Edwards v Hawkesbury City Council

APPLICANT Mr I Bailey, barrister Instructed by Mr Christopher Edwards, solicitor

LEGAL REPRESENTATIVES: RESPONDENT Mr L Leggat, barrister Instructed by Ms L. Finn, solicitor of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10562 of 2003 Christopher M Edwards v Hawkesbury City Council

1 This appeal is against council's refusal of a development application for the demolition of an existing dwelling and construction of three x 3 bedroom townhouses at 5 Chapel St., Richmond. Initially, a number of issues were identified and they include: adequacy of the plan detailing, impact of driveway on existing trees, aircraft noise amenity, public interest and effect of a draft LEP.

2 In the lead up to the hearing, further joint conferencing has been undertaken by the respective experts resulting in some amendments to the proposal and substantial agreement to the building elements. These include alteration of the driveway alignment and OSD system to protect the existing street trees, minor internal reconfiguration of access arrangements to facilitate satisfactory vehicle movements and clarification of the landscaping concepts, which can be covered by detailed conditions of consent. The experts also agreed that adequate visual privacy could be provided to the units.

3 However, the predominant issue concerns aircraft noise amenity. An associated issue concerns the weight to be given to a draft amendment to the LEP, which seeks to restrict development within certain noise affected the zones, near the Richmond RAAF Base.

4 This site is described as Lot 1 B, in DP 161103. It has a frontage of approximately 15 m to Chapel Street and a total area of 999 sq m. It presently contains an existing dwelling and there are 2 large trees in the back yard. The avenue of trees on the east and west side of Chapel Street is identified in the Hawkesbury LEP as of heritage significance.

5 The adjoining property to the north contains a multiunit development. On the southern boundary there is a single storey dwelling on a battleaxe of lot and an adjacent dwelling of heritage significance. The adjoining property to the rear is zoned Special Uses 5 (a) and contains a church and cemetery, which is identified in the Hawkesbury LEP as of heritage significance.

6 This proposal is for 3 x 3 bedroom, two-storey townhouses, which are connected to Chapel Street by a common access way.

7 Hawkesbury Local Environmental Plan 1989. Under this LEP the site is zoned Residential 2 (a) and the development is permissible with consent. Of relevance in this matter is Clause 9A-Zone objectives, Clause 18 -- Provision of services, Clauses 27 and 28 -- Heritage, and cl. 37 -- Aircraft noise.

8 Sydney Regional Environmental Plan -- Hawkesbury Nepean River No. 20.

9 Hawkesbury Development Control Plan -- Residential Development.

10 Draft Amendment No. 130 to LEP 1989. This amendment has the effect of prohibiting the development because of its location in the noise affected zone. This draft LEP has been forwarded to the Minister for gazettal .

11 Detailed evidence on behalf of Council was presented by:

12 Both the written and oral objections from neighbours have been considered.

13 For the applicant, detailed evidence was presented by: Mr R Tillott, consulting town planner.

Mr J. Mazlin, acoustic consultant. 14 The main issue in this matter concerns the suitability of this development on the site, considering its exposure to aircraft noise, due to its proximity to the Richmond RAAF Base. Assessment of this issue is required by the provisions of HLEP, wherein cl. 37 provides: Land affected by aircraft noise. 37. (1) The Council must not grant consent to the carrying out of development on land within a 20 or higher ANEF contour for the purpose of a hospital, school, child-care centre or for a residential purpose, unless the Council has taken into consideration the guidelines provided in AS 2021 regarding noise reduction and construction requirements. (2) In this clause: "ANEF" means the Australian Noise Exposure Forecast within the meaning of AS 2021.

"AS 2021" means Australian Standard AS 2021-1994 (Acoustics -- Aircraft noise intrusion -- Building siting and construction) published on 21 February, 1994; "20 or higher ANEF contour" means a noise exposure control of 20 or higher ANEF as advised by the Commonwealth Department of Defence (Air Office) in relation to the Richmond RAAF Base.

15 Mr Montgomery referred to the ANEF RAAF BASE "Plan " (Exhibit 9), which is currently used for development applications requiring consideration under cl. 37 of the LEP. He also said that consideration is required to the provisions of the DCP, dealing with external noise and vibration.

16 Relevantly cl. 1.13 of the DCP includes the following: Aims

(d) To ensure an acceptable level of amenity for all residents.

