an acoustic
banier to a minimum height of 3.6m 2,5m (or such other height as may be
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approved by the Council) rs fo be constructed in accordance with the plan
titled 'Proposed acoustic barrier on Northern boundary' Drawing No. 001
Revision C and dated December 2012. B and dated September 2012,
1.6
1.7
1.8
The barrier has been constructed with pre-engineered Wallmark modular
panel fence that satisfies provisions and appropriate standards of 'Buildings
of lmportance Level 1 and 2 in the Building Code of Australia (BCA)' as well
as the intent of the condition to limit noise impact from traffic movements on
and around the site. Consent is sought for retrospective approval for the
use of the acoustic barrier.
This application for retrospective consent for 'use' of the acoustic barrier
exceeding the recommended height is supported by a detailed drawing
prepared by the Robert Paris Design numbered 001, titled 'Proposed
acoustic barrier on Northern Boundary' Revision C and dated December
2012. The drawing reflects the intent of the Court approval. The as
constructed drawing presented represents a true and accurate record of the
'as built' structure.
In relation to the modified as constructed works, it is noted that a private
certifier has the legal capacity to issue a construction certificate for works
that are not inconsistent with the approved DA plans.
1.8.1 A CC has not been issued forthe works, however it is notable CC
plans are not required to be identical to the approved DA plans in
citing Her Honour Justice Pain in Lesnewski v Mosman Municipal
Council and Anor 120041 in the New South Wales Land and
Environment Court on 29 March 2004 and her comment in
paragraph 32 lt is clear that "inconsistent" does not mean that a
construction cerlificate must be identical to the development
consent plans. Accordingly, the possibility of some variation
between the terms of development consent and the design and
construction of the building is contemplated by the legislation.
1.9
ln accordance with the Courts ruling in Windy Dropdown Pty Ltd v
Warringah Council an applicant is able to retrospectively apply for works
that are constructed.
1.9.1 The applicant is required to adhere to a number of the conditions of
the consent with regards to other issues the subject of the matter
such as; hours of operation and compliance with a traffic
management plan, however it is considered that there are no
stylistic changes made to the already constructed approved
northern acoustic barrier that would not normally prevent the
issuing of a construction certificate. When considered either
individually or collectively the works do not radically alter the
approved development. Section 96 of the EP & A Act 1979 is
therefore the appropriate mechanism to deal with the 'as built'
modification to the approved plans.
1.10 A planning principle relevant to this matter is Sfock/and Developments v
Woollongong Cou ncil and others 120041 N SWLEC 470.
1.10.1 Planning principles assist when making a planning decision -
including: where there is a void in policy; or where policies
expressed in qualitative terms allow for more than one
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interpretation; or where policies lack clarity. This is the case in this
circumstance as there are no specific Liverpool Council policies or
DCPs that addresses traffic noise.
1.10.2 This case was about the impact of noise from a factory adjoining
residential land and specifically appropriate attenuation measures.
1.10.3 As a general planning pinciple, where there is conflict between a
noise source and a sensitive receptor preference should be given
to the attenuation of any noise from the source rather than at the
sensifiye receptor. Ihts ,s true whether the noise source generated
by a proposal is a new noise and the receptor exisfs or the noise
generator exrsfs and the receptor is a proposed use. ln deciding
whether the noise should be attenuated at the source,
consideration should be given to the degree of conflict between the
appropriate noise goals, the difficulty and cosf assoclated with
treating the noise at the source, the willingness of the noise
generator to be treated and the potential amenity impacts
assoclafed with noise attenuation at the receptor. Depending on
the circumsfances of the case, the cost of attenuation measures
may be borne by either pafty or shared between them, irrespective
of the location.
1.10.4 lt is considered in this circumstance the agreed upon attenuation
measure recommended for the DFE site is addresses the principle
and the barrier as constructed prior to CC results in a superior
outcome as that recommended agreed upon by both the parties.
1.11 This application for modification is made pursuant to section 96(M) of the
Environmental Planning and Assessmenf Acf 1979 (the 'Act'). This
statement offers Council an independent review of the proposed
amendment to the consent, particularly as to whether the amendment is
considered to be 'substantially the same' as the original approval in
accordance with the requirements of s.96 of the Act.
