Land Specialists Pty Ltd v Port Stephens Council

Land and Environment Court (NSW)|2021-09-24

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a deemed refusal by the Respondent (Council) of development application number 16‑2021‑16‑1 (DA) which seeks consent for subdivision of land being lots 4 and 5 in Deposited Plan 239141 known as 171 and 173 Richardson Road, Raymond Terrace (site) for residential purposes.
The hearing was conducted by audio‑visual means in accordance with the Court's COVID‑19 Pandemic Arrangements Policy April 2021. During the course of the hearing there was no application for the Court to inspect the site and it was plain from the issues between the parties and the material before the Court, that there was no need for the Court to conduct a site inspection in order to determine the matter.

Site and Surrounds

The site has a total area of 2.521 hectares with lot 4 having an area of 1.251 hectares and lot 5 having an area of 1.27 hectares. On the southern portion of lot 4 is an existing dwelling, shed and pool. Lot 4 has little vegetation with the only trees being two large Callistemon, one silky oak and one camphor laurel. On the northern portion of lot 5 is an existing dwelling, pool and two sheds. Lot 5 includes several eucalyptus trees, leptospermum trees, melaleuca and liquidambar. It is proposed as part of the subdivision to retain the dwellings and other improvements on lots 4 and 5 within smaller allotments in the subdivision. The site gently slopes in a general southerly direction.

The subdivision

The proposed subdivision retains both of the existing dwellings and will result in a total of 23 lots plus a drainage reserve lot. The subdivision includes the extension of Baluster Street and Lakeview Crescent which presently terminate to the west of, or at the west of, the site. I set out below an image of the proposed subdivision.
The proposal also seeks the removal of the following: 1. up to 1.9 hectares of introduced grasses and ground cover; 2. removal of one hollow bearing tree and a camphor laurel; 3. removal of about 14 trees, including four koala food trees; 4. potentially grade trimming of up to five trees within the road reserve and the potential injury to native fauna during the felling of trees.
That said, there is no issue in these proceedings in relation to the appropriateness of the removal of trees or other flora, nor the impact on fauna.
The drainage reserve is lot 24, having an area of 2,463 square metres. The existing dwelling on lot 5 will be encompassed within the proposed lot 5 with an area of 2,500 square metres. The dwelling on existing lot 4 will be encompassed within proposed lot 22 and have an area of 3,368 square metres. The remaining 21 lots of the proposed subdivision range in area from 500 square metres to 640 square metres.