(g) To ensure that the attenuation measures of aircraft noise are not an unreasonable interference to the activities of the household.

17 The associated rules provide: Rules

(a) A noise and vibration assessment must be undertaken by a suitably qualified noise consultant for any proposed residential development other than a single dwelling house located within 100 m of the railway line within Australian Noise Exposure Forecast (ANEF) 25 or greater. 18 Mr Montgomery also noted that Council has prepared a draft LEP, Amendment 130, which has the effect of prohibiting more intense residential development within the higher noise affected zones.

19 After initial conferencing, the acoustic experts Mr Challis and Mr Mazlin agree that the subject site is situated within the 30-35 ANEF contour, based on the noise contour Plan, currently used by Council.

20 However this Plan also provides the following land use compatibility advice for areas in the vicinity of Australian airbases:

Building Type ANEF ZONES Acceptable Conditional Unacceptable Houses, Home Units, Flats Less than 20 ANEF (Note 1) 22 to 25 ANEF (Note 2) Greater than 25 ……. ……. ……. …….

Notes: 1. The actual location of the 20 ANEF contour is difficult to define accurately, mainly because of variation in aircraft flight paths. 2. Within 20 ANEF to 25 ANEF, some people may find that the land is not compatible with residential use. Land use authorities may consider that the incorporation of noise control features in the construction of residence appropriate. 3. An analysis of building noise reduction requirements by an acoustic consultant should be made and any necessary noise control feature included in the design of the building. 4. Buildings containing offices, workshops or laboratories should be treated according to the general building type in which they are normally included. 5. This table is included in the Standards Association of Australia AS - 2021.

21 In the application these controls, the respective acoustic consultant's have adopted fundamentally different approaches. Initially Mr Challis bases his analysis on the site being located within the 30-35 ANEF and concludes that this proposed residential development is unacceptable, after reference to the land use compatibility table.

22 Against this, Mr Mazlin relies on his experience in the Hawkesbury area, whereby individual noise assessment reports, based on the most likely aircraft type, are submitted with applications in the noise affected zones for Council's determination. He reconciles this approach with the following "exclusion Note 4 in AS 2120", which allows some developments to proceed on the basis that appropriate aircraft noise reduction (ANR) measures are incorporated into the development. Note … 4 . This Standard does not recommend development in unacceptable areas. However, where the relevant planning authority determines that any development may be necessary within existing built-up areas designated as unacceptable, it is recommended that such development should achieve the required ANR determined according to cl. 3.2. For residences, schools, etc., the effect of aircraft noise on outdoor areas associated with the buildings should be considered.

23 However, Mr Challis does not consider this approach appropriate in this case because of the incorporated Flow Chart in Figure 1.1 of AS 2120, only allows development classified as "unacceptable" to proceed in special cases, which he doesn't consider exist here. Nevertheless he has undertaken some site sound readings and associated calculations to assess ANR opportunities. But he acknowledges that these readings require further adjustments for reliable use.

24 Mr Mazlin also arranged for sound readings to be taken at this site, over the period of 2, 3 Nov 2004. From this he found that the maximum noise generation was 82.4 dB(A) from a Hercules C. 130 H aircraft. Accordingly, he says that adequate sound insulation / attenuation measures can be incorporated into the new houses to achieve reasonable amenity. This level of amenity would accord with the following specification in a S. 2021 ; "the appropriate indoor design noise level used for "sleeping area, dedicated lounges" is 50 dBA, for "other habitable spaces" is 55 dBA, and for "bathrooms, toilets, laundries" is 60 dBA." 25 Mr Mazlin identified the various insulation components comprising roof / ceiling construction, wall construction, glazing and ventilation that would be required. Regarding the ventilation he states that: An acoustically insulated building must be kept virtually air tight to exclude external noise. In general this means all windows and doors must be kept closed. If they are opened for natural ventilation purposes, the aircraft noise reduction of the building envelope will be reduced.

Since windows and doors are required to be closed, to comply with Australian Standards AS 2021-2000, the standard requires that building ventilation should be in accordance with the Building Code of Australia on the assumption that the windows and doors are closed to exclude aircraft noise. Mechanical ventilation or air-conditioning systems complying with Australian Standards AS 1668-19 91 "The Use of Mechanical Ventilation and Air _ Conditioning in Buildings -- Part 2: Mechanical Ventilation for Acceptable Indoor -- Air Quality" should be installed.

