BAC WMR Holdings Pty Ltd v Goulburn Mulwaree Council

Land and Environment Court (NSW)|2022-03-10

Judgment

COMMISSIONER: The Wakefield Park Raceway is located around 11km to the south of the centre of the city of Goulburn, close to the small rural township of Tirrannaville.
On 21 September 2020, Development Application DA/0117/2021 (the DA) was lodged by the Applicant in these proceedings, BAC WMR Holdings Pty Ltd, for ongoing use of the Wakefield Park Raceway (the Raceway) for:

motorsport activities and ancillary activities, including implementation of the noise management requirements in a prevention notice that was varied by this Court in earlier proceedings,
demolition of an existing pit lane building and associated structures, construction and use of a new two storey pit land building and associated structures,
construction and use of a new off-road experience area,
ongoing use of a camping area and existing visitor accommodation facilities,
general purpose markets,
updated signage and
associated site works (including water management infrastructure for the new building and off road experience area).

It is helpful at this early stage to record that the site is owned by the Applicant, BAC WMR Holdings Pty Ltd, but that the Raceway is operated by Wakefield Park Motorsport Pty Ltd (WPM). Both the Applicant, and Wakefield Park Motorsport Pty Ltd are wholly owned subsidiaries of Benalla Auto Club Inc (BAC).

The evolution of the appeal

It is commonly held that the original consent for a motorsport track was granted in 1993 (1993 Consent) (Exhibit 2, Tab 3).
The Respondent cites excerpts from the Statement of Environmental Effects prepared by Mr Dick Benbow dated March 1993 (Exhibit 2, Tab 2), accompanying the original development application, the subject of the 1993 consent, to submit: 1. the purpose was identified as a 'historic car club' to 'recreate the 1920s-1930s historic motor racing' (pp10-11). 2. noise impacts were to be safeguarded (p9), and noise controls applied (p52), ensuring a maximum noise generated of 95dBA (p26), at race meetings limited to 4 per month (p25).
In response to complaints about offensive noise, the Respondent issued a prevention notice to the Applicant on 25 January 2019 under s 96 of the Protection of the Environment Operations Act 1997 (POEO Act) (2019 Prevention Notice) (Exhibit 2, Tab 6).
On 14 February 2019, the Applicant appealed the 2019 Prevention Notice.
In accordance with its usual practice, the Court arranged a conciliation conference under s34 of the Land and Environment Court Act 1979 that resulted in agreement between the parties by way of judgment delivered 8 January 2020 in BAC WMR Holdings Pty Ltd v Goulburn Mulwaree Council [2020] NSWLEC 1010 (2020 Judgment) that varied the 2019 Prevention Order by way of the 2020 Prevention Order (Exhibit 2, Tab 7).
Schedule 1 of the 2020 Prevention Order itemises preventative measures for managing noise emissions from the Raceway, including the use of a Soundweb system to measure noise in conjunction with a predictive noise model developed by the Applicant's acoustic expert, Dr Renzo Tonin.
Relevantly, Item 19 of Sch 1, requires a calendar to be prepared that identifies events in certain noise categories, summarised, in part, as follows:

A maximum of 75 events per year that may be within a range of 85-95dB(A).
A maximum of 50 events per year that may be within 83-85dB(A).
All other events during the year not to exceed 83dB(A).

The 2020 Judgment, at [8], noted agreement between the parties that the Applicant would, by 1 August 2020, lodge a complete development application in relation to the ongoing use and operation of Wakefield Park Raceway, having regard to Council's pre-lodgement processes.
The DA, at [2], was subsequently lodged.
At an Extraordinary Council meeting on 22 June 2021, the Respondent resolved that determination of the DA be deferred until 13 July 2021.
On 12 July 2021, the Applicant, appealed the deemed refusal of the DA under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), in Class 1 proceedings.
On 13 July 2021, the Respondent determined to grant consent to the DA, subject to certain conditions, and to revoke the 2020 Prevention Notice and issue a new Prevention Notice (2021 Prevention Notice) (Exhibit A, Tab 9) under the POEO Act, and reflecting conditions 13-22 of the conditions of consent.
On 29 July 2021, the Respondent issued the 2021 Prevention Notice that it said reflected the conditions of consent.
On 5 August 2021, the Applicant commenced proceedings against the 2021 Prevention Notice.
On 16 August 2021, the Respondent revoked the 2021 Prevention Notice and the Applicant discontinued proceedings, with an undertaking to conduct its operations at the Raceway in accordance with the terms of the 2020 Prevention Notice.
The consequence of all this is that the Applicant's appeal is founded on two principal arguments: 1. Acoustic impact: The conditions imposed by the Respondent are significantly more onerous than the noise management requirement of the 2020 Prevention Notice. 2. Economic impact: The conditions impose adverse financial impacts on the Applicant, and its associated entities, and on third parties such as staff employed at Wakefield Park, local contractors, patrons and local business that benefit from tourists attracted to the Raceway.
In contrast, the Respondent argues that the Raceway operations exceed the terms of the 1993 Consent, being the relevant consent for the operations, and the Applicant now seeks to use its current operations to set a benchmark for entitlement into the future, despite the impacts of that past use, which is unlawful, being unacceptable.
The Respondent also submits that the 2020 Prevention Notice is not a relevant consideration in the Court's determination of the matter because, firstly, a Prevention Notice is a tool of enforcement directed at the operations of the Applicant and in respect of which an assessment under s 4.15 of the EPA Act is not undertaken and secondly, as the 2020 Prevention Notice deals with past unlawfulness which the Court has consistently held is irrelevant, then actions taken by the Respondent to prevent that past unlawfulness must also be regarded as irrelevant.
To do otherwise would permit the Applicant to achieve an outcome that is more generous than would result from an assessment pursuant to s 4.15 of the EPA Act and so would benefit from past wrongdoing.

The 1993 Consent

While the parties agree that consent for a Raceway on the site was conferred by the 1993 Consent, the Respondent considers the current use to be beyond the scope of the terms of the 1993 Consent.
I consider it helpful at this point to summarise the relevant terms of the 1993 Consent.
The description of the development in the development application, lodged 5 April 1993 (Exhibit 2, Tab 1) is simply: 'Motor Racing Circuit'.
As stated at [5], the Statement of Environmental Effects stipulates, at Section 1.3.3 Track Usage that: "It is anticipated that there will be the following usage of the track: Four race meetings a month. A race meeting will involve a series of individual races for different clubs and would involve a variety of classes of motor sports. Each race may involve only 6 laps, others will extend to 20 or more. Time of use of the circuit is limited to daylight hours only. Earliest racing time is usually 9.00am. Vehicle preparation including circuit practice may occur from 8.00am. Closing time of the circuit is 6.00pm during summer time. Racing during winter months would not be expected to extend past sundown. Motor vehicle types It is expected that all classes of motor sports would wish to have access to the circuit and clearly this is necessary if financial viability of the circuit is to be achieved. The circuit is a private development and the opportunity for success of the development and wider benefits for tourism in the Goulburn City and Mulwaree Shire areas is very much dependent on making available to the following classes of motor sport, a desirable venue: Vintage and historic cars and bikes, including…. …"
Condition 19 of the 1993 Consent is in the following terms: "The development is to adhere strictly to the submitted application received by Council on the 6th April 1993 unless otherwise directed by the above consent conditions."
To summarise, the track usage described in the Statement of Environmental Effects accompanying the development application the subject of the 1993 Consent is for four race meetings each month, assumed by the Respondent, to be a total of 48 meetings per year.
The Applicant relies on an Environmental Impact Report, prepared by Mr Mike Ruzzene (Exhibit D) that records a total of 280 events per year.
The Respondent submits that as the operations at the Raceway are beyond the terms of the 1993 Consent, certain aspects of the operations may be unlawful, and the Applicant is not entitled to benefit from unlawful use: Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 per Bignold J at [38]; Lee v Randwick City Council [2021] NSWLEC 1200 per Clay AC at [3].
While the lawfulness, or otherwise, of the current Raceway operations is not the subject of these proceedings and cannot be within Class 1 proceedings of the Court, unacceptable acoustic impacts arise from that unlawfulness and the Respondent submits that a person who has carried out unlawful works should not gain an advantage from those works.