1.11.1 The proposed modification to the original approval does not alter
the approved land use and does not result in additional adverse
impacts on the natural and built environment.
1.11.2 The amended proposal can easily operate under the existing
conditions of consent without fear of environmental harm or
additional amenity impacts upon surrounding sites.
1.11.3 The amended proposal does not alter any material or essential
component of the original approval and no specific additional
conditions of consent are necessary.
2.0 Site and Context
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2.2
The site contains a warehouse distribution centre for Direct Freight (DFE)
with access on Scrivener Street along the western boundary. The site is
described as Lot 201 in DP 801262. lt is irregular in shape, with a
combined street frontage to Scrivener Street of 269m and an area of
approximately 7.416 hectares. The site provides ample on site parking and
a manoeuvring area for trucks loading and unloading goods.
The site is located within the general Warwick Farm industrial area and
adjoins Rosedale Park to the north and various industrial uses to the south
and west. Residential development exists to the north west of the site. To
the east lies the Liverpool Sewerage Treatment Plant. lmmediately
northeast is a reserve and lagoon subject to high risk flooding and bushfire
hazard.
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2.3 Whilst the subject property is situated within the Warwick Farm industrial
area, all vehicular access is through the adjoining low density residential
area containing equine activities. There is one route for vehicle access this
industrial area, which is via Priddle Street, Manning Street, Munday Street
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Etatement of Hnvironr"nental Effects
Section 96 (AA) Amendment
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Figure 1: View from west of northern
acoustic barrier along site boundary
adjacent to bushland reserve
Figure 2: View from east of northern
boundary barrier
Figure 3: View from
warehouse building
west of the site
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Figure 4: View of substantial landscaping
adjacent to the barrier
Figure 5:View from western side of
Scrivener Street of barrier adjacent to site
parking entrance
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3.0 Assessment -'subsfantially the same'
3.1 The requirement for an amended development application to
'substantially the same' as the original development arises from
requirements of s.96 of the EP and A Act 1979.
be
the
3.2 Application of the phrase 'substantially the same' has been the subject of
much legal debate. Council's vary in the application of this clause based
on a degree of subjectivity given there are no numerical standards against
which to test the amendment.
3.3 In respect to the subject section 96(AA) application there is no change to
the proposed land use, which is maintained as a direct fright express
distribution warehouse development. The Land and Environment Court has
found amended development not to be substantiallv the same where
significant land use changes are proposed under the amended application
(i.e. for example retail to residential).
3.4 This is not the case under this amended application as the main features
material and essential of the original Court approval 10022 of 2012 are
maintained. There is a minor amendment to the essential component of
the approved development being the height of the approved acoustic
barrier (the approved barrier being 2.5m high; the constructed barrier is
3.6m high) to be amended as part of the subject application.
3.5 The nature of Section 96 of the EP and A Act 7979 assumes that there is
likely to be some change between an originally proposed (and approved)
development and a modified one. The decision of North Sydney Council- v
- Michael Standley & Assocrafes Pty Ltd, (97 LGERA 433,12 May 1998,
Mason P), added to the understanding of the appropriateness of permitting
a modification as follows: "Parliament has therefore made it plain that a
consent ls nof sef in concrete - it has chosen to facilitate the modifications
of consents. conscious that such modifications may involve beneficial cost
savrngs and / or improvements to amenity."
In contemplating consent for a modification, it is the degree of change,
which determines whether the consent authority has the power to approve a
modification or whether there is no such power where the application fails to
pass the threshold test under Section 96 of the EP and A Act 1979.
3.6 The word to modify means 'to alter without radical transformation' as
confirmed in Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414.
The change proposed do not individually or collectively constitute a radical
transformation. The amended application does not modify or delete an
essential element of the design or change the approved categorisation of
the development being a distribution warehouse development.
3.7 The main consideration under Section 96 is what constitutes "the same
developmenf' and what are the parameters defining "substantialff'. In the
case of Vacik Pty Limited and Penrith Council (unrepofted 24 February
1992, Stein J), the Court held that substantially means "eqqenljally or
materiallv or having fhe same essence" and that the substance of
determining these matters rests with a comparative analysis between the
consent being varied and the modification and this approach is supported
by the decision of Bignold J in Moto Projects (No 2)
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Pty Ltd and North Sydney Council (NSWLEC 280, Appeal 107414 of 1997,
17/12/99).
