Pearl Investment (Aust) Pty Ltd v Armidale Regional Council

Site context

1. The Subject Site has an area of 9,010 m2, and the New England Highway, a classified State road (HW9), is located to the east of the Subject Site, with a passing speed zone of 80 kph applicable in that area.
2. The land to the west and south of the Subject Site along Netherton Park Avenue and Link Road is zoned R1 General Residential.
3. The location of the Subject Site, located to the north of Armidale township and fronting both Link Road and the New England Highway is illustrated in the figure below.
4. A mound, referred to in the hearing as either an acoustic berm or acoustic mound, is located along the western margin of the Subject Site. It was agreed by the Parties that the acoustic mound: 1. was created through imposition of a condition of development consent associated with consent 197/92 which had approved the residential subdivision of lands to the west of the Subject Site; and 2. was required to mitigate potential noise impacts on the residential development to the west of the Subject Site from traffic using the New England Highway.
5. The Respondent had submitted in opening that: 1. the acoustic mound is located outside of the Site, on land to the west being Lot 2 DP 829599, Lot 5 DP 1146969 and the road reserve adjoining Netherton Park Avenue; 2. the condition of consent that had required construction of the mound could not be enforced against the current or future owners of Lot 2 P 829599 and Lot 5 DP 1146969 on which it is located; 3. given the mound is located on land over which the Applicant has no control, there is no basis to assume that the acoustic mound would remain in its current configuration for the purposes of assessing impacts of the Proposed Development; 4. the Applicant's Proposed Development should be assessed on the basis that there is no legal mechanism to require that the acoustic mound remain in place on Lot 2 or Lot 5 and there is no ongoing obligation on the owners of the lots to maintain the mound;
6. In its opening submissions, the Applicant stated that because a development consent would be required for the removal of the acoustic mound, it is unlikely that Council would approve such an application having regard to the provenance and reasons for creation of the mound, and the continuing need to mitigate noise impacts from vehicles using the New England Highway.

Notifications, consultation and objector submissions

1. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and of Armidale Dumaresq Development Control Plan 2012 (ADDCP), the Proposed Development was placed on public exhibition by the Respondent between 2 June 2021 to 27 June 2021. Thirty six individual submissions were received in response to the notification.
2. Three objectors, all residents of Netherton Park Avenue adjacent to western side of the Subject Site, provided oral submissions to the Court during the site view and the Parties tendered an agreed summary of the submissions at the hearing. Matters raised by the objectors focused on: 1. the compatibility of the Proposed Development with the RU4 zoning of the Subject Site; and 2. the potential visual and noise impacts that may arise should the Proposed Development be approved.
3. The Proposed Development had also been referred to: 1. Transport for NSW (TfNSW) as required under cl 2.121 of State Environmental Planning Policy (Transport and Infrastructure) 2021, and TfNSW had responded that it had not objection in relation to the Proposed Development; 2. the NSW Police, which also confirmed that it had no objection to the Proposed Development.

Contentions

1. At the commencement of the hearing the Parties advised that certain contentions in the appeal were resolved on the basis of the Applicant's amended plans and the joint reports of the expert planners as follows: 1. a contention concerning potential light spill impacts from the Proposed Development, which was resolved through amendments to the original application which restricted the hours of operation of the Proposed Development, and reduced the height of a pylon and signage; 2. a contention concerning the potential inclusion of a restaurant in the Proposed Development, noting that a restaurant is a prohibited use of the Subject Site, and which was resolved through the Applicant's removal of tables and chairs from the development.
2. The principle remaining contentions in the appeal concern the following matters: 1. whether the potential noise impacts, and potential impacts in relation to character, streetscape and visual amenity, are acceptable; 2. whether the Proposed Development and its related amenity impacts are compatible with surrounding land uses; and 3. whether satisfactory arrangements can be obtained for access to the Site, concerning the Council owned land, Lots 23 and 24 in DP 829599 4. noting the above, whether approval of the Proposed Development is in the public interest.