The site and its context

The site is legally described as Lot 1 in DP 832905 and known as 4770 Braidwood Road, Tirrannaville.
The site is approximately 53 hectares in area, located on the eastern side of Braidwood Road.
The site rises from Braidwood Road, gently at first, where areas of car parking, sheds, a café and other buildings are located, then steeply, where the bitumen track winds over the contours of the higher terrain.
From Braidwood Road, the Raceway is partially concealed by earth berms, mature planting and fencing.
The site is located within an area identified by the Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP) as an RU1 (Primary Production) zone, in which a recreation facility (major), as it is defined by the Respondent, is not a prohibited use.
To this end, the Respondent submits the proper characterisation of use of as a recreation facility is defined in the dictionary of the GMLEP as follows: recreation facility (major) means a building or place used for large-scale sporting or recreation activities that are attended by large numbers of people whether regularly or periodically, and includes theme parks, sports stadiums, showgrounds, racecourses and motor racing tracks.
The objectives of the RU1 zone are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and with adjoining zones. • To promote the use of agricultural land for efficient and effective agricultural production. • To avoid or minimise impacts on the natural environment and protect environmentally sensitive land. • To allow the development of non-agricultural land uses which are compatible with the character of the zone. • To allow the development of processing, service and value-adding industries related to agriculture and primary industry production. • To protect and enhance the water quality of receiving watercourses and groundwater systems to reduce land degradation. • To minimise the visual impact of development on the rural landscape.

The onsite view and public submissions

The proceedings commenced with an onsite view. As localised flooding prevented access to certain properties on the day, three resident submissions were heard on site, and three at respective properties.
Resident submissions are contained in either the Respondent's bundle (Ex 2), or in Ex 3, which is a compilation of written submissions relied on by residents on the first day.
I note here that resident properties are identified in the acoustic reports by reference to acoustic receptors, hereafter referred to as 'Receiver locations'. Each receiver location is numbered in sequence. For ease, these are located on an aerial photomap of the local area (Ex 8), seemingly identical to that contained in the Noise Impact Assessment prepared by Dr Renzo Tonin, dated September 2020 (Ex A, Tab 10, p10). I adopt this numbering to identify the location of properties owned by the resident submitters.
The resident at Receiver location R12, to the south east of the site, addressed the Court onsite as to concerns that may be summarised as follows (see also Ex 2, Tabs 37 and 76):

The Applicant has consistently failed to comply with provisions governing noise, and so the Raceway imposes unacceptable noise levels on neighbouring properties.
The Applicant has no regard for residents in the area, no history of sharing information about noise generated by the Raceway and has expanded operations in recent years.

The Court was also addressed by the resident at Receiver location R19, whose concerns may be summarised as follows (see also Ex 2, Tabs 34 and 73):

Resident concerns have escalated since the Applicant purchased the site in 2006, with no goodwill evident from the Applicant.
Despite a chronology of efforts by the Council and community over five years to address noise, the Applicant has resisted any concessions, or amendment to its business model.
Instead, residents have had to modify homes, replacing doors, windows and roofs at a cost of $100,000 in order to moderate the noise, with limited success.
The impact affects the enjoyment of home life, leisure pursuits and 'work from home' arrangements.

The Court also heard from the residents of Receiver location R14, whose concerns may be summarised as follows (see also Ex 2, Tabs 36, 57, 72, and Ex 3, Tab 5, and Exhibit 3, Tabs 5 and 6):

Absent noise from the Raceway, the area is a quiet rural setting that originally made the location attractive, but since purchasing the property, noise has increased and is now all pervading, and affects if and when visitors are invited to the house.
Operations at the Raceway are an unbearable intrusion into daily life, resulting from 'creep' that has extended operations far beyond what is reasonable in the RU1 zone, and requiring windows and doors to remain closed most days of the year.
The nature of the noise ranges from 'high pitch' to 'screaming', stops and starts, and is not good for mental health.
There appears to have been a long period of ineffective enforcement, lack of community consultation and even financial support for the Raceway despite a record of disregard for proper planning process.

The Court then heard oral submissions from residents of the area, at their residential addresses: 1. The resident at the location of Receptor 1, 400m north of the Raceway identify the property as a childhood home in which they lived for the past 31 years. Of particular concern is the motor sport known as 'drifting' due to the skidding/screeching squeal of rubber that irritates and creates a form of anxiety (Ex 3, Tab 1). 2. The residents at the location of Receptors 20 and 21 are on a family property settled in 1827. Due to the volume and frequency of noise from the operations at the Raceway, it is a daily mental task to ignore the noise that interferes with everyday tasks such as working from home, using the verandah or watching television. The solution is not to ask residents to quarantine in certain rooms but to set a reasonable number of days the noise is to be generated (Ex 2, Tabs 38 and 75, and Ex 3, Tab 3 and 4).
Written submissions were also received by the Court prior to the onsite view, contained in the Respondent's Bundle of documents (Ex 2, Vol 3).
In broad terms, the submissions are polarised between concern at the operation of the Raceway and the potential for any intensification of use to materially affect their wellbeing or, in the alternative, concern that a curtailing of operations will adversely impact on their enjoyment and participation in activities on the site.
A number of residents in the area advise they have undertaken upgrades to their own dwellings such as double glazing and additional roof insulation, but the noise can be heard regardless, for example during 'Zoom' calls when they are asked to 'mute' for that reason.
There is also a common thread in the public submissions at what is considered a lack of regard for the resident community demonstrated by the Applicant in failing to manage social media activity by Raceway participants and supporters seeking to 'troll' neighbouring and nearby properties.
I also note here that a written submission from Mr Culvenor (address not identified) is also contained in Ex 3 (Tab 2) that is supportive of the Raceway. He considers the conditions under which the Raceway operates to be onerous in comparison to compares other Raceways in Australia and New Zealand.
Due to a high level of interest in the proceedings, the Court facilitated a livestream of the hearing on each day.

Expert evidence

The Court was assisted by the evidence of experts in the following fields: 1. Mr Michael Oliver, for the Applicant, and Ms Stephanie Mowle, for the Respondent, conferred on town planning matters in the preparation of a joint report marked Ex 7. 2. Dr Renzo Tonin, for the Applicant, and Mr Stephen Gauld, for the Respondent, conferred on acoustic issues identified in Ex 11 in the preparation of a joint report marked Ex 6, and a supplementary joint report marked Ex 13. 3. Additionally, Dr Renzon Tonin prepared an expert report on acoustic issues marked Ex C, and supplementary expert reports later marked Ex G and H. 4. Likewise, Mr Stephen Gauld prepared an expert report on acoustic issues marked Ex 5, and Ex 12. 5. Mr Adam Giliberti prepared an expert report on the financial impact of the conditions of consent on behalf of the Applicant, marked Ex E. 6. Mr Mike Ruzzene prepared an expert report on the economic impact assessment of the conditions of consent on the Goulburn Mulwaree region, marked Ex D.
Oral evidence was adduced from the planning experts and acoustic experts only.