3.8
3.9
When considering material impact; the proposed modifications are not of
such significance to warrant a new application. By way of assistance, the
Macquarie Concise Dictionary defines material to mean, amongst other
things: of such significance to be likely to influence the determination of a
cause. Other common meanings of material in relation to impacts would
include real, not incidental or slight.
By way of relevant examples of the Court:
ln Tipalea Watson fty Ltd v Ku-Ring-Gai Council [2003] NSWLEC 253 the
Commissioner confirmed that external changes to an approved building are
acceptable under a Section 96 application where external appearance is
only but one aspect of a development that makes a whole entity. In that
case the Council considered the overall changes to result in a"significantly
different architectural appearance and charactef' of the development
offering a "different presentation" to the streetscape and neighbouring
properties however the Court did not agree with this position. The relevant
extracts are provided below:
'37. My appraisal of the documentary materials leads me to the conclusion
that the modifications do not result in a development that is significantly
different in terms of architectural appearance and character from the
originally approved development.
38. No doubt the modified development will create some changes in the
external appearance of the approved development but such changes could
not be said to create more than "modifications" to the originally approved
development. That is they represent changes to the external appearance
that do not radicallv transform the originally approved development.
Ihis ls especially so in the context of the elements of the approved
development that are not changed by the modifications which elements are
enumerated in Mr Fletchels "summary of changes" tabulated document that
I have earlier quoted (see par 25).
39. /f ,s important to note that there is no evidence in this case that any of
the features of the external architectural appearance or character of the
approved development that are to be modifred was a particularly
important, material or essenfial feature of the development as
originally approved, such that its elimination (or modification) would justify
a finding, such as was made in Moto Projects, that the development as
modified, was on that account, not substantially the same development as
originally approved.
40. This is not to gainsay that the external design and appearance of a new
development is invariably a matter of interest for environmental planning or
that the extemal design and appearance of a development is an intinsic
element of a development that manifests itself physically. However, and to
state the obvious, the external appearance of a development is but one
feature of the development considered as a whole entity." (our
emphasis)
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The above has similadties to the subject application given that the changes
to the plan offer the same development, with what is considered an
improved form being a higher barrier that would achieve a greater level of
privacy and amenity for neighbouring commercial/similar land use type
developments, that is not however considered radically different.
The development as amended achieves an equal performance in terms of
architectural presentation and design efficacy when compared to the
approved development and will not impact upon site or surrounds by way of
noise or other means. The acoustic barrier is sited so as to achieve over
and above its desired performance.
3.10 ln the matter of Wang v Wollahra MC12006l NSWLEC 106, the Court
approved the addition of an additional storey at"lower ground floor level
(containing pool, sauna, pool plant area, ac area and bathroom" such that
the approved two storey building was now a 3 storey building and still
deemed the proposal to be substantially the same.
3.11 In the matter of 258 Crows Nesf Development Pty Ltd v North Sydney
Council[2006] NSWLEC 420, the Court approved an additional residential
unit on the approved roof terrace level and still deemed the proposal to be
substantially the same.
3.12 ln the matter of McKirdy v Hunters Hill Council[2005] NSWLEC 200, the
Court approved a section 96 to increase a basement area by some 28%,
notwithstanding it was contrary to a specific condition of consent.
3.13 The retrospective proposal before Council is in essence the same
development given that the function of the site operations are in the same
manner as those originally being undertaken when the northern acoustic
barrier was approved at a height of 2.5m.
2.14 An acoustic report prepared by Renzo Tonin stated the approved barrier
would achieve compliance with the relevant noise standards, the amended
design the subject of this application for retrospective approval can
demonstrate compliance with those standards consequently the
development is considered substantially the same.
3.15 As noted in the introduction of this report the modified conditions of consent
contained within the JudgemenVOrder Attachment 'B' approved the
amended hours with inclusion of the following condition: Prior to the
commencement of the extension to the hours of operation an acoustic
barrier to a minimum height of 2.5m (or such other height as may be
approved by the Council) rs fo be constructed in accordance with the plan
titled 'Proposed acousfic barrier on Northern boundary' Drawing No. 001
Revision B and dated September 2012.