All air-conditioning ducts from outside to inside should have noise reductions greater than the wall or roof/ceiling Rw values where the ducts pass through. The noise emissions of any external units should be such as to not cause annoyance for neighbours. The noise levels of internal units should be less than the prescribed levels each area as set out in AS 2021 - 2000. 26 Considering the fundamental differences between these acoustic consultants, they were required to provide further concurrent evidence. On the assumption that Note 4 circumstances allows ANR, Mr Challis considers that the maximum noise reading of 84.2 dB(A) is underestimated by Mr Mazlin. Instead, he considers a more realistic figure is 92 dB(A), allowing for a loaded aircraft ( 70,000 MTOW) at takeoff.

27 Furthermore, he says that critical consideration also has to be given to the Boeing 707-320 aircraft, which operates from this base. Mr Challis estimates this aircraft would have a take off noise level of 96 dB(A) and greater, if fully laden and should accordingly be used in ANR assessments.

28 In addition to this, Mr Challis also refers to s. 3.1 of AS 2120, which provides a procedure for estimating aircraft noise likely to be experienced at building sites. This procedure involves: (a) the determination of the aircraft types forecast to be operating at the aerodrome near the building site; (b) the graphical determination of a set of distance coordinates which describe the position of the building site relative to the aerodrome, and thus are an estimate of the position of the building with respect to that of aircraft during takeoff, landing and circuit training operations; and (c) the prediction of the aircraft noise level to which the building site will be exposed.

29 This procedure requires determination for each runaway of: (i) DS, the distance in metres from the building site to the extended runway centreline … (ii) DL , the distance in metres from the closer end of the runway to the intersection of the extended runway centreline … (iii) DT, the distance in metres from the further end of the runway to the intersection of the runway centreline ... 30 According to Mr Challis' application of this procedure, he estimates a maximum noise level in the order of 85-86 dB(A). However, I note that Mr Mazlins is somewhat reluctant to accept this approach.

31 In addition to this difference on maximum noise level, another uncertainty concerns the intensity and scheduling of military aircraft. According to Mr Mazlin's 2 day survey, 6 Hercules movements took place. However, the Department of Defence map (Exhibit 10) contains the following table, which indicates a much higher level of daily movements. AVERAGE DAILY AIRCRAFT MOVEMENT FORECAST TYPE7am - 7 pm7am - 7 pmTOTAL MILITARY175.731.9207.6

32 In my opinion, the frequency of movements, particularly night-time is an important factor to be considered, because of the noise disruption potential to sleep patterns. I also consider that some consideration should be given to the effect of noise on the outdoor areas, as required by Note 4. When I adopt a conservative approach on these aspects, it appears that Mr Mazlin's limited survey significantly underestimates the number of flights and consequently underestimates likely noise dis amenity.

33 Having considered these disparate approaches and conclusions, I am nevertheless satisfied that this proposed medium density development will be located within a high noise area, which is described as 30-35 ANEF, where the current controls indicate residential development is unacceptable. Accordingly, if however any special circumstances apply, all buildings will require extensive insulation in order to achieve acceptable internal noise amenity as prescribed by the Australian Standard. This includes effective sealing on the critical rooms against aircraft noise intrusion and acceptable vertilation.

34 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent, principally because it is an unacceptable form of development in this existing noise environment.

35 Insofar as a number of design and other merit issues for the proposal were raised initially, I note that the design amendments reasonably address these to meet council's requirements, as confirmed in the final joint planners conference report.

36 However in my assessment, the threshold issue concerns the noise exposure amenity due to the effect of RAAF aircraft using the nearby Richmond Base. I accept Mr Montgomery's evidence that the principal control use for assessment of noise affected developments is the ANEF RAAF BASE Plan (Plan), (Exhibit 9).

37 Reference to this Plan confirms the agreement of the acoustic consultants, that the site is within the 30-35 ANEF contour. This being the case, the associated land use table indicates clearly that houses, home units, flats are unacceptable in zones greater than 25 ANEF. This position is confirmed by reference to the base control, AS 2120 - 2000, from which the Plan was derived.