Planning Regime

The land is subject to Port Stephens Local Environmental Plan 2013 (PSLEP 2013). The land is zoned R2 low density residential and a variety of land uses are permissible with consent in the zone. Subdivision is permissible under PSLEP 2013 pursuant to cl 6. Returning to the zone, it is, of course, a mandatory relevant consideration to take into account the objectives of the zone when considering development within the zone, and I set out here under the objectives of the R2 zone and the land use table. I will return to that in due course. Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To protect and enhance the existing residential amenity and character of the area. • To ensure that development is carried out in a way that is compatible with the flood risk of the area. 2 Permitted without consent Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Tank-based aquaculture; Water reticulation systems 4 Prohibited Any development not specified in item 2 or 3
Clause 4.1 of PSLEP 2013 and the lot size map provide for a minimum lot size for the site of 500 square metres. Each of the lots complies with that development standard.
At the heart of the determination of the issues before the Court is cl 7.5 of PSLEP 2013, which is as follows: Development in areas subject to aircraft noise. (1) The objectives of this clause are as follows: (a) to prevent certain noise sensitive developments from being located near the RAAF Base Williamtown Airport and its flight paths, (b) to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings, (c) to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport. (2) This clause applies to development that: (a) is on land that: (i) is near the RAAF Base Williamtown Airport, and (ii) is in an ANEF contour of 20 or greater, and (b) the consent authority considers is likely to be adversely affected by aircraft noise. (3) Before determining a development application for development to which this clause applies, the consent authority: (a) must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and (b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021‑2000, and (c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021‑2000. (4) In this clause: ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the RAAF Base Williamtown Airport prepared by the Department of the Commonwealth responsible for airports. AS 2021‑2000 means AS 2021‑2000, Acoustics‑Aircraft noise intrusion‑Building siting and construction.
I will return in detail to cl 7.5, but it can be observed that there is some doubt about its specific application to a development such as the present, which is only for subdivision (and subdivision works). There is no increase in the number of dwellings or people affected by aircraft noise as a result of the development because the development is for subdivision only, and so the consideration in cl 3(a), (b) and (c) may not at first blush be considered relevant. Indeed, I observe that is the view taken by one of the submitters following the public exhibition of the application.
In my view, in order to approve a subdivision for residential development, I must be satisfied that the purpose of the subdivision can be fulfilled; that is I must be satisfied that the lots to be created are capable of being developed with dwelling houses or other permissible residential development. It is for that reason that the parties and the Court are, effectively, treating cl 7.5 as applicable to the consideration of the subdivision application. For that reason, I am presently satisfied, as is obviously the case, that the subdivision is on land that is near to the RAAF Base Williamtown Airport and is in an Australian Noise Exposure Forecast (ANEF) contour of 20 or greater, and that the land is likely to be adversely affected by aircraft noise. Such matters are not in dispute nor could they seriously be so.
It follows that the task will be to address the matters in subcl 7.5(3), which involves a consideration of the fact that consequent upon a subdivision there will be an increase in the number of dwellings and people affected by aircraft noise, and I must consider the location of the development in relation to certain criteria, and then must be satisfied that the dwellings proposed to be constructed will meet the indoor design levels indicated. I will return to those subject matters. But it is only if I am so satisfied that the subdivision for residential purposes is capable of being approved.
It will be noted that cl 7.5 of the PSLEP 2013 makes reference to Australian Standard 2021‑2000 titled "Acoustics ‑ Aircraft noise intrusion ‑ Building siting and construction" (the AS). The AS describes its scope in cl 1.1 in the following terms:
It is to be observed that the AS revised guidelines for determining the matters identified and that specifically it excludes the acceptability of outdoor spaces as a consideration within the AS.
The objective of the AS should also be noted: "1.2 OBJECTIVE This Standard is concerned with land use planning and building treatments in the vicinity of an airport. The objective is to provide guidance to regional and local authorities, organizations, communities and others associated with urban and regional planning and building development on the siting and construction of new buildings against aircraft noise intrusion and on the acoustical adequacy of existing buildings in areas near aerodromes. This Standard is not intended to be applied for the purposes of assessing the effects of noise from aircraft. However, it should be noted that the effects of noise from aircraft are not confined to areas where the noise exposure exceeds 20 ANEF and may occur at or below 20 ANEF (see Appendix A for a description of the ANEF system)."
Whilst it can be observed that because an objective of the AS is to provide guidance to regional and local authorities, and others associated with urban and regional planning and building development on the siting and construction of new buildings against aircraft noise, that it is focused on providing guidance at a strategic level for land planning.
That may be one of its objectives. However, in circumstances where a local environmental plan specifically refers to the standard for set purposes then plainly, the standard is incorporated for those purposes for the assessment of a development application and ought to not be treated simply as a guide for strategic planning. Nevertheless, it is a guide or provides guidelines, but is to be given significant weight.
It is necessary to understand some terminology used in the course of the AS and the expert acoustic and planning evidence. The ANEF is defined in the following terms of: "A single number index for predicting the cumulative exposure to aircraft noise in communities near aerodromes during a specified period (normally one year). .. This single number index is useful for rating the compatibility of various land uses with respect to aircraft noise. For this purpose, equivalent ANEF values at individual positions around an aerodrome are combined on a map to form ANEF contours."
The aircraft noise level (ANL) definition should also be noted: "The arithmetic average of the maximum sound levels occurring during a series of flyovers by a specific aircraft type and load conditions measured in A-weighted decibels (dB(A)) using the S time-weighting of a sound level meter."
The aircraft noise reduction (ANR) is defined as follows: "A calculated or measured value. For design purposes, the arithmetic difference between the aircraft noise level at a site and the indoor design level, as described in Clause 3.2.2. For measurement purposes the difference between the exterior and indoor sound levels as determined in accordance with Appendix D."
The ANEF contour map is the establishment of single numbers converted into contours and is used for land use planning and the consideration of development applications, such as the one before the Court. Whilst the contour map is published, it is somewhat difficult to understand the relationship of the contours with the proposed subdivision and in addressing that issue, the acoustic experts caused to be prepared an overlay of the proposed subdivision with the contours. I reproduce the image below.
The proposed subdivision is outlined in black and the contours are shown as 24 to the south‑west of the site, 25 running roughly through the middle towards the northern half of the site and the 26 contour further to the north‑east of the site. I will return to the consequences of those contours in due course.