3.15.1 lt is reasonable to argue that the Commissioner is proceedings
acknowledged an alternative height may be considered suitable for
the purpose of an acoustic barrier at the discretion of the Council.
3.16 A barrier/fence specially designed for sound blocking can reduce the
amount of noise transmission. The two most important elements for an
outdoor sound barrier are height and mass as follows:
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Height
. To effectively block noise, outdoor sound walls need to be tall. lt is
not enough for the barrier to block the noise source from view,
because sound travels in all directions and not only straight lines.
For improved effectiveness, it is considered the higher, the better
with consideration of other potential impacts such as built form,
mass, overshadowing. The barrier the subject of this application for
retrospective approval does not have a detrimental impact upon the
site or surrounding localities privacy and amenity.
Mass
. Any solid, massive substance will block sound; the thicker, the
better. The sound barrier fence should be designed and constructed
so that there are no gaps or holes. Noise will be able to find its way
through any cracks or slits in the fence. The use of acoustical
caulking is sometimes implemented to achieve compliance. In this
circumstance, the Wallmark modular panel fencing is appropriately
deigned and constructed to achieve desired compliance.
3.17 ln addition to the solid barrier, there is substantial landscaping abutting the
boundary including trees, bushes, and other vegetation as shown in Figure
4 above, that assist in blocking sound, and reduce some high-frequency
noises. The landscaping also provides for improved visual privacy for
adjacent occupants in addition to the perception that noise may seem less
intrusive if its source is hidden from view.
3.18 The existing is considered reasonable and addresses the principle issue of
noise attenuation for vehicular movements on and around the site,
considered important in deliberation of this matter.
3.19 The barrier is not considered unsightly or an inappropriate design in relation
to its context and capable of achieving compliance with the recommended
noise limits measured in accordance with the guidelines in the EPA NSW
Industrial Noise Policy for both Industrial and Residential Zones. The barrier
shall ensure that the road traffic noise generated from the traffic will not
exceed the Road Noise Policy limit LAeq + 2 dB(A) between 10.00pm and
7.00am.
3.20 It is recommended that retrospective approval be granted to the existing
barrier; particularly with consideration that the approval granted extended
hours for a 12 month trial period, and required further acoustic assessment
after commencement of extended operations in order to demonstrate
compliance with the prescribed noise limits as well as review the
effectiveness of measures implemented to minimum road traffic noise such
as the acoustic barrier. lf the report deems non-compliance, further
ameliorative measures and compliance testing would be required.
Consequently, it is considered reasonable that the existing barrier at a
height of 3.8m be included in the further acoustic compliance report to
demonstrate that it is reasonable, addresses the intent of its purpose being
noise attenuation for vehicular movements.
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Statement of Environmental Effects
Section 96 {AA) Amendment
20-26 Scrivener Road Warwick Farm
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3.21 The impact of a 3.6m high acoustic barrier made of the same material and
constructed in the approved location are generally considered the same as
the original approval. There is no change to a material or essential element
of the design used to justiff approval of the original application.
3.22 Accordingly, Council may proceed to a merit assessment so as to satisff
Section 96 of the Act given the amended development results in a
development that is substantially the same as that originally granted under
development consent.
AndrEw Marti* Plenning Ptv Ltd
Town I Urban I Environmental
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Statemenl of f fivironfirental fffects
Seclion 96 (AA) Anrendmenl
2S-26 Scrivener Ruad Warwick F*rnr
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4.0 Proposed Modifications
The 'as built' modification to the barrier are identified on the plan titled 'Proposed
acoustic barrier on Northern boundary' Drawing No. 001 Revision C and dated
December 2012 prepared specifically for this section 96 application:
4.1 Amended Gondition of Consent
The subject Section 96 (AA) application seeks retrospective consent for the use of the
already constructed acoustic barrier and amendment Condition 1.
4.1.'l Reword Condition 1 to read:
Prior to the commencement of the extension to the hours of operation an
acoustic barrier to a minimum height of 3.6m 25rn (or such other height as
may be approved by the Council) n fo be constructed in accordance with
the plan titled 'Proposed acoustic barrier on Nofthern boundary' Drawing
No. 001 Revision C and dated December 2012. W
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5.0
Assessment - Section 79C of the EP & A Act 1979
This section of the report considers the amended development assessed against
the relevant heads of consideration of Section 79C of the EP & A Act 1979.