Planning framework

The aims at cl 1.2 of the GMLEP are, relevantly: (a) to promote and co-ordinate the orderly and economic use and development of land in the area, … (d) to promote the use of rural resources for agriculture and primary production and related processing service and value adding industries, (e) to protect and conserve the environmental and cultural heritage of Goulburn Mulwaree, … (i) to allow development only if it occurs in a manner that minimises risks due to environmental hazards, and minimises risks to important elements of the physical environment, including water quality, …
The general development objectives of the Goulburn Mulwaree Development Control Plan 2009 (GMDCP) include: "Non-residential land uses shall not impact upon the amenity of the area or surrounding sensitive land uses. This would include, for example, local shops and commercial premises, schools, child care centres, places of worship, open space and recreation."
Of greatest relevance to this case, is the means by which the impacts of noise are assessed.
The GMDCP provides, at Part 4.2.7 Noise and Vibration - general requirements: "Objectives Minimise the impact of noise and vibration by proposed operations and on proposed developments of existing and projected future sources of noise and vibration. Controls Council is the appropriate regulatory authority for noise related activities, such as heavy industries, mining, extractive industry, motor racing tracks and the like under the Protection of the Environment Operations Act 1997. If development sensitive to noise were to be approved on adjacent properties to the noise source, Council will be responsible for regulating any resulting noise impacts. Council recommends applicants utilise the following documents to assist them in making decisions relating to acceptable noise levels for noise generating and noise sensitive developments: * NSW Industrial Noise Policy * Environmental Criteria for Road Traffic Noise * Noise Guide for Local Government The above documents are available from the NSW Environment Protection Authority website: www.environment.nsw.gov.au/noise The impact of noise generated by a proposal can be minimised to comply with the statutory requirements in different ways. The following guidelines address means of achieving the standards. Incorporate sound proofing for machinery or activities considered likely to create a noise nuisance during design development. Locate noisy operational equipment within a noise insulated building away from residential areas. Design logistically efficient business practises to minimise the use of equipment, movements per site, and number of vehicle movements per site per day. Where sites adjoin a residential area, limit the number of hours and times at which mechanical plant and equipment is used in conjunction with the measures described above. Ameliorate the noise and vibration impact of transport operations by using appropriate paving or track mounting and installing acoustic barriers as required to meet standards on neighbouring uses. Incorporate appropriate noise and vibration mitigation measures into the site layout, building materials, design, orientation and location of sleeping recreation/work areas of all developments proposed in areas adversely impacted upon by road or rail related noise and vibration."
The Noise Guide for Local Government (NGLG), adopted by the GMDCP, is published by the NSW Environment Protection Authority (NSW EPA) (Ex 2, Tab 31) and "aims to provide practical guidance to Council officers in the day-to-day management of local noise problems and in the interpretation of existing policy and legislation" (folio 1480).
The framework for noise control, in Part 1 of the NGLG identifies Motor sports on private land to be subject to an assessment of offensive noise, with the suggested management or regulation measure being a Noise Control Notice or a Prevention Notice (folio 1513).
The NGLG adopts the definition of 'offensive' noise from the Dictionary in the POEO Act: "offensive noise" means noise-- (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances-- (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.
Section 2.2.1 of the NGLG deals with 'Intrusive noise' in the following terms: "Noise is identified as 'intrusive' if it is noticeably louder than the background noise and considered likely to disturb or interfere with those who can hear it. Councils may have local policies about what they consider constitutes intrusive noise from specified activities in particular situations or locations. In these circumstances, it may be council policy that a particular intrusive noise is treated as offensive. It is expected that such a policy would take into account the factors in the offensive noise checklist when setting local intrusive noise levels and descriptors."
Section 2.2.2 seeks to differentiate offensive noise from intrusive noise: "Offensive noise is a subjective concept and in a number of situations it can be assessed without the use of a sound level meter. However, in order to answer the second part of Q1 in the checklist, it may be necessary to measure the level of the subject noise that is above the background noise. Measured noise levels may also be useful when discussing with others how loud the subject noise is relative to other noises in the area. An intrusive noise level (which is a certain defined level above background) requires measurement. Noise Control Notices and Prevention Notices can prescribe noise levels that need to be achieved which are below an intrusive noise level, as defined."
The Noise Policy for Industry (NPfI) is also published by the NSW EPA (Ex 2, Tab 32).
While the NPfI does not apply to noise from sporting facilities, including motor sport facilities (NPfI, folio 1677), the experts agree that the recommended 'amenity noise levels' found in Table 2.2 provide a useful benchmark.
The amenity noise levels are predicated on the following assumptions in the NPfI: 1. that a noise source "may generally be considered acceptable if the level of noise from the source (represented by the LAeg descriptor), measured over a 15-minute period, does not exceed the background noise level by more than 5 dB(A) when beyond a minimum threshold" (folio 1681). 2. Have been selected on the basis of studies that relate industrial noise to annoyance in communities…[and] are based on protecting the majority of the community (90%) from being highly annoyed by industrial noise" (folio 1682). 3. Amenity noise levels are not used directly as regulatory limits, but in combination with the project intrusiveness noise levels to assess the potential impact of noise, assess reasonable and feasible mitigation options, and subsequently determine achievable noise requirements. (folio 1683)

Acoustic issues

While the contentions identify certain conditions of consent as the focus of the appeal, this is not how the proceedings unfolded. Instead, in order for the Court to arrive at findings in respect of those conditions, it is necessary to attempt to summarise the considerable expert acoustic evidence produced in this case, on which the Court's findings are contingent.
An important aspect underlying the acoustic issues in this case is the manner in which sound is captured at the Raceway. Two means are relied upon:

The 'Soundweb' is the means by which the LAeq 15 min sound level emitted from the whole of track is measured, so that the sound level can be predicted using a predictive noise model (Ex 5, par 18).
The '30m microphone' is a sound level meter located at a distance of 30m from the edge of the race track to capture the instantaneous noise (LAmax(fast)) as a vehicle passes, where LAmax(fast) is the maximum sound of a single vehicle.