The AS requires that a proposed development be classified by reference to its location in relation to the contours. Clause 2.3 is headed "Action Resulting from Acceptability Determinations": "2.3.1 Acceptable If from table 2.1, the building site is classified as 'acceptable' there is usually no need for the building construction to provide protection specifically against aircraft noise. However, it should not be inferred that aircraft noise will be unnoticeable in areas outside the ANEF 20 contour. 2.3.2 Conditionally acceptable If from table 2.1, the building site is classified as 'conditionally acceptable', the maximum aircraft noise levels for the relevant aircraft and the required noise reduction should be determined from the procedure of Clause 3.1 and 3.2, and the aircraft noise attenuation to be expected from the proposed construction should be determined in accordance with Clause 3.3. 2.3.3 Unacceptable
If from table 2.1, the building site is classified as 'unacceptable' construction of the proposed building should not normally be considered. Where in the community interest redevelopment is to occur in such areas eg a hotel in the immediate vicinity of an aerodrome refer to the notes to Table 2.1."It is clear that depending upon the nature of a development and its location, the AS will provide that in terms it is "acceptable", "conditionally acceptable" or "unacceptable". The range of potential developments which are to be considered are set out in table 2.1 which is reproduced below.
It is observed that in relation to houses that if a house is within an ANEF zone of less than 20 ANEF then it is in the acceptable category, if it falls within the 20 to 25 ANEF it is conditionally acceptable, and if it falls in the zone greater than 25 ANEF then it is categorised as unacceptable.
Returning to the overlay of the subdivision on the contour map, it can be seen that in terms of the AS classification, lots 1 to 5, 6 to 10 and 18 to 19 would be characterised as unacceptable. Lots 11 to 12, 13 to 17 and 20 to 23 would be classified as conditionally acceptable. I interpose that lot 5, upon which there is an existing dwelling, is triggered as acceptable because it is an existing dwelling, and other than a reduction in the size of its curtilage by a reduction in size of the lot, there is no change proposed.
There are therefore, some 11 lots which fall within the in excess of 25 ANEF and 12 which are either acceptable because of an existing dwelling or conditionally acceptable as falling below 25 but above 20.
Where a proposal falls within the conditionally acceptable category, then as shown in cl 2.3.2 set out above, there is required to be noise attenuation measures carried out to (in this case) a dwelling house to ensure that certain internal sound measures are reached.
Table 3.3 of the AS sets out the indoor design levels for a variety of development types and, specifically, houses are catered for at the top of that table, and I set out the table:
Putting to one side the question of the contour for the moment, the attenuation required in the event of a dwelling falling within the conditionally acceptable category is determined by taking the average maximum noise from aircraft at the relevant location and the indoor design sound level appropriate for the type of use, and the difference is then the attenuation required. That is why it is necessary first to determine the average maximum noise caused by aircraft at the particular location.
The AS provides a method for carrying that out by identifying the noises emitted by various aircraft used for both private or commercial purposes. There is a note to table 3.1 on p 21 of the AS which states: "3. For military aircraft the appropriate noise levels should be obtained by contacting the Department of Defence."
It is important to understand the average maximum noise level of military aircraft because it appears to be common ground that the noisiest aircraft which affect the site are, indeed, military aircraft.
Port Stephens Development Control Plan 2013 (PSDCP 2013) also applies to the site and the Council has a specific section, B6, dealing with Williamtown RAAF Base aircraft noise and safety. Part B6.A deals with site acceptability. The objectives of this part are: "To ensure development satisfies the requirements of the Local Environmental Plan: to ensure appropriate consideration is given to land burdened by aircraft noise."
It is those objectives which the subsequent development controls seek to achieve. I set out the developmental controls in cl B6.1 below. "B6.1 When development is located within the 2025 ANEF, which is identified by Figure BP, it is classified into one of the following classifications through referencing Figure BL: • Acceptable - no design measures required to reduce aircraft noise, or • Conditionally acceptable - design measures required, or - An acoustic report is required for the following: - to support development that is classified as conditionally acceptable - to support subdivision of land and subsequent permissible development types by referencing Figure BL and Figure BM • Unacceptable - development is generally unacceptable. However, details submitted with a development application that demonstrate the following will be considered on a merit-based approach: - Development on a vacant pre-existing lot within the ANEF 25-30 noise contours that satisfies AS 2021 - Acoustics - Aircraft noise intrusion - Building siting and construction indoor noise requirements - Replacement of a pre-existing dwelling in any of the ANEF noise contours satisfies the AS 2021 - Acoustics - Aircraft noise intrusion - Building siting and construction indoor noise requirements - Development on land zoned B7 Business Park and adjacent to the Williamtown (Newcastle) Airport."
The controls largely reflect the Australian Standard with some additional criteria. It has been noted that in the case of "unacceptable development" in the AS, the provision in PSDCP 2013 cl B6.1 provides the development is "generally unacceptable".
The clause then provides that there may be exceptions, as noted from the language above, "however, details submitted with a development application that demonstrate the following will be considered on a merit-based approach". There is debate about the meaning of this provision and, in particular, whether the three circumstances identified are the only exceptions to a former prohibition of development or whether other exceptions are permissible, and I will deal with that later in these reasons.
Part B6.B deals with indoor noise. The provision is: "B6.B Indoor noise Objective To ensure acceptable levels of indoor noise in accordance with the relevant Australian Standards Development controls B6.2 Development must satisfy the maximum internal sound levels specified in Figure BM by providing an acoustic report B6.3 Noise attenuation levels that comply with Figure BM are not considered to be reasonable or practicable for a dwelling when seeking to achieve noise reduction greater than: • 35 dB(A) for sleeping areas • 30 dB(A) for habitable spaces."
It is to be noticed that the objective is seeking to achieve the indoor noise levels as commanded by the AS. However, the controls included a constraint upon the level of attenuation which is required, such that it ought to be reasonable or practicable. That is to say, that whereas attenuation is technically feasible, one might have thought to effectively, soundproof or mitigate any dwelling from any noise, including, by way of a silly example, a complete bubble over a house, the Council has sought to ensure that in circumstances such as the present, that the measures which will be required for the construction of a dwelling are reasonable and practicable.
In figure BO the Council illustrates its approach to the ANEF zones. I reproduce figure BO below.
Council has, logically in my opinion, focused upon the capacity of a lot to support a dwelling house within the conditionally acceptable or acceptable ANEF zone; that is to say, in the example shown on the top right of the image, part of the lot is within the 25 or above 25 ANEF zone, but, nevertheless, the building, a subdivision with a dwelling in the place shown, would be conditionally acceptable because the house itself is below the ANEF 25 zone. In the bottom right‑hand image, the Council demonstrates where this is both part of the house and the remainder of the lot in the above 25 ANEF zone then it is generally unacceptable.
I should also observe section C1 subdivision which includes minimum sizes of building footprint for the lots to be created, that is the provision C1.2 provides that a residential lot must be capable of supporting a building footprint of 15 m by 8 m or 10 m by 12 m. That is the footprint which the Council has assumed to be adopted in figure BO and applied such a footprint to its consideration, at least in the PSDCP 2013, of whether a lot is capable of supporting a dwelling in the conditionally acceptable ANEF zone.