5.1
Relevant Environmental Planning lnstruments (EPl's)
ln accordance with Section 79C(1XAX|) of the EP & A Act 7979 Council in
determining a development application must take into consideration provisions of
any EPI's. The following assessment relates to proposed amendments and is not a
reassessment of the whole development.
5.1.1 Liverpool Local Environmental Plan 2008 (LEP 2008)
The main control is the Liverpool LEP 2008, under which the site is Zoned lN1 -
General Industrial and the subject development is permissible according to the Part
2 provisions.
The proposed Section 96(4A) amendment retains compliance with the LEP 2008
dated 18 January 2013, as the development remains permissible in the zone with
consent. Relevantly, the zone objectives include:
. To provide a wide range of industial and warehouse uses.
. To encourage employment opportunities.
. To minimise any adverse effect of industry on other land uses.
. To support and protect industrial land for industrialpurposes.
The adjoining zone containing the equine facilities is Zone R2 Low Density
Residential, which has the following objectives:
. To provide for the housing needs of the community within a low-density
reside ntial e nvironme nt.
. To enable other land uses that provide facilities or seruices to meet the day
to day needs of residents.
. To provide a suitable low scale residential character commensurate with a
low dwelling density.
. To ensure that a high level of residential amenity is achieved and
maintained.
Clause 16 Use of certain land atWarwick Farm in Zone R2
This clause specifically applies to this low density zone as follows:
(1) This clause applies to land in Zone R2 Low Density Residential, east of the
southern rail line at Warwick Farm.
(2) Development for the following purposes is permitted with consent: (a) animal
boarding or training establishments, (b) farm buildings, (c) veterinary hospitals.
Clause 1.2 Aims of PIan
The use of the acoustic barrier for a noise attenuation measure at a warehouse
distribution centre addresses Clause 1.2aims in particular aim (d)to strengthen the
regional position of the Liverpool city centre as the seruice and employment centre
for Sydney's south west region.
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Town I Urbsn I E'rrirnn,rnentt
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Clause 4.3 Height of buildings
(1) The objectives of this clause are as follows:
(a) to establish the maximum height limit in which buildings can be designed and
floor space can be achieved,
(b) to permit building heights that encourage high quality urban form,
(c) to ensure buildings and public areas continue to receive satisfactory exposure to
the sky and sunlight,
(d) to nominate heights that will provide an appropriate transition in built form and
land use intensity.
(2) The height of a building on any land is not to exceed the maximum height
shown for the land on the Height of Buildings Map.
The proposal complies with Clause 4.3 that requires that a building shall not be
erected to a height, across any point of a site, which is greater than the maximum
permitted in the map. The proposed retrospective consent is sought for
development at a maximum height of 3.6m consistent with the site controls.
Clause 5.3 Development Near Zone Area
This clause applies to any land located or is proposed to be constructed or
extended near a different zone.
The objective of this clause is to provide flexibility where the investigation of a site
and its surroundings reveals that a use allowed on the other side of a zone
boundary would enable a more logical and appropriate development of the site and
be compatible with the planning objectives and land uses for the adjoining zone.
The Section 96(AA) proposal for retrospective use of a structure to improve amenity
and reduce impact is not inconsistent with the objectives of both the industrial,
residential and infrastructure zones, and is considered desirable in this instance due
to compatible land use planning, infrastructure capacity and other planning
principles relating to the efficient and timely development of land.
Clause 5.11 Bush fire hazard reduction
The site is located within a land that is prone to bushfire hazard.The RuratFires Act
1997 also makes provision relating to the carrying out of development on bush fire
prone land. The site is subject to bushfire hazard. The actual bushfire risk on an
individual property is determined by undertaking a bushfire hazard study by a
recognized assessor assessing the risk as part of an application.
The amended proposal continues to address the objectives and controls for bushfire
prone land management and will not increase the likelihood of fire affecting the site
or surrounds.
The amended proposal will not impact upon environmental attributes or features of
the land, nor increase the risk of natural hazards such as bushfire or flooding that
may affect the land.
Clause 7.7 Acid sulfafe soils
The objective of this clause is to ensure that development does not disturb, expose
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or drain acid sulfate soils and cause environmental damage. ongoing use of the
structure will not have an environmental impact with respect to this clause.