In general terms, I understand the Soundweb system is primarily used to assess the acoustic impact of Raceway operations on receivers located in the local area, and the 30m microphone is designed to identify any vehicle that exceeds a determined sound level, so that the vehicle may be removed from the race track.
At the outset, agreement between the acoustic experts may be summarised as follows: 1. The background noise level, or Rating Background Level (RBL), can be measured using the methodology in Fact Sheet B: Measurement procedures for determining background noise", (NPfI) (Ex 2, folio 1724). 2. The RBL today is likely to be the same or similar as that recorded in the Statement of Environmental Effects prepared by Benbow Environmental in December 2014 ('Benbow Report'). The RBL value is expressed in the range of 26-34 dB(A). 3. The only consistently applied fixed noise limit for motorsport facilities is the Confederation of Australian Motor Sport (CAMS) 95 LAmax(Fast), measured at 30m from the race track.
With respect to the RBL, Mr Gauld is of the view that a value of 32dB(A) should be adopted as a measure derived from the Benbow Report, while Dr Tonin relies on the guidance of the NPfI to adopt the 35dB(A) minimum, because the NPfI specifies that where an RBL value is less than 35 dB(A), the minimum value to be adopted is 35dB(A) during daytime, and 30dB(A) during evening and night-time (Ex 2, folio 1720).
Dr Tonin provides a basis for his argument at pars 49-54 of Ex 5, with further explanation at pars 5-9 of Ex H.
I understand the difference to be in the order of 3dB(A). In any event, the experts agree that this aspect of the dispute is of little consequence compared to other factors that have a greater impact.
As it is put Mr Gauld, the principal question is: 'how much noise is acceptable'?
In essence, the experts agree that for every event held at the Raceway that exceeds a reasonable level of noise, provision should also be made for respite from such noise. As it was put by Dr Tonin, the maximum number of events permitted each year is analogous to a 'bucket of balls', where the rate at which balls are withdrawn represents the db(A) above background, and the overall number of balls represents the total number of events determined appropriate for the year.
Just what is the appropriate ratio of event days to respite days is fiercely contested by the experts, who advance competing methodologies that appear to vary from the graph depicted at Figure 3.4 of the NGLG titled 'Determining annual event ratio', referred to as the 'Event Multiplier' (Ex 2, folio 1571), re-produced below.
Dr Tonin's departure from the Event Multiplier is based on the lack of an explanation in the NGLG as to its scientific basis and its failure to relate to the 'loudness' of the sound levels exposure, where loudness is the basis of the NGLG, evident in references to the term in the 'Case study 2: Noise from a motor sport facility' within Pt 3 of the NGLG.
By contrast, Mr Gauld considers the Event Multiplier graph a reasonable basis for determining the ratio of event-days-to-respite-days notwithstanding his own preferred method is more onerous than the Event Multiplier.
Mr Gauld's reasoning is based on the levels of sound expressed as 'dB above background' and the corresponding ratio on the vertical axis, which he regards as explicable when, for example, a noise level of 8 dB(A) above background, having twice the energy compared to a level of 5dB(A) above background, has a ratio of 2 applied.
Even departures from the scientific logic are explainable to Mr Gauld such as in the case of a noise level that is 11 dB(A) above background, having four times as much energy as a level of 5dB(A) above background, and so a ratio of 4 should apply. The fact that a lesser ratio of 3.2 is applied by the Event Multiplier instead is, according to Mr Gauld, due to the NGLG recognising the particular difficulty encountered by motor sports in conforming to noise standards.
After considering the written and oral evidence of the acoustic experts, I state here that I give considerable weight to the Event multiplier produced by the EPA in the NGLG. It is particular to motor sport, and intended to be used, as it states, for the purposes of determining the annual event ratio. I also accept Mr Gauld's reasoning that the line graph may well have been produced to anticipate and mediate the competing certainties evident in the positions adopted by the experts in this case.
I also note here that Mr Gauld adopts sound power as a basis, while Dr Tonin considers 'loudness' to be the more appropriate unit of measure.
Case Study 2 in the NGLG appears to prefer sound power level as a measure, recommending the following (folio 1569): "In this scenario, the noise assessment should assess: The sound power level of the different type of racing vehicle …"
Reference to 'loudness' on folio 1570 the NGLG does not appear intended to invoke a term of art, but to apply common terms that can be understood by readers who do not have the benefit of acoustic expertise, evident also in use of the term 'noisier' that I likewise do not understand to have discrete meaning.
For the reasons he sets out at [77]-[82], I prefer and accept Mr Gauld's evidence.
Despite the disagreement between the experts on the Event Multiplier, and the number of events appropriate to count in a calendar year in the joint expert report (Ex 6), during oral evidence, the experts agreed that the number of events for the calendar year should be 365.
In the joint expert report, Ex 6, Mr Gauld refers to Tables in his own expert report (Ex 5) which he says demonstrates that the number of events for the entire calendar year were exhausted in the first two months of 2022 when receptors at Receiver locations R1 and R20 logged noise levels above the RBL.
In essence, these tables are updated in the supplementary joint expert report marked Ex 13, albeit prepared under different instructions. Those instructions are relevant as they directly relate to the disputed terms of Condition 13A.
In broad terms, the experts were instructed to prepare a table of equivalent events based on the 2020 year, assuming the following:

60 days of events not exceeding 95dB(A) ('Red category events')
170 days of events not exceeding 85dB(A) ('Amber category events')

As I understand it, the number of days in the assumption above originates from a concession made by the Applicant during the proceedings to reduce the number of certain category events from those stated in the Statement of Facts and Contentions prepared by the Applicant (Ex B).
The Applicant's concession reduces the number of events classified in Ex B as Red category events from 75 to 60, and the number of events classified as Amber category events from 212 to 170.
On this basis, the acoustic experts tabulate the receivers at which acceptable noise levels are exceeded, with the following results: 1. Dr Tonin identifies exceedances at Receivers R4, R16 and R20. 2. Mr Gauld identifies exceedances at Receivers: R1, R3, R5, R16 and R20.
In respect of Receiver location R1, the Applicant advised that negotiations were progressing on the acquisition of the property and tendered an unexecuted contract for sale (Ex L), in respect of which the Respondent was granted leave to put on an affidavit (see [102]).
Evidence of webpages and photographs (Ex J) suggest the location of Receiver location R3 is used for short and long term rental, which classifies the property as a non-residential receiver.
According to the Applicant, residents at Receiver locations R5 and R16 support the operation of the Raceway, and no issue is made in these locations.
Mr Gauld agrees that if Receiver location R3 and R5 are considered non-residential receivers, the effect is that no exceedance at those locations would occur, given the higher threshold in Table 2.2 that applies to holiday accommodation and the like (Ex 2, folio 1683).
Mr Gauld also agrees that the exceedance at Receiver location R20 would be deemed acceptable if a reduction of 5dB(A) was achieved.
Dr Tonin believes this can be achieved by a combination of the following at the residence at R20:

A 2.4m high acoustic noise wall for a distance of 20-30m on the eastern side of the house,
Increase glazing thickness to certain windows,
Provision of air conditioning in any room used as an office.

According to Dr Tonin, these works are consistent with the section of Case Study in the NGLG (folio 1570) dealing with receiver noise controls, which states: Receiver noise controls "In extreme situations and as a last resort, council could consider attaching development consent conditions requiring the proponent to implement noise controls at receiver locations such as: • noise insulation for nearby houses • where noise impacts are totally unacceptable, and the facility continues to operate, the proponent offering to acquire nearby property. Legal advice should be sought if these types of condition are proposed."
The Respondent considers the assumptions underlying the supplementary expert report at Ex 13 to be only one of a number of options before the Court, that are more numerous than the Applicant's binary choice between the noise categories proposed by the Applicant in the Statement of Facts and Contentions, or as conceded at [90].
These options also include upholding the noise categories incorporated in the Notice of Determination (Exhibit 2, Tab 18) or those in the 2020 Prevention Notice.
Furthermore, the noise controls proposed by the Applicant at Receiver location R1, being acquisition of the property, and at Receiver location R20, being substantial off-site mitigation works, are essentially an admission that the noise impacts are extreme and so remedies defined by the NGLG as a last resort are now required.
With respect to Receiver location R1, the Respondent was granted leave to file and serve an Affidavit prepared by the resident and owner of the property which, in summary acknowledges communication with the Applicant for purchase, conditional on a finding in this matter that is favourable to the Applicant.
With respect to Receiver location R20, the Respondent submits it is unreasonable to assume a resident at that location would support such an intrusion on the amenity by the works proposed at [97].
The property at Receiver location R20 is listed for its heritage significance in Sch 5 of the GMLEP. The listing is notable for two reasons: 1. Firstly, the listing is not just for the residence, but for "Tirranna" homestead, gardens, Gibson family cemetery and veterans allotments (circa 1829). 2. Secondly, while the designation of heritage significance is at a local level, the designation is marked with an asterisk, denoting the item is also subject to National or Commonwealth listing.
The Applicant's Statement of Environmental Effects (Ex A, Tab 4, p15) identifies the properties at Receiver locations R1 and R20 as heritage items but did not, at the time of drafting, propose works to those properties.
Clause 5.10 of the GMLEP provides, relevantly, where works are proposed that would alter the exterior of any of the following (subcl (2)(a)(i)), or involve the erection of a building on land on which a heritage item is located (subcl (e)(i)), before granting consent, the consent authority, or the Court exercising the functions and discretions of the Respondent council on appeal, must consider the effect of the proposed development on the heritage significance of the item.