38 Whilst Mr Mazlins approach relies on his experience in the area, that noise mitigation measures can be incorporated in the buildings, nevertheless I consider the Australian Standard only allows residential development in this higher noise contour in "special cases". In my assessment of the evidence, no compelling evidence was presented confirming this application represented a special case. Instead, considerable reliance was placed on councils prior approval of other residential developments in a similar noise environment. However I give little weight to these previous approvals and instead consider determining weight should be given the application of appropriate planning principles to achieve acceptable community outcomes. 39 More relevantly however, the DCP aims for an acceptable level of amenity for residents and that attenuation measures are not an unreasonable interference to the activities of the household.

40 In this case, Mr Mazlin initially stated that the new dwellings require air conditioning and effective sealing to restrict noise intrusion to a reasonable level. Whilst he later qualified this, it appears to me that the random operation of military aircraft, over the night time period without curfew, would necessitate extensive use of air-conditioning and significantly restrict opportunities for practical access to natural ventilation.

41 Under these circumstances, I consider this likely to result in unreasonable interference to be normal activities of the household and accordingly is noncompliant with the DCP noise control and also energy conservation initiatives.

42 This general issue of noise impact was considered in Stockland Developments v Wollongong Council and others [2004] NSWLEC 470, Roseth SC and Brown C dealt with the Planning principle for noise attenuation when there is a significant noise impact on a proposed development. The relevant paragraph of the decision reads: 6. As a general planning principle, 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 sensitive receptor. This is true whether the noise source generated by a proposal is a new noise and the receptor exists or the noise generator exists and the receptor is a proposed use. In 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 cost associated with treating the noise at the source, the willingness of the noise generator to be treated and the potential amenity impacts associated with noise attenuation at the receptor. Depending on the circumstances of the case, the cost of attenuation measures may be borne by either party or shared between them, irrespective of the location. 43 Obviously in the subject case, it is impractical to attenuate at the source, so that other action is required if the consent authority deems residential development appropriate and / or necessary in this situation.

44 However it appears to me that the council's response action is to address this matter by way of the draft Amendment No.130 to the Hawkesbury Local Environmental Plan. This amendment proposes to prohibit medium density development within the higher-level noise affectation contours. The amendment recognises the existing residential zonings and continues to allow low-density residential development in these noise contours. According to Mr Montgomery, the principle adopted is that increased residential densities should not be permitted in areas of high noise affectation.

45 Insofar as the various submissions have been made regarding the status of this Amendment No. 130, the only substantive evidence put before the Court is Mr Montgomery's opinion that it is imminent and certain, based on his experience with its passage through the planning system, which includes issue of the section 68 certificate. By reference to the chronology of events presented, I am not satisfied at this stage that the form of draft Amendment is imminent, considering the amount of density dezoning and possible savings clause inclusion.

46 However, it does seem me that the principle to restrict increased residential densities in areas of high noise concentration is a desirable community objective and accordingly has a reasonable degree of certainty. Therefore I consider this principle should be given substantial weight, which contributes significantly to the failure of this application, notwithstanding its current permissibility.

47 But I have also considered the applicant submissions regarding possible changes to the current ANEF Plan. This arises from the Department of Defence letter of 9 September 2004, which the states: It should be noted that the 1997 ANEF for RAAF Base Richmond is to be updated and may not accurately reflect current operations at RAAF Base Richmond.

In accordance with the Australian Standard AS 2021-2000, the 1997 ANEF map for RAAF Base Richmond is being updated to reflect the changed operations at RAAF Base Richmond. The new ANEF the map is to account for the introduction of the Hercules C130J model after 1999, commencement of a significant use of flight simulators and the anticipated retirement from the service of the B 707 tanker aircraft later this decade. Current Defence Planning is that the new ANEF map for RAAF Base Richmond will be available to the public in late 2004.

Notwithstanding Mr Wegners statement and the changes in operations at RAAF Base Richmond outlined above, the 1997 ANEF represents the situation at the time and should in Defences view continue to be relied upon by Hawkesbury City Council until such times as it is replaced . 48 On this basis then, the application of this approach confirms the site should be considered relative to its situation within the current 30-35 ANEF noise contour, which renders it unacceptable for home units or multiunit development as proposed and as no special case was made for exclusion, or that this density of multi unit dwelling is necessary as allowed by AS 2120, I consider this application fails.

Court Orders. (1) The appeal is dismissed.

(2) Development application No. DA 0612/01 for the demolition of an existing dwelling and construction of three townhouses at 5 Chapel St., Richmond is refused.

(3) The exhibits may be returned except for 1,3, 6, A, E and K.

  R Hussey
  Commissioner of the Court
  ljr

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