Clause 7.8 Flood Planning
clause 7.8 applies to land that is at or below the flood planning level. The site is
located within land that is prone to flooding. A portion of the site is high risk as well
as the adjacent land in the reserve and lagoon to the north and rear of the site. The
remainder of the site is either low to medium risk.
The relevant objectives of this clause are: (a) to maintain the existing flood regime
and flow conveyance capacity, and (b) to avoid significant adverse impacts on flood
behaviour, and (c) to limit uses fo those compatibte with flow conveyance function
and flood hazard, and (d) to minimise the risk to human tife and damage to property
from flooding.
Development consent is required for development for the following purposes on
land in a flood planning area. The structure has development consent issued by the
Court complying with Clause 7 .4 and is not considered to affect use or operation of
the site in the incidence of a flood.
In general, the proposal for retrospective consent under Section 96(A4) for the use
of an 'as built' 3.8m high acoustic barrier along a portion of the northern boundary of
the warehouse distribution centre, recommended by the Court as an attenuation
measure is considered reasonable and complies with the aims and objectives of the
LEP 2008,
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6.0 Non Statutory Development Control plans
The following non statutory planning polices are identified for further consideration.
The associated development controls are contained within the Liverpoot DCP 2OOB
(DcP).
6.1 Liverpool Development Gontrol Plan 2008 (DCp 2008)
Part 1.1 General Gontrols for all Development
Secfion 5 Bushfire Risk
This section applies to land identified as being Bushfire Prone Land or designated
as Bushfire Prone Lands Buffer Zones on Liverpool City Council Bushfire Prone
Land Maps.
The site is subject to fire hazard, as discussed above. The proposal for
retrospective approval for the use of an acoustic barrier does not impact upon
management plans in the incidence of fire. Ongoing maintenance may to be readily
carried out by the responsible landowners or occupiers.
Section 7 Development near Creeks and Rivers
The site is adjacent to a lagoon at the rear. The proposal addresses the following
relevant objective: (f) To protect the visual amenity of the water and land interface.
Secfion 9 Flooding Risk
The site is located within a high risk flood prone land area. The proposal for
continued use of the acoustic northern barrier addresses the following relevant DCP
objectives:
a) To minimise the potential impact of development and other activity upon the
aesthetic, recreational and ecological value of the wateruay corridors.
d) To ensure that the economic and social costs which may arise from damage to
property due to flooding is minimised and is not greater than that which can be
reasonably managed by the propefty owner and general community.
e) To limit developments with high sensitivity to flood risk (e.g. critical pubtic
utilities) to land with minimal risk from flooding.
fl To prevent intensification of inappropriate use of land within high flood risk areas
or floodways.
g) To permit development with a lower sensitivity to the ftood hazard to be tocated
within the floodplain, subject to appropriate design and siting controls.
h) To ensure that development shoutd not detrimentatty increase the potentiatflood
affectation on other development or properties either individually or in combination
with the cumulative impact of development that is tikely to occur in the same
floodplain.
The proposal does not impact upon management in the site in the incidence of
flooding. The proposal is not for a change of use.
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Part 1.2 Additional General Gontrols for Development
This section applies of the DCP applies to development, which generates the need
to provide car parking and loading facilities, generates vehicle and pedestrian
movement.
This section 96(4A) application for retrospective consent for the use of preconstructed
Court approved acoustic barrier along the northern site boundary and
adjacent to the site car parking area has been assessed against the objectives:
b) To ensure fhaf access is designed to accommodate the size and volume of
vehicles likely to visit the site.
e) To ensure that adequate landscaping/tree planting is provided to improve
amenity and reduce visual impact of car parking and loading areas.
f) To ensure that car parking does not inteiere unreasonably with the amenity of
the neighbourhood.
g) To ensure the provision of the appropriate car parking depending on location.
The approved acoustic barrier structure addresses the above objectives in that it is
designed as not to impact upon the on site vehicle management or neighbouring
development.
The barrier constructed to a height of 3.8m high will ensure that ongoing use of the
site parking and loading areas will not impact to the surrounding liteJ ny way of
noise.
Retrospective approval for the use of the barrier adjacent to landscaping also
reduces visual impact of the site parking areas. No changes are proposed 1o the
existing parking, site access/egress or on site vehicular movements.