Firstly, while the Applicant relies on evidence of discussions with the owners of Receiver R1 as to a potential purchase, I am required to apply the law and facts as they exist at the time of hearing and determination of the appeal: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635. The property at Receiver location R1 remains in the ownership of the residents, and not the Applicant.
While the NGLG states a consent authority might, in certain circumstances, consider attaching conditions of consent requiring a proponent to offer to acquire a property, the Court has the benefit of correspondence between the Applicant and the owners of Receiver location R1 that states the terms of any purchase are contingent upon the Court's determination of the proceedings in favour of the Applicant.
No mitigation is proposed other than the acquiring of the property, which is contingent upon the Court's determination in these proceedings. Should the Court's determination be to the satisfaction of the Applicant, the sale may proceed. However, as I understand the terms of the offer, should the Court's determination not be to the full satisfaction of the Applicant, the sale will not proceed and so the only mitigation proposed, being acquisition, would not be given effect.
Secondly, I am persuaded by the Affidavit of the owners of Receiver location R1, filed with the Court on 11 March 2022, that the dwelling is used as a primary residence and so should be regarded as a residential receiver. No mitigation measures are identified by the Applicant for the property, which is located close to, and so visible from, Braidwood Road, and is identified in Sch 5 of the GMLEP for its heritage significance. 1. In respect of Receiver Location R3:
The Applicant relies on Ex K as evidence that Receiver location R3 should be classified as non-residential. I note that the written submission from the resident at location R3 makes the following statement, which I understand to be supportive of the location being the home of the author, and so be a residential receiver: "…My wife works from home 2 days per week in the office on the Wakefield Park side of our home." I also note the submission then continues as follows: "..She can conduct Zoom meetings and have phone calls with very little disruption. Some days are better than others depending on the weather conditions. A possible solution could be double glazed windows to muffle any noise." 1. In respect of Receiver locations R5 and R16:
A submission from the residents at Receiver location R5 (Ex F, Tab 8 & 9), and the residents of Receiver location R16 (Ex F, Tab 6 & 7) raises no objection to the continued use of the Raceway.
Whether or not the residents at those locations object to the noise imposed at the receiver locations, an exceedance is identified by way of scientific measurement when assessed against the parameters behind the Table 2, Ex 13.
Of relevance here are the agreed terms of proposed Condition 17 requiring the Applicant to prepare a Noise Management Plan within a certain time frame, noting that: "…agreements reached with landholders should not be regarded as permanent (for example, changes in land tenure) and should be reviewed by the Applicant periodically." 1. In respect of Receiver Location R20:

As stated at [88]-[90], the exceedances at the Receiver locations in Table 2 (Ex 13) flow from the number of equivalent activities classified as Red and Amber category events.
It is only logical that the greater the number of activities classified as Red and Amber category events, the greater the number of exceedances likely to be recorded at the Receiver locations unless some form of mitigation is undertaken.

Economic and social impact

As stated at [19], the second ground on which the appeal is founded asserts the conditions proposed by the Respondent are likely to result in adverse economic and social impacts on the local area.
In support of its position, on 21 December 2021, the Applicant was granted leave to engage Mr Michael Ruzzene to prepare an individual expert report in respect of the economic impact of the conditions appealed against (Ex D), and for Mr Adam Giliberti to be engaged to prepare an individual expert report in respect of the financial impact on the Applicant and its related bodies corporate of the conditions (Ex E).
It is relevant to record here that Mr Ruzzene's economic impact assessment is founded on assumptions and inputs set out in Section 3.2 of his report, including event data seemingly derived from information contained in an affidavit prepared by Mr Dean Graham Chapman, Operations Manager for the Raceway (Chapman affidavit) (Ex F, Tab 4), that sets out the total number of events projected to be held at the Raceway in 2022, 2023 and 2024 calendar years under the conditions proposed by the Respondent, including the total number of participants and spectators.
The Respondent initially objected to the reading of the Chapman affidavit on the grounds that the Applicant had drafted contentions in this matter, filed in September 2021, and briefed its single experts in January 2022 on material now evident in Mr Chapman's affidavit that the Applicant had only served on the Respondent four days prior to the hearing. I admitted Mr Chapman's affidavit into evidence, subject to weight.
Mr Ruzzene estimates the Raceway's annual event program, based on compliance with the 2020 Prevention Notice, generates a total economic output of $17.06 million to the Goulburn/Mulwaree regional economy, including:

$9.79 million in direct output and $7.27 million in indirect output;
58 direct jobs (FTE) and 24 indirect jobs (FTE); and
$4.38 million (direct) and $3.62 million (indirect) of value-added

I note here that the number of events assumed in Mr Ruzzene's Economic Impact Assessment appears at odds with the Track Usage of four race meetings a month nominated in the 1993 development application. Mr Ruzzene's assumptions appear in the following terms: "Under the base case scenario, [the Raceway] is projected to accommodate 280 events per annum, which are estimated to attract 35,450 attendees (a mix of participants and spectators) across the calendar year." (Ex D, p13)
Furthermore, the number of events assumed in the 2022, 2023 and 2024 years are shown to decline from the base case scenario, based on the proposed conditions of consent initially advanced by the Respondent. Relevantly, at par 25, Mr Ruzzene also assumes no redevelopment of Wakefield Park facilities and infrastructure.
The parties did not seek to adduce oral evidence from Mr Ruzzene or Mr Gilberti, and so it is mere speculation on my part that the basis of Mr Ruzzene's assumption that redevelopment would not proceed may lie in the statement at p6 of the Statement of Environmental Effects accompanying the development application prepared by Ethos Urban, dated 15 September 2020 (Ex A, Tab 4), that in the event proposed conditions of consent are unacceptable to the Applicant, no building, engineering or construction work will commence, but the Applicant will instead seek to continue to use the site and conduct operations under existing approvals.
Whether that is the case or not, Mr Ruzzene forecasts a 42% reduction in direct expenditure within the region over the three year period from $9.79 million per annum, from the base case, to $5.70 million in 2024.
Furthermore, where low noise events are able to be re-booked in place of cancelled events, only a very minor economic benefit to the Goulburn-Mulwaree region would result.
The consequence of a declining events profile caused by the effect of Condition 13 is, according to Mr Giliberti's written evidence, that the Applicant could no longer be considered a financially viable business because the Applicant would cease to generate sufficient annual revenues for 2022, 2023, 2024 and subsequent years to cover its annual expenses, and would likely need to reduce its annual expenses by terminating the employment of some of its employees.
Mr Giliberti defines a 'financially viable' business to be a business that is able to continue to trade into the future, by firstly generating sufficient annual revenues to cover its annual operating expenses and secondly, to pay the debts incurred for the operation of the business when they fall due, which could include debts for employment of staff required by the business.
Mr Giliberti concludes that the Applicant will incur the following losses in the three years 2022-2024, not including operating costs saved to the business, as follows:

$676,584 over the 2022 year,
$975,947 over the 2023 year.
$1,233,423 over the 2024 year and every subsequent year.