Lay Evidence

The Council notified the development application in accordance with its policy and submissions from three parties were received ‑ the Department of Defence, a submission from a planning firm on behalf of Newcastle Airport Pty Ltd and a local resident. The resident from Lakeview Crescent was concerned about the traffic at the intersection of Halloran Way and Richardson Road, and sought assurance that such an intersection would be upgraded to cater for the additional traffic caused by the subdivision.
I interpose that the Council has not suggested that there is not the capacity both in the road network and the subdivision to deal with the traffic ultimately generated by dwelling houses on the proposed subdivision lot. The resident was also concerned to ensure that Lakeview Crescent was, in fact, extended rather than retain the existing turning circle at the end and wished to be assured that if it was extended, there would be an extension of the kerbing gutter.
It would appear that as there is that extension, that concern will be satisfactorily met. The submission on behalf of Newcastle Airport was concerned about what it described as a noise sensitive development in an inappropriate location and should not be supported. It was largely reflective of the issue taken by the Council in this case.
The comprehensive submission from the Department of Defence (DOD) was signed by Mr Charles Mangion, the director of land planning and regulation of DOD. Mr Mangion also gave oral evidence. Mr Mangion noted that the RAAF Base is one of Defence's major military air bases providing critical capability that significantly contributes to the defence of Australia. Mr Mangion expressed the concern about sensitive land use in the proximity to the airport and the potential for the future occupiers of the subdivided lots to complain to the relevant authorities, including DOD and put at risk the continuing operation of the airport facility.
Mr Mangion informed the Court that DOD objects to any residential development which is above the ANEC 20 contour, which is in contrast to the AS and the criteria adopted by the Council. On behalf of DOD, Mr Mangion said that the site should be treated as a greenfield site not an infill development site, and so that it reinforced that the development should not occur above the 25 ANEF contour. Mr Mangion also said that it was the view of defence that there were some flaws in the acoustic experts' joint report, in particular, the observations or conclusions of Mr Cooper. Importantly, it was said that the aircraft noise level or ANL to be adopted for the purposes of any attenuation should be 93 dB(A).
In cross‑examination, Mr Mangion was asked to confirm that the operation of what is known as F35A aircraft were approved by use at Williamtown pursuant to the relevant Commonwealth legislation. He agreed with that proposition and further agreed that there was a condition of that approval that if noise levels exceeded those predicted in the EIS, which supported the approval then corrective action is to be taken. That approval is before the Court and Mr Mangion was correct in his oral evidence.
I interpose that as part of the Council documents, it included a report by Marshall Day Acoustics dated 26 May 2021 (MDA report) which reviewed F35A noise and flight path activity from December 2018 to December 2020 with a view to ascertaining whether or not there was compliance with the predicted levels in the AS. The conclusions were that there were variations and one would have thought that, that means that there are certain corrective actions which will be required, although nothing turns on that specifically in this case.
The applicant read and relied upon two affidavits, one from each of the owners of lots 4 and 5, being Tracie‑Lee Irvine affirmed 19 August 2021 and Ian Hamilton Lovell sworn 11 August 2021. Each of them has lived at the respective properties for a significant period of time and express their opinions about their experiences with aircraft noise and their capacity to carry on their ordinary lives notwithstanding that there is that noise.

The Issues

There are two principal issues, although there is significant overlap between them. As described in the statement of facts and contentions, issue number 1 is: "1. Aircraft noise: (a) the consent authority could not be satisfied that the development complies with cl 7.9 ‑ development in areas subject to aircraft noise of PSLEP."
Thereafter further particulars are set out. In essence, the Council says that in considering the suitability of the site pursuant to s 4.15(1)(c) of the EPA Act, the Court would not be satisfied that the site is suitable having regard to aircraft noise and the matters to be taken into pursuant to cl 7.5 of PSLEP 2013, the AS and the PSDCP 2013. The second issue is that the proposed subdivision is not in the public interest for reasons which relate to the acoustic impacts and are particularised as follows: "A. The development will result in an increase of residential lots located under a flight path and within the 20‑25 and 25‑30 ANEF contours; B. Considering the operations of the Newcastle Airport and its future international upgrades and the RAAF operations, external noise and its impact on the public is considered to have a negative impact."
In submissions the public interest contention was expressed slightly differently, about which I make no criticism, but I will return to it.