Secfion 2.1 Overall Design Considerations
The layout of a car parking area shatt consider the entire facility, inctuding car
parking modules, landscaping, circulation aisles and roadways, access dhveways
and, if necessary, frontage road access as an integrated coordinated design.
The management of traffic within a car parking facility should take into account the
need for traffic to move to and from the frontage road with minimum disruption to
passrng traffic and maximum pedestrian safety.
The approved location of the acoustic barrier is appropriate to attenuate noise.
This amended proposal to use the 3.6m high 'as built' northern acoustic barrier will
contribute to reducing the impact of noise \ sound generated on and around the site.
This is demonstrated by the fact that sound is essentially propagated
omnidirectionally, which means that a soundwave once it has let the point of origin,
move away in all directions and it can be heard in any direction from the source
(though the amplitude wilt be different here or there.
Retrospective consent for the use of the constructed barrier satisfies the intent of
the Court consent albeit built to a greater height than that recommended. lt is
considered that the additional height was to allow presumably greater flexibility long
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term with truck movements and generally better compliance with consideration that
acoustic report prepared by Renzo Tonin identified a lower barrier height would
achieve the desire result and compliance with noise limitations.
The barrier is supported by engineers certificates confirming the fence is structurally
sound and does not encroach over the boundary. The barriers panel strength has
been certified by a structural engineer from Holmes Mcleod Consulting Engineers
Pty Ltd for post height, spaces and footing sizes to the appropriate standards.
Design loading has been obtained in accordance with AS 1170.1, AS1170.2 and
AS4055 as appropriate. Structural Design has been performed in accordance with
AS4100, AS/NZS 1665.1 and panels physically tested to comply with specified
loads when installed in accordance with the correct specifications, details and
limitations prescribed by Wallmark.
No changes are proposed to the site dimensions, site layout or building footprint,
front, side or rear boundary setbacks. No changes apart from an increase in the
approved height of the barrier by 1.1m are proposed.
The amendment is considered minor and reasonable, as there is no unnecessary
bulk added to the northern boundary.
The barrier does not detrimentally impact upon the existing streetscape and
landscape character provides privacy, shade, safety/ security, is considered an
appropriate scale in terms of its context adding visual interest. As well as acting as a
noise attenuation measure.
The amended proposal does not impact upon site or neighbouring development
privacy and amenity and improves amenity by way of reducing noise. Retrospective
consent for ongoing use of the barrier is considered appropriate in this
circumstance.
Part 7 Development Industrial Areas
PartT of the DCP must be read in conjunction with part 1.1 and 1.2 of the DCP.
PartT deals with industrial development on the basis of the following relevant
controls:
Secfion 7 Landscaping and Fencing
Screen Fencing
Where fencing is considered necessary to screen areas such as outside storage it
shall normally consist of maximum height of 2m, be solid construction and located
behind the landscaped area. Where noise insulation is required, consider the
installation of double-glazing or other noise attenuation measures at the front of the
building rather than construction of a high solid form fence would be recommended.
The Council and Court agreed in this unusual circumstance, an exceptional barrier
would be appropriate. The existing barrier is considered a reasonable solution and
addresses the contentions of the matter.
Secfion 9 Amenity and Environmental lmpact
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Background
Industrialand related developments have potential to cause a significant
environmental impact in terms of odours, noise and discharges. bome of these
impacts are addressed by the Protection of the Environmeni Operations Act 200g.
However the design and operation of development in industriaiareas can contribute
to avoiding these issues.
The impacts may be on more sensitive land uses in nearby residential areas or on
other uses within the industrial areas. As the range of usei permitted in the
industrial areas is quite significant it is necessary to consider these impacts on land
uses within the industrialzone.
Objectives
a)To ensure that neighbouring properties are not adversely affected from any
operation on sife.
b)To minimise the potentiatdetimental impact of pottution, dust, noise, odour and
traffic.
Controls
Hours of operation
Development which woutd have an adverse impact on adjoining or nearby
residential areas witt be timited to 7.00 am and 6.00 pm uonaay b Friday and 7.00
am to 12.00 midday on saturday and no work to be'undertakei on suniays.
As discussed in the introduction section of this report the most critical issue in this
matter is hours of operation in relation to traffic management and acoustic impact
that may result in sleep disturbance.