Mr Giliberti infers that there has been limited demand for use of the site by customers seeking to book events that generate relatively lower noise, of between 75dB and 83dB.
As stated at [122], I admitted Mr Chapman's affidavit evidence, subject to weight. For the reasons that follow, I do not give Mr Chapman's affidavit, or the expert reports of Mr Ruzzene or Mr Giliberti much weight, notwithstanding that the expert reports were admitted into evidence uncontested by expert evidence from the Respondent: 1. Firstly, while I accept Mr Chapman may well have a detailed knowledge of the day-to-day running of the Raceway as it is currently operated, I accept that the position held by Mr Chapman, as an employee of WPM, is unlikely to permit him to engage at an executive senior level of strategic decision making as to new business opportunities, commercial partnerships or future directions on behalf of the Applicant or, for that matter, the operator of the Raceway, WPM. To be clear, this is no criticism of Mr Chapman. 2. Secondly, but relatedly, Mr Chapman asserts, at par 44(d) of his affidavit, that no amount of marketing or advertising will generate demand for events at or below 75dB given (at 44(e)) for which competitors such as Sutton Road Training Centre and Luddenham Raceway "charge approximately 30% of Wakefield Park's standard hiring rate". This is despite Mr Chapman's statement, at par 20, that the Raceway enjoys the status of being one of only two permanent certified motor racing circuits in NSW and I note redevelopment is proposed, presumably with the purpose of offering improved facilities. 3. Thirdly, the above assumption finds its way into the founding premise of the expert reports of Ruzzene and Giliberti - neither of whom undertake original analysis of the competitive advantage of the Raceway, potential alternative events, sources of revenue, or even the implications of the development the subject of the development application that includes construction of a new two storey pit land building and associated structures, new and improved facilities, and new ventures such as a new off-road experience area, general purpose markets and the like. 4. Instead, the Ruzzene Report and Giliberti Report adopt Mr Chapman's assertion at par 44(d) and, as stated at [125]-[126], fail to model the redevelopment for which consent has been granted, and is now sought in these proceedings. 5. Next, I accept the argument advanced, firstly by the BRI Ferrier report that is appended to the objection of Mr Reardon (Ex 2, Tab 50) and also by the Respondent in written submissions, that the Ruzzene Report overstates the benefit in terms of attendance, economic output and the contribution to the local area. In particular, I note the basis adopted in forecasting direct economic output is derived from large, multi-day events in 2017 for which attendees required overnight accommodation and incurred additional other expenditure unlike many of those events forecast by the Applicant to result from the development. 6. Finally, I accept the Respondent's submission that the Giliberti Report addresses its analysis, not to the impacts of the proposed conditions of consent on the Applicant, but on another entity within the BAC WMR Holdings Pty Ltd portfolio, WPM, that is licensed to operate the Raceway. Two issues flow from this: 1. Firstly, Mr Giliberti does not appear to consider whether a loss, if incurred, by WPM, would result in a loss by other entities in the portfolio, such as the Applicant, and/or BAC. 2. Secondly, no consideration is given to alternatives available to the Applicant in the event of a loss, or failure, by WPM, such as an alternative licensee for the Raceway.

Conclusion

I have considered the public submissions made in respect of this appeal and, for the reasons that follow, I find the submissions objecting to the Raceway to be balanced, reasonable and well considered, and so deserving of significant weight.
As it was put by Commissioner Dixon, as she was then, in McCuskey v Upper Lachlan Shire Council [2016] NSWLEC 1323, when considering public submissions that claim an adverse impact arising from an aspect of development in respect of an appeal before the Court, "an evaluation must be made of the reasonableness of the claimed adverse effect on the amenity of their land. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on their amenity. Needless to say, a fear or concern without rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact: Telstra v Hornsby shire Council (2006) 146 LGERA 10 at [192-195]."
In the circumstances of this case, the submission most consistently made by residents of adjoining and nearby properties is in respect of adverse acoustic impact that is, in certain receiver locations, supported by the evidence of both acoustic experts in Table 1 and Table 2, Ex 13.
On the whole, many residents of the area also generally accept the Raceway has a place in the community, subject to certain conditions being imposed on its use - such as the number of days on which events are held, and the activities at those events, such as drifting, drag racing and the like.
A number of residents also submit that they have already taken steps and incurred costs to mitigate the impact of intrusive noise on their property by completing certain works the form of double glazing, roof insulation and the like.
It may be trite to say noise is not generated by the Raceway itself, but predominantly by the vehicles that use it. As observed by Mr Culvenor in his submission, many of these vehicles may also use Braidwood Road, or any other street in Goulburn or beyond and, in the process, generate noise.
To the extent that is tolerated, it may be because it is transient - an annoyance that passes quickly. That is not the case at the Raceway, where that noise is generated for a sustained period of time in a heightened state of acceleration, unmoderated by signalised intersections, other vehicles sharing the road or the like as is the case on the open road.
While I accept that it is open to the Court to dismiss the appeal and refuse the grant of consent that is now the subject of the appeal, I note the degree of accommodation evident in the public submissions for continued use of the Raceway for motorsports, subject to conditions that appropriately balance the operations of the Raceway with the impacts of the Raceway on surrounding properties.
I have determined the development application warrants the grant of consent in accordance with s 4.16 of the EPA Act, subject to conditions of consent that, in my view, appropriately balance the operations of the Raceway with the environmental impact of the Raceway in the locality. Accordingly, I now consider those conditions that are the subject of submissions, or dispute between the parties. In doing so I note the numbering in the submissions differ from those in Annexure A of this judgment. I will use the numbering that appears in parties' submissions.

Condition 1

The parties propose identical amendments to Condition 1, as originally imposed by the Respondent, but for Conditions 1A and 1B, proposed by the Respondent.
Additionally, I note here the Respondent proposes certain definitions be added to the conditions to assist to define, with precision, certain terms related to the activities of a Raceway.
Condition 1A seeks, firstly, to align the characterisation of the use with a use considered appropriate by the Respondent by reference to the dictionary to the GMLEP, (see [37]), and secondly, to impose a trigger for the commencement of the consent by the holding of more than 4 events per month, being the number of activities the subject of the 1993 Consent.
I consider the characterisation of use by reference to the dictionary properly describes the nature of uses for which consent is sought, and I understand the 'trigger' to be a means by which to distinguish the consent now sought from the terms of the 1993 Consent.
Likewise, the terms of Condition 1B as proposed by the Respondent seeks to distinguish the terms of the consent now sought, from those of the 1993 Consent by the voluntary surrender of development consent, which I note is a form of condition permitted to be imposed by s 4.17(1)(b) of the EPA Act.
I accept the Respondent's written submission that, for the reasons shown by Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at [323-324], "the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty", in aid of which I find the Respondent's preferred form of words should be adopted, incorporated in Annexure A as Conditions 2 and 3.