Planning Evidence

Expert planning evidence was given by Mr J Mead retained by the applicant and Ms E Allen, the principal development planner of the Council. The planners provided a very comprehensive, well written and helpful joint report. As a consequence of the quality of that joint report, they were not required to give oral evidence.
The planners agreed that the land has been zoned residential for some decades, and there is a reasonable expectation that it would be developed in accordance with its zoning and planning controls. They agreed that: "1.6. Particular (e) - it is agreed that in relation to Clause 7.5(3): • the clause does not prohibit the proposed development; • that a consent authority must only consider (a) and (b), but must be satisfied of (c); • the proposal will increase the number of dwellings or people affected by aircraft noise, however the land has for several decades been zoned to permit residential development and there would be a reasonable expectation that it would be developed in accordance with that zoning and the planning controls which apply. • Council's Housing Strategy would treat this land as land capable of residential development based on its zoning, but the strategy does not take into consideration site specific constraints which must be assessed as part of a development application; • whether (c) is satisfied is for the acoustic experts. The planners understand that this requirement is agreed to have been satisfied. The experts also agree that the contention does not relate to lots which are within the 20‑25 ANEF contour because they are able to provide a building envelope within that contour. The contention only relates to those which are fully or partially outside the 25 ANEF line contour and, therefore, within the 25‑30 ANEF contour."
The planners agreed that note 4 to table 2.1 of the AS is a matter for consideration at the land use planning stage when the zoning of the land has been considered or reconsidered, and that the Council has considered the recommendation in that note when it has had opportunities to review the Local Environmental Plan, and determining which uses are unacceptable for the ANEF zone on the site. They also agree that the planning authority has determined that the development is necessary within the existing built up area.
The experts agree that the site is not a "greenfield", but rather is an infill site within a residential zone. They observed that it adjoins existing residential development, it is within a suburban environment, contains some development which will be retained, and it has been zoned for low density residential use for a long time. It is the combination of those characteristics of the site, they say, that make it an infill site and not a greenfield site. They say on the basis of the planning history, in town planning terms there is no other reason for it not to be redeveloped for residential development subject to it being demonstrated that the acoustic impacts are acceptable.
The experts then made observations about the proper approach to the AS and that in Mr Mead's view the development should be approved because the development as proposed is necessary to meet the objectives of the zone and to fulfil the underlying reasons for applying that zone into the site for a significant period of time and, therefore, meets the requirements of the note in the AS.
Mr Mead also notes that many houses exist in the locality and include outdoor space where they are within the ANEF 25 plus contour. Ms Allen disagrees with that conclusion, and whilst accepting the standard itself is not a prohibition, the application of the PSDCP 2013 by providing the controls to which I have referred limits the circumstances for merit assessment in the ANEF 25 plus contour and this development does not fall within one of those exceptions.
In relation to outdoor noise, Ms Allen observed that whilst a dwelling internally may be able to be attenuated to comply with the required indoor noise level, some of the outdoor areas may still be in the unacceptable area and that high noise levels could lead to a negative social impact in terms of the noise annoyance to future residents.
The crux of Ms Allen's is expressed in par 1.54 of the joint report, which is in the following terms: "1.54. Considering the ANEF 2025 contour mapping, if lots are located in the 25-30 ANEF they are considered unacceptable, from a town planning perspective there does not appear to be flexibility in the interpretation of the map. If discretion can be applied by conducting an acoustic assessment which deems the internal noise levels can be achieved, that contradicts with the purpose of the ANEF mapping. There would be no need to show any contours above 20 (as anything below 20 ANEF is acceptable) as all development would require an acoustic assessment to determine the developments suitability, rather than its location on the ANEF map. AS2021-2015 provides the framework to conduct these acoustic assessments, and appears to contradict the purpose of the ANEF Mapping. Acoustic Evidence."
Evidence was given on acoustic matters by Mr S Cooper, retained by the applicant, and Mr N Gross retained by the Council. Both Mr Cooper and Mr Gross are experienced and highly regarded acoustic experts. They both have dealt extensively with aircraft noise issues. They provided a comprehensive joint report and gave oral evidence.
At the outset of their oral evidence, I sought to understand the essential approach to the acoustic assessment process. The ANEF contour is a line drawn on a plan joining single whole numbers of a same value, the index for predicting the cumulative exposure to aircraft noise. The index and contour are derived from a complex analysis which includes inputs of aircraft noise, aircraft types, number, mix, flight paths and times of flying. It is that contour which then is applied to the categorisation in the AS of acceptable, conditionally acceptable or unacceptable. The category "unacceptable" is subject to the note in the AS referring to exceptions.
Mr Cooper said that the ANEF last published by the relevant Commonwealth authority for the airport is invalid or wrong. Mr Gross said, wrong or not, it is the current ANEF which is the relevant one and should be applied. Mr Cooper also said that because the AS speaks of the index as whole numbers or integers then one can look past the contour line joining those numbers and consider the area covered by it, for example, ANEF, as including the area between the 25 line and the 26 line as having an ANEF value of 25. That is, Mr Cooper said that although an ANEF may be in excess of 25, that until it gets to 26, it remains at 25 because the contour is plotted by whole numbers, not by numbers with decimal points. Mr Gross says that the most recently issued ANEF contour map should be applied and that any land beyond the 25 ANEF line is in excess of the 25 ANEF.