As council's DCP does not address traffic noise, reference may be made to the
provisions of the EPA's Environmental Criteria for Road Traffic Noise (ECRTN). The
applicable criterion arising from vehicular traffic is the EPA's Road Noise policy
(RNP), which came into effect on 1 July 2011. Under the RNp the access road to
the site is classified as sub-arterial.
The criteria for existing residences affected by additional traffic as stated in Table 3
in the RNP, is a levet of 60 LAeq (15 hour) foi z.ooam to 10.00 pm and a level of 55
LAeq (9hr) for 10.00pm to 7.00 am.
Clause 3.4.1 of the RNP states that where the existing traffic noise levels are above
the assessment criteria then a range of feasible and reasonable mitigation
measures should be considered. The RNp recommends that any increase in the
total traffic noise level on existing roads generated by land use divelopments
should be limited to 2 dB above that of the corresponding 'no build option,.
In respect of sleep disturbance, assessment of the site operations confirmed that
while there is ongoing review of this issue, the main noise characteristics that
influence sleep disturbance are the number of noisy events heard distincfly above
the background level, the emergence of these events and the highest noise level.
The RNP refers to the NSW RTA practice Note 3 of the Environirentat Noise
Management Manual (ENMM), which outlines a protocol for assessing and reporting
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on maximum noise levels and the potential for sleep disturbance however it's
application should be used with precaution.
Another issue is noise impacts from the site operations between 5.00am to 6.00am.
council's expert assessed this matter and recommended a2.5m high acoustic
barrier along the northern boundary to ensure that noise levels com-ply with the
EPA's Industrial Noise policy.
The proponent agreed with this solution.
The structure built is considered superior to that suggested and will achieve the
desired acoustic atten uation.
Retrospective approval for the use the structure (3.6m high acoustic solid barrier) is
considered appropriate.
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7.0 Conclusion
7.1 The subject Section 96(4A) application described in this statement and on
the plan prepared by Robert Paris Design is considered substantially the
same development as that originally approved by the Court.
7.1.1 This proposal seeks retrospective consent for use of an
barrier constructed to a height of 3.6m; considered a
outcome to the recommended 2.5m high barrier.
acoustic
superior
7.2
The existing conditions of consent will continue to ensure that an adequate
level of environmental performance is achieved.
7.2.1 The hours of operation for the heavy vehicles being permitted on
the basis of a trial period will allow for TMp measules to be fully
implemented and provide a reasonable period to demonstrate
compliance.
7.2.2 The evening period extension is limited to 10.00pm to enable the
'horse area' residents a reasonable opportunity for sleep period
prior to their early morning horse training activities. The early
morning heavy vehicle movements do not commence before
4.00am.
7.2.3 A relatively low number of heavy vehicle arrivals could be
effectively scheduled to avoid the "quiter" period from 3.30 am and
4.00am, minimising any adverse traffic and noise impacts.
7.2.4 An effective noise and traffic monitoring program will be
implemented to provide accurate evaluation LriteriJat the end of
the trial period.
7.3
7.4
7.5
The fact that the built form (height of the barrier is 3.6m) has been altered is
not a reason to exclude the change from a section 96 assessment. The
case law review provided within this statement examples where external
changes have been made to approved developments and have been
deemed to be substantially the same by the Court.
This approval seeks retrospective consent for the use of the approved ,as
built' northern acoustic barrier in that the works are in the public interest.
Based on the discussion in this amended statement it is recommended that
Council support the Section g6(M) application.
'i L. "r
Emma TZ Brown MUR?
Planning Consultant
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Town I Urban I E:ruironmento
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STATEMENT OF ENVIRONMENTAL EFFECTS
section 96(AA) Amendment to D/2009/1096
Refrospective Approval for use of a J.6m high
Northern Acoustic Barrier for Direct
F rei g ht D istri b uti o n Warehouse
20-26 Scrivener Street Warwick Farm
April 2013
Reproduclion",*,3otlf,l#,Tiiili:iiil':,'X1,"..::1
permitted without the prior written permission of Andrew naaiiri eanning ny uo
Andrew Martin Planning pty Ltd - Town I urban I Environmental ABN 71 101 7gg 001
A8'r 1' 10', ?98 00'