Condition 12

Following the agreement of the planning experts that blue mesh fence covering should be removed, and free standing signage should be relocated within the site behind the fence line fronting Braidwood Road, the parties agree on the proposed wording of Condition 12.

Condition 13

Condition 13 deals with Noise Management and comprises six elements:

Condition 13AA - Events ratio
Condition 13A - General Noise Limits
Condition 13B - Noise Limitations at Receivers
Condition 13C - Event Scheduling
Condition 13D - Maximum Noise Limits
Condition 13E - Events Calendar

Perhaps most contentious is the means by which general noise limits are imposed. In written submissions, the Applicant argues that the Respondent has "adopted three different positions at different stages", summarised, firstly, as the restrictions imposed by the 2020 Prevention Notice (see [10]), secondly the restrictions imposed by the Notice of Determination, and thirdly, in the manner now proposed in Ex 14 which apportions a number of rest days to each category of event.
In its written submissions, the Respondent argues that the 2020 Prevention Notice is not a relevant consideration in the Court's determination of the matter because, firstly, a Prevention Notice is a tool of enforcement directed at the operations of the Applicant and in respect of which an assessment under s 4.15 of the EPA Act is not undertaken and secondly, as the 2020 Prevention Notice deals with past unlawfulness which the Court has consistently held is irrelevant, then actions taken by the Respondent to prevent that past unlawfulness must also be regarded as irrelevant.
To do otherwise would permit the Applicant to achieve an outcome that is more generous than would result from an assessment pursuant to s 4.15 of the EPA Act and so benefit from past wrongdoing.
I do not understand the Applicant to rely upon the 2020 Prevention Notice, other than to infer that, at a point in time, it represented an acceptable acoustic regime and to argue that the Respondent bears the onus of explaining a departure from the Noise Management Requirements set out in cl 19 and, in my view, little turns on either.
For clarity, I accept the Respondent's submission, summarised at [157], that the 2020 Prevention Notice has limited effect in these proceedings, as it is not a matter for consideration under s 4.15 of the EPA Act and while it may deal with operating hours, community consultation, vehicle testing, noise limits, event calendar and the like, it is an enforcement tool under the POEO Act.
The Applicant submits that the task for the Court is to strike a balance that allows the Raceway to continue operation and "have the least affect on the least amount of people with the highest prospect of successful mitigation". This submission is premised on the sole remaining property affected by noise being Receiver location R20.
However, as stated at [84], I accept Mr Gauld's explanation of the operation of the Event Multiplier at Figure 3.4 of the NGLG and so the Respondent's proposed Condition 13AA is adopted (Condition 15A in Annexure A), as it cites Case Study 2 Noise from a motor sport facility in the NGLG, inserts Figure 3.4, determines the maximum number of events to be 365 as agreed by the experts, and also identifies the RBL to be 32dB(A).
At this point it is necessary to state that I find the RBL of 32 dB(A) appropriate given, firstly, its origins in the Benbow Report that was agreed by the experts to be adopted, and secondly, as the alternative approach favoured by Dr Tonin relies on the twin assumptions that the percentage of the population highly annoyed by the acoustic impact of motor sports is equivalent to that of wind turbines (Ex C, par 52) for which there is no evidence, and that the elevated RBL of 35dB(A) incorporated in the NPfI should apply, despite the lower RBL derived from the (now superseded) Industrial Noise Policy, being the RBL referenced in Case Study 2 of the NGLG.
Likewise, for the reasons stated at [115], I accept Mr Gauld's assessment of acoustic impact at the Receiver locations R1, R3, R5, R16 and R20.
As stated at [116], I do not understand what, if any, noise mitigation is proposed to Receiver locations R1 or R3 and I am uncertain as to whether the mitigation proposed by Dr Tonin at Receiver location R20 is reasonable, given the identified heritage significance of the property.
Furthermore, Dr Tonin's own assessment is that barriers erected on the subject site would have an insignificant effect, and may pose a safety risk to users of the Raceway (Ex A, Tab 10, p28). Instead, for mitigation to be effective, barriers would need to be constructed close to dwellings located on land at Receiver locations (Ex C, par 128).
Given this, it would seem inevitable that the acoustic amenity of residents at Receiver locations R1, R3, R5, R16 and R20 would be adversely impacted, noting that residents at Receiver locations R5 and R16 appear untroubled by the noise, despite evidence to the contrary.
As the Court cannot be reasonably assured as to the means or effectiveness of offsite mitigation at certain Receiver locations, it is appropriate to adopt the Respondent's terms in Condition 13A that determines 11 respite days for every Red category event, 8 respite days for every Amber category event, and 4 respite days for every Green category event (Condition 15B in Annexure A).
Expressing the general noise limits in this way provides the Applicant with a degree of flexibility in how it arranges the calendar of events, and avoids what appears to be an otherwise arbitrary prescription for a certain number of events, in each of the categories. The acoustic experts agree that in 2020, there were 77 Red category events, 146 Amber category events and 24 Green category events.
The Applicant proposes an alternative number of events in [90], expressed as 60 Red category events, and 170 Amber category events, and the Respondent's initially preferred arrangement in the Notice of Determination decreased the number of event days in each category across the forward years 2022-2024, for reasons that are not entirely clear.
Noise limits are proposed by the Respondent at certain Receiver locations in Condition 13B. The condition is opposed by the Applicant in its entirety, in part because Dr Tonin acknowledges that predicted noise levels at Receiver location R1, R2 and R3 exceed those set as a maximum in Condition 13B (Ex C, par 127), and given the difficulty in isolating noise from the site with other ambient noise (par 130).
In the joint report (Ex 6, par 98), Mr Gauld observes that compliance is more easily carried out by adherence to the corresponding LAeq 15min Soundweb noise limit each day. This is a position also held by Dr Tonin (Ex C, par 134).
I agree with the experts on this point and I adopt the Respondent's preferred form of Conditions 13C and 13D for reasons that are related. In particular, these conditions relate to the elements that generate noise captured by the Soundweb in the first place in the following way: 1. In the case of Condition 13C (Condition 15D in Annexure A), the proposed wording deals with the manner in which the Event Schedule is prepared, those days on which no activity whatsoever is to occur, and the activities that are not to be held at any time, such as drifting, drag racing or burnout events. 2. In the case of Condition 13D (Condition 15E in Annexure A), the proposed wording deals with the maximum noise permitted, and the means by which that is to be monitored, enforced and reported.
With the above conditions adopted in the form preferred by the Respondent, it is my view that Condition 13B in the form proposed by the Respondent does not provide the "real-time compliance monitoring" advanced in written submissions given the post-processing of results required to isolate the noise generated from the Raceway at the Receiver locations. I accept the Applicant's submission that the Condition 13B (Condition 15C in Annexure A) should be struck from the conditions of consent.
The parties provide alternative terms for Condition 13E (Condition 15F in Annexure A) which deals with the timing and means of notification to residents when changes to the Event calendar are contemplated. The Respondent proposes that any additional events should not be added to the calendar less than 14 days prior to the date of that event, otherwise the Respondent's form of the condition requires affected residents to be notified not less than 30 days in advance of the change. Clearly, 30 days notice cannot be given for an event being added within 14 days of its intended date.
The Applicant's preferred form of the condition is to likewise require 30 days' notice, via its website, where a change is proposed to the calendar within 3 months of the intended change, and where that change is likely to elevate the event to a higher noise category. The Applicant's preferred form of wording is adopted as it is focused on the 3 month calendar and change involving no less than 30 days' notification via its public website.