Mr Cooper and Mr Gross agree that the ANL to be determined is obtained by taking the average maximum level of aircraft measured over a number of typical days. It is important to establish the ANL so as to know the level of mitigation required to achieve an appropriate indoor level when that is necessary. Mr Cooper had adopted an ANL of 86‑87 dB(A) based first upon testing carried out by a consultant retained by the applicant for the purposes of the DA (not Mr Cooper), which stated that 85 dB(A) was the average maximum and, therefore, the ANL.
Mr Cooper looked at some data from the MDA report and added one to 2 dB(A) to the figure 85 to reach an assessment of the ANL of 86‑87 dB(A). Mr Gross noted that notwithstanding the note in the AS, to which I have referred, to ask DOD, that DOD had either not been asked and/or had not provided information for the purpose of establishing the ANL and so he would not without more accept 86‑87 dB(A) as the ANL. He said it is likely to be in the range of 87 dB(A) to 93 dB(A).
In oral evidence Mr Cooper said that over a number of years he has tried to obtain relevant data from DOD and has always been refused. I accept that evidence because it is entirely understandable that the information which may be sought, which is necessary to include, for example, the load being carried by a particular aircraft at a particular time is an operational matter which is not a matter in the public domain.
Mr Cooper relied upon the publicly available data in the MDA report which included data from the DOD, but not all the detail of, for example, loads being carried by aircraft, but it certainly included the noise emissions from aircraft. Mr Cooper explained data he used from the MDA report to reach his conclusion.
Mr Gross was asked that on the assumption no data would be forthcoming from DOD what average maximum level or ANL would he adopt in an assessment. He said that 90 dB(A) would be appropriate. He said so taking into account the earlier measured number of 85 dB(A) and making a, probably conservative, allowance not knowing if all the flights noted in the MDA report were loaded or without load. Mr Cooper having heard Mr Gross's evidence then responded that he would not argue with the adoption of a 90 dB(A) ANL.
I accept the evidence of the acoustic experts. It is logical and with probably a modest degree of conservatism, but in light of the information which is available, and capable of being available, it is appropriate to adopt the ANL as 90 dB(A).
I just interpose to remind that Mr Mangion said that DOD sought that the Court adopt an ANL of 93. That number appears to be a maximum, at least on one occasion, of the F35A aircraft. It, however, is not the average maximum, but an absolute maximum, and it is not the number adopted by the acoustic experts nor is it a number derived in the method set out in the AS.
The acoustic experts were then asked to identify the measures which are required or would be required to meet the relevant indoor noise criteria. Mr Cooper described the usual steps to provide noise attenuation to a dwelling was double glazing of windows, insulation or an acoustic upgrade to a roof and a double ceiling. The latter means an extra layer of something such as plywood above the usual gyprock ceiling.
Mr Cooper conceded that whilst that would be readily required in his previous assumption of 86-87 dB(A), that the only change if it was 93 dB(A) would be an increase in thickness of the glazing of the windows but otherwise much the same. On the other hand, Mr Gross said that if the maximum was 93, one would be "starting to struggle" to provide appropriate attenuation, that is, it might be necessary to reduce the area of glazing and provide multiple layers of either glazing or roof insulation or roof protection or ceiling and was concerned that it may not in fact be reasonably practicable to do so.
The experts returned to the subject after the discussion about the ANL and it became apparent that the measures required for 86 and 87 referred to by Mr Cooper were the same if the ANL was adopted at 90 dB(A). Mr Gross in particular indicated that one assesses these matters in 5 dB(A) groupings and, that is, that in the 85 to 90 area similar attenuation measures are required, but in the 90 to 95, that is above 90, greater measures would be required.
In expressing that opinion, the experts agree that across the whole of the site the average maximum aircraft noise would be likely to vary only by one or two dB(A) and therefore there is no perceptible difference across the whole of the site. It followed that the same level of attenuation would be required across the whole of the site, that is both the conditionally acceptable and the unacceptable if the latter was approved.
I may observe that the acoustic experts did not say that as a matter of fact there is a perceptible difference in the general noise levels between a dwelling or a lot in the ANEF between 24 and 25 and the ANEF between 25 and the worst affected, which is, effectively, 25.5.
I will briefly summarise the submissions made by the representatives of the parties.
The applicant submitted that neither cl 7.5 of the PSLEP 2013 nor the AS prohibit development outside the ANEF 25 contour and that there can be compliance with cl 7.5(3)(c) having regard to the acoustic evidence. The applicant submitted that it is an existing urban area and that the flexibility in both the AS, and the PSDCP 2013 means that a merit assessment is available, and upon a merit assessment I would be satisfied that 90 is the ANL that the mitigation is achievable in a reasonable way and that, therefore, the whole of the subdivision is capable of being approved.
The applicant also referred to other development consents with particular characteristics suggesting comfort may be drawn from them in terms of approaching the issues in this case. However, as I indicated during submissions, I do not place any reliance upon what Council may or may not have done in the past because there's no suggestion that Council has abandoned any particular standard or step in the assessment of the development application.
The applicant also referred to a decision of the Court constituted by Commissioner O'Neill in Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108 where in a subdivision with proximity to the Gold Coast airport was considered and ultimately approved notwithstanding part of the proposed subdivision was in a contour in excess of ANEF 25.
One must remember that each case will be determined on its own facts and I am neither bound to follow a decision of a Commissioner nor to even take it into account. I observe that to the extent to which there are principles included, they can always be of assistance, but I will determine this case on my approach to the instruments and the evidence before me.

Consideration

The assessment logically commences at cl 7.5 of PSLEP 2013 as the Council rightly pointed out. The first observation to make is that the objectives of the clause identify that which the operative provisions of the clause seek to achieve. There is no part of the clause which requires express consideration of the objectives nor that the objectives need to be satisfied. One does not ignore the objectives, and they will assist with any questions of construction, and the whole of the clause is to be read as one, but in the way that the tail should not wag the dog, the objectives identify that which the operative provisions seek to achieve. I am plainly satisfied, as I indicated before, that the clause applies to the land because of the satisfaction of the criteria in subcl 7.5(2).
In terms of the mandatory considerations under subcl 7.5(3)(a), for the purpose of determining whether or not this subdivision is acceptable, I do assume that the outcome of the subdivision will be ultimately dwelling houses or other residential development and that there will be an increase in the number of dwellings or people affected by aircraft noise. To the extent that that provision asks the question, the answer is "yes".
The next subclause, subcl (3)(b), requires the consideration of the location of the development in relation to the criteria set out in table 2.1 of the AS. It is to be noted that the requirement is to consider that location in relation to those criteria but does not in the subclause itself identify what the outcome of that consideration is. I will return to that subclause. The only outcome determined by subcl (3) is that I must be satisfied that the development will meet the indoor desired sound levels or, in this case, I would need to be satisfied that future dwelling houses will meet that indoor design sound level.
As has been observed, the consideration of the location in the AS leads to the categorisation of the location as being unacceptable according to table 2.1. The observation from the application of subcl (b) in determining the location is that some of the lots are conditionally acceptable and some are unacceptable. There is no issue with the Council that those which are conditionally acceptable are capable of having the necessary attenuation treatment, so the balance of this discussion is logically concerned with those lots which are in the unacceptable category.
Attention must be given to note 4 in table 2.1. I accept that the note forms part of the table and falls for consideration by virtue of subcl (3)(b) of cl 7.5. As the note says, firstly, the standard "does not recommend development in unacceptable areas". It scarcely needs saying that the standard does not prohibit development but simply does not recommend it. The note seeks to identify some exceptions and the elements of those exceptions are where the planning authority determines that any development may be necessary within an existing built‑up area designated as unacceptable.
The elements of that are that the land is within an existing built up area, that land is designated as unacceptable and the planning authority determines that the relevant development may be necessary. Then if the criteria are met, the AS recommends that such development achieve the required ANR determined according to cl 3.2. I take that to mean that if, as far as the AS is concerned, those criteria for the exception are met then the requirement to attenuate the noise should be implemented.
The note then identifies that for residences and schools et cetera, the effect of aircraft noise on outdoor areas associated with the buildings should be considered. The latter seems to be a self‑evident proposition whilst at the same time the AS does not seek to impose any standards for outdoor areas associated with buildings such as residences or schools. I do note that the AS does anticipate that residences may fall within the exceptions identified in note 4.
I accept the planners' evidence which is in slightly different terms, that the land is within an existing built up area. The planners identified the criteria which led them to conclude the subdivision is what they described as infill development, but I take to mean it is within an existing built up area which is the language used in the AS. Their logic at application of the criteria is compelling in view of the zoning and the adjacent residential development.
The question then arises as to whether the planning authority determines that the development for subdivision may be necessary and that is where the experts departed. I interpose that it is for me to determine whether any development is necessary. In my mind, the answer to that question is to be found principally in the zoning of the land and in particular, the objectives of the zone.
Whilst it is well known that objectives in zones are not necessarily by virtue of their place in the instrument given more or less weight, one should look at the specific objectives of a zone to understand what is being promoted within the area of the zone.
The objectives to the R2 low density residential are, firstly "to provide for the housing needs of the community", that is, it is a provision which is the objective of the zone; an expression of seeking to provide housing for the community. It is plain that there are other land uses permissible within the zone.
The objective relating to other land uses is expressed in a different way, that is "to enable other land uses that provide facilities or services to meet the day to day needs of residents". That is, the objective is a form of permissible objective; that is to say it is enabling - an objective is to allow other uses provided they meet the day to day needs of residents.
The third objective is to protect and enhance the existing residential amenity and character of the area, which reinforces the primary goal of the zone to provide for housing needs.
The final objective relates to compatibility with the flood risk of the area and plays no role in the question which I am answering.
A consideration then of the objectives of the zone is that its goal is to provide for the housing needs of the community. It is not to the point, in my opinion, to say, well, could housing be provided elsewhere, is there an absolute urgent need for housing in this particular locality, is it going to be low cost as defined or otherwise? The question is what does the strategic planning provide, and does that answer the question posed in note 4 as to development that may be necessary. In my view, the fact of the matter is that that is the development which is encouraged, and so is necessary within the zone. The development for dwelling houses is consequent upon residential subdivision. (Emphasis added).
The necessary attenuation is according to the acoustic experts capable of being carried out, and I will return to that subject matter.
It would seem then that the subdivision of the whole of the site as proposed could be approved, including those in the area described as unacceptable in the AS if I was satisfied in accordance with subcl (c) that the indoor level could be achieved. Having regard to the operation of PSLEP 2013 and the AS, I should add that in the general consideration I note that the unacceptable land is at its highest or worst affected, effectively, at ANEF 25.5 and much of the building envelopes would be slightly below that.
That foregoing analysis however, does not take account of the PSDCP 2013. The PSDCP 2013, of course is a focal point of the assessment of the development application and is not to be ignored. The clause I have set out above, the relevant part of part B6, including the objectives and controls, in cl B6.A. It is important to consider the objectives of cl B6.A, which are to ensure development satisfies the requirements of the PSLEP 2013 and to ensure appropriate consideration is given to land burdened by aircraft noise.
Those two objectives are precisely the task required by cl 7.5 and so it is difficult to see how those objectives in themselves could add any more to the requirements of cl 7.5. Be that as it may, I referred to the provisions of cl 5.6(1) wherein the parties have taken different approaches to its construction.
As I previously indicated, there are three exceptions to what is described as "generally unacceptable" development in the unacceptable land zone, and none of those exceptions apply to a development of the subject lot. The exceptions are development on a vacant pre‑existing lot, the replacement of a pre‑existing dwelling and development in land zoned B7 Business Park.
I do not consider that the operation of cl B6.1 limits the exceptions to the development which may be carried out in the "unacceptable" zone when determined by the AS for two principal reasons. First the operation of a development control plan always attracts some degree of flexibility. Section 4.15(3A) of the EPA Act makes it plain, and I set out the subsection below. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards - (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
In a sense, in my view such a provision reflects the proper approach which has historically been taken to controls in a development control plan, in that if a development meets the objectives of the particular control then it may well be acceptable notwithstanding noncompliance with that control, be it numerical or otherwise. The question, in my view, for the Court is not whether the proposal fits within one of the defined exceptions, but whether the proposal meets the objectives of the clause concerning site acceptability.
The second reason is that if one adopts an exhaustive approach to construction then the provision has the potential to operate as a prohibition contrary to the provisions of the PSLEP 2013 which permits this form of development.
The matter though really turns more upon a proper approach to a development control plan rather than the particular construction of the words within cl B6.1. It follows then from the preceding analysis of the PSLEP 2013 and the AS that the objectives of cl 5.6A are met in that appropriate consideration has been given to the fact of the land being burdened by aircraft noise, including the location of the land in relation to the contours and that the development satisfies the requirements of PSLEP 2013 - that is either the whole of subcl 7.5(3), or probably more accurately cl 7.5(3)(c), the only requirement.
I should also however consider pt B6.B which relates to indoor noise. The provision which I have set out above is that logically development must satisfy the maximum internal sound levels which are reproduced from the AS in PSDCP 2013, but, more importantly or relevantly, the provision states that if there is a noise reduction required of greater than 35 dB(A) then it is not considered to be reasonable or practicable. I should restate that the adopted ANL for this purpose is 90 dB(A) and that the target, as it were, indoor noise level for sleeping is 50 dB(A) and so the reduction required is 40, logically that which is in excess of 35.
There is no assistance given by this provision as to how one approaches the question of reasonableness or practicality. It was submitted by the Council that there may well be a significant cost in carrying out the attenuation work and referred to such an observation in the AS. As a general statement that is undoubtedly true, and the silly example I referred to earlier, would be one such example. However, I must focus on the evidence which is in this case.
The acoustic evidence is that the attenuation required would be the same whether or not the ANL was 86 to 87 or the ANL was 90, and more particularly, that within the 85 to 90 grouping, the attenuation is the same. It must be observed that the Council accepts that in respect of the lots proposed in the 'conditionally acceptable' area that the attenuation is reasonable. The same attenuation is for the balance of the lots and it is difficult to see how that would of itself become unreasonable or impracticable in respect of the land considered to be 'unsuitable'.
The evidence from the planners does not provide any quantification or comparative quantification nor does the evidence from the acoustic experts suggest that that which is reasonable and practicable for the lots which the Council accepts can be approved is not also reasonable and practicable for those lots which are in the unacceptable contour band or zone.
I am therefore satisfied that the objective of the provision, which is that an undue burden is not placed upon a future landowner, is achieved by the identification of the attenuation measures by the two acoustic experts for the whole of the lots the subject of the subdivision.