Condition 16

For reasons similar to those set out at [173], I adopt the Respondent's form of Condition 16 (Condition 17 in Annexure A), as it deals with the testing to be undertaken of all vehicles prior to entering the circuit, rather than to set an arbitrary threshold on vehicle numbers after which testing would be required in the scenario preferred by the Applicant.
Static vehicle noise testing, as it is known, should greatly assist in identifying vehicles likely to exceed the 95 LAMax(fast) before the breach is committed, and so avoid the need to 'black-flag', or report the same to the Respondent in the manner set out at Condition 13D, or indeed, impose the consequent acoustic impact on adjoining and nearby properties.

Condition 17

Condition 17 (Condition 18 in Annexure A) seeks to address off site mitigation measures, about which much has already been written. The essential difference between the competing terms of Condition 17 is that the Applicant sets out measures proposed for noise mitigation at Receiver location R20, including a requirement for the offer to be made within 30 days of the consent taking effect, for the proposal to be sympathetic to, and not adversely affect the heritage significance of the heritage item, and for the proposal to be feasible and reasonable.
I note the proposal, outlined by Dr Tonin at [97], is described in words only and is not documented in any form. I also note the offer may be refused, or may be accepted in part or in whole, by the owner of the property at Receiver location R20.
I have also considered whether a condition can be imposed in these terms under s 4.17 of the EPA Act. The very nature of 'off site mitigation works' anticipates the carrying out of works, whether or not being works on land to which the application relates, consistent with s 4.17(1)(f) of the EPA Act, and, in the form proposed by the Applicant, contains an express outcome that this aspect of the development must achieve, consistent with s 4.17(4)(a) of the EPA Act, being that the works be sympathetic, and be not adverse, to the heritage significance of the property.
Given the particular circumstances of the property at Receiver location R20, and the somewhat subjective nature of acoustic impact, I consider it appropriate that the conditions of consent incorporate the specific mitigation measures proposed for this location, and so adopt the Applicant's proposed form of words.
Likewise, I consider it appropriate to require a condition similar in the form above in respect of the property at Receiver locations R1 and R3. In imposing this additional element to the condition, I believe it addresses the degree of uncertainty as to mitigation at those residential receiver locations, noted at [165], adopts Dr Tonin's logic at [166], to mitigate the residual impact at [167]. I also note the off site impact is quantified (see [91(2)]), and the resident at the Receiver location R1 presses the cessation of certain activities, which is addressed at [173(1)].
Finally, I note the condition requires the Applicant to extend the offer within 30 days of the consent taking effect, must be sympathetic to, and not adversely affect, the heritage significance of the property, and be feasible and reasonable. Again, the offer may be refused, or may be accepted in part or in whole.
In this case, the environmental impact that arises off site, while quantified, also brings with it a degree of subjectivity as to the nuisance created, and the degree of mitigation that may be preferred by the affected party.
To this end, a condition that requires the Noise Management Plan to be reviewed "periodically" and be subject to change based on "changes in land tenure, stipulates neither the frequency intended by the term 'periodically', nor does it contemplate the likely impacts of noise mitigation that may be desired sometime in the future by an owner of a property identified in the Supplementary Information Report prepared by Dr Tonin.
The precision of the condition is assisted by substituting the term 'periodically' with the words 'on at least an annual basis'.

Condition 18

The parties contest the frequency with which the Applicant should report on its compliance with Conditions 13-16. The Applicant considers annual reporting to be adequate while the Respondent proposes reporting on a quarterly basis.
As the wording of Condition 13E requires the preparation by the Applicant of a calendar showing the events proposed in the forthcoming quarter, I consider it appropriate for Condition 18 to align reporting on compliance to this same interval, and so the Respondent's preferred form of Condition 18 is adopted (Condition 19 in Annexure A).

Condition 44

The oral evidence of the planning experts was directed to the terms of Condition 44 that, as proposed by the Respondent, requires pavement to the areas identified as Carpark 4, 5 and 6 on Drawing DA03 (Revision P6) by Leffler Simes Architects (Ex A, Tab 37).
The Applicant proposes events identified in the Traffic Impact Assessment (Ex A, Tab 11) as follows:

Class 1 - Minor: with fewer than 500 in attendance, generating a parking demand of 340 spaces.
Class 2 - Large: with between 500 and 1500 in attendance, generating a parking demand of 1,010 spaces.
Class 3 - Major: with greater than 1500 in attendance, generating a parking demand of 1,690 spaces.

Mr Oliver considers it relevant that Water NSW, as the concurrence authority, having regard to the requirements of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, has not required the pavement of those areas for water quality reasons in its General Terms of Approval (Ex 2, folio 862-864).
Furthermore, the number of car parking spaces in the relevant areas is a total of 176, far fewer than the total of 1224 spaces for car parking areas 7-12 that are a grass surface, and which the Respondent does not seek to impose a condition to pave.
According to Ms Mowle, car parking areas 4-6 are currently in poor condition, are potholed, and formalisation of the areas will aid the controlled flow of stormwater.
Furthermore, the areas are identified on Figure 5.1 of the Traffic Impact Assessment for use by people with a disability, staff and media, and it is reasonable to expect areas for such use to be readily trafficable in all weather conditions.
Mr Oliver understands that drawing DA02 Rev D effectively supercedes the assumptions made in the TIA.
I have considered Drawing DA02 Rev D, WSP Traffic and Transport response to matters raised by Council and Transport for NSW dated 18 February 2021 (Ex A, Tab 26), the revised Event Management Plan dated May 2021 (Ex A, Tab 40) and I note areas 4, 5 and 6 are labelled 'Existing Hardstand Area'.
I accept and agree with Ms Mowle's opinion that the issue is not one of water quality, to which the environmental planning instrument at [192] is directed, but of managing the environmental impact of stormwater and overland flow on the site.
Additionally, I note the areas remain labelled for use by people with a disability.
In my view, informed by the careful review of these documents, and my own experience at the onsite view, it is appropriate for a public area such as a car park to a major recreation facility to be accommodating of people of various ability and mobility, and to manage large volumes of stormwater appropriately, and so the Respondents proposed condition is adopted.

Other conditions

Condition 75 is adopted in the form proposed by the Respondent, consistent with Condition 13C at [173(1)], and as otherwise agreed between the parties.
Condition 76 deals with hours of illumination for signage which is appropriate to set according to the operational hours of the facility, without need to further stipulate a time period.
Condition 77 proposes that replacement plants be consistent with the characteristics of the species approved in Condition 2, and is adopted in the form agreed between the parties.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development Application DA/0117/2021, for the use of the site for motorsport activities and for demolition of existing pit lane building and associated structures, construction of a new pit lane building consisting of 14 additional garages, function space, terrace, race control and commentary boxes and ambulance and emergency response vehicle parking, construction and use of new off-road experience area, use of visitor accommodation facilities and for short-term camping, general purpose markets, signage and water management infrastructure at Lot 1 in DP 832905, otherwise known as 4770 Braidwood Road, Tirrannaville is determined by the grant of consent, subject to those conditions contained at Annexure A. 3. All Exhibits are returned, except for Exhibits 1, 4 and 10. …………………… T Horton Commissioner of the Court Annexure A (416460, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2022

(1999) 110 LGERA 311

At a glance

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Judgment (20 paragraphs)

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Cases Cited (11)