Outdoor Areas

There is no specific control in PSDCP 2013 or the AS which relates to outdoor areas. The AS says that the impact on the outdoor areas should be considered, as it should be. The planners dealt with the issue, and I have adverted to that, but I would add from par 1.47 of the planners' joint report Mr Mead said the following: "1.47. In relation to the effect of noise on outdoor areas to future dwellings, it is my opinion that the impact of noise is likely sufficiently ameliorated by the siting and orientation of dwellings and by incorporating covering structures. This position would however would need to be tested with the acoustic experts. I do note that within the ANEF 25+ contour area, many houses exist in the locality and include outdoor open space. Similarly, large parkland and sporting facilities are provided in this contour to the east. It would appear from this that use of outdoor space is possible without significant concern. I have been provided with two affidavits by the applicant, from Ian Hamilton Lovell and Tracie-Lee Irvine, which support this position on use of outdoor open space without concern (attached at Annexure K). I note that the pattern of use of outdoor space for an individual resident would be determined by their tolerance to the pattern of noise impact. Further, it is recommended that conditions of consent be imposed requiring a Section 88B instrument to identify the noise source."
Ms Allen at par 1.53 of the joint report said the following: "1.53. There appears to be a lack of consideration of Note 4 of Table 2.1 of AS 2021-2015 on the effect of aircraft noise on outdoor areas associated with the future dwellings, which should be considered. Whilst the dwelling internally may be able to be attenuated to comply with the required indoor noise level, some of the outdoor areas may still be in the unacceptable area. High noise levels could lead to a negative social impact in terms of the noise 'annoyance' to future residents."
There is no contradiction directly by Ms Allen of what Mr Mead has said, but she observes the possibility of negative social impacts because of the noise annoyance. It is logical to understand that protection of some of the outdoor areas can be given, as Mr Mead says, and that conclusion was not contested.
It is right to say that in numerical terms the general noise affectation reflected by ANEF 24 or 24.5 to 25.5 is an increase and so there is a theoretical increase in noise between the land considered conditionally acceptable and the land considered unacceptable. However, I accept the evidence that that is not a perceptible difference on the ground, as it were, and, therefore, I accept Mr Mead's evidence that appropriate outdoor areas can be provided for dwellings in the proposed subdivision.

Public Interest

I have recorded the contention above and indicated what the planners have said about public interest. The Council submitted that weight should be given to the DOD submission and, in particular, the concern expressed by it that complaints may intensify or increase and lead to a curtailment of the operations of the RAAF facility. It has been observed in the evidence that there are a significant number of dwellings affected by airport noise, including some in excess of the 25 ANEF contour.
Given that there is a small number of dwellings, it is difficult to see how there can be any meaningful contribution or concern about that particular aspect of potential risk in this case. Public interest is best reflected by the orderly application of planning controls, and the analysis which I have undertaken in these reasons, in my opinion, encompasses, firstly, the public interest as particularised in the contentions of the Council and, secondly, public interest more generally.

Conditions

During the course of the hearing there was an exchange between the bench and the advocates as to a particular condition about which there had been an issue and which is reflective of the requirement for a s 88B instrument under the Conveyancing Act 1919 to be registered in due course.
It became apparent during the course of that exchange that there needs to be further consideration of that condition and it also needs to take account of the reasons that I have given. The condition should do two things, first it should identify as conditions those matters which are controlling the future activity on the site, including such matters as no access from Baluster Street, and there will be other elements which I invite the parties to consider.
Second, there should be required the registration of an instrument pursuant to s 88B of the Conveyancing Act 1919 which provides for the relevant easement disclosed on the plan of subdivision and any other restrictions which are to be provided as well as the restriction about the requirement for any residential dwelling to comply with the indoor design sound level in AS 2021:2015. That is the extent to which Council issues warnings when it issues a certificate for the purpose of a contract for sale is a matter for the Council and not a matter about which the Court can or should give directions.

Conclusion

For the preceding reasons it is my view that it is appropriate to grant development consent for the subdivision in the form for which consent is sought. It is however, necessary that the conditions be reconsidered and recast which must occur prior to the making of orders.
Therefore, I will make the following directions: 1. The parties are to confer and file within 14 days an agreed set of conditions reflective of these reasons, or if not agreed then their competing versions, together with any accompanying note from either party not to exceed one page; 2. I grant liberty to restore on 48 hours' notice by arrangement with the list manager.

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: 04 November 2021

At a glance

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Decision date

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Judgment (13 paragraphs)

Parties

Cases Cited (1)