Environmental Planning and Assessment Act 1979

1. The Proposed Development is subject to the provisions of EP&A Act, and in particular: 1. section 4.15(1) which provides: 1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. section 4.15(3A), which provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application 1. section 4.17(1), which provides; (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)- (9) of this section or section 7.11, 7.12, 7.24 or 7.32.

Land and Environment Court Act 1979

1. While the proceedings in this appeal fall within class 1 of the Court's proceedings and are undertaken pursuant to the general provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act), the provisions of s 40 of the LEC Act are of particular relevance in this appeal (for reasons discussed below at [75(3)]). Those provisions are: 40 Additional powers of Court - provision of easements (1) This section applies if - (a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners). (2) The appellant may make an application to the Court for an order imposing an easement over land. (3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900. (4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. The Proposed Development is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) and in relation to the subject appeal: 1. the Parties have confirmed that the provisions of Chapter 3 in relation to hazardous or offensive development do not apply as the Proposed Development as it is not a potentially hazardous industry as defined under cl 3.2 of that SEPP; but 2. the Proposed Development is subject to the provisions of cl 4.6, and the Respondent has confirmed that the provisions of the clause are satisfied because the Subject Site is not identified as being potentially contaminated land on Council's land information system, and the historic use of the site is for extensive agriculture/grazing

State Environmental Planning Policy (Industry and Employment) 2021

1. Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E) regulates the installation of advertising and signage in a range of circumstances, and relevantly in relation to this appeal it includes: 1. an objective at s 3.1(1)(a)(i)(a) seeking to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area; and 2. the following provisions of cl 3.6 in respect of granting consent to signage: "A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied - (a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5. 1. assessment criteria in its Schedule 5 concerning: 1. the assessment of signage in relation to the character of the area which are: Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? 1. further criteria in relation to: 1. special areas; 2. views and vistas; 3. streetscapes, setting and landscape 4. site and building; 5. associated devices and logos with advertisements and advertising structures; 6. illumination; and 7. safety.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. Development on the Subject Site is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I), and relevantly for the current appeal: 1. the provisions of cl 2.119 concerning development with a frontage to a classified road apply to the Proposed Development, and subcl 2.119(2) requires that: "(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that - (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road." 1. the provisions of cl 2.122 concerning traffic generating development also apply to the Proposed Development, and section 2.122(4) requires that: "4) Before determining a development application for development to which this section applies, the consent authority must - (a) give written notice of the application to TfNSW within 7 days after the application is made, and (b) take into consideration - (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including - (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development." 1. the Respondent has confirmed that TfNSW has been notified of the Proposed Development as required under both ss 2.119 and 2.221 of SEPP T&I and has not raised any objection to the development, nor any matters for consideration by the consent authority.

Armidale Dumaresq Local Environmental Plan 2012

1. Development on the Subject Site is subject to the provisions of ADLEP, and the following provisions are of particular relevance in this appeal: 1. clause 2.3 in relation to zoning of land and under which the Subject Site is zoned RU4 Primary Production Small Lots and, in relation to which: 1. the Proposed Development is a permissible land use on the Subject Site; 2. the Parties agree, consistent with the advice of their planners, that following the deletion of a previously proposed restaurant as part of the service station, the provision of food and drink as part of the Proposed Development is an auxiliary use to the principal proposed use as a service station, and is permissible; 3. the objectives of the RU4 zone are: To enable sustainable primary industry and other compatible land uses. To encourage and promote diversity and employment opportunities in relation to primary industry enterprises; particularly those that require smaller lots or that are more intensive in nature. To minimise conflict between land uses within this zone and land uses within adjoining zones; 1. pursuant to subcl 2.3(2), the consent authority, or the Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; 1. clause 4.3 in relation to the height of buildings (HoB), and the provisions of which establish no HoB development standard for developments on the Subject Site; 2. clause 5.10 concerning heritage and in relation to which the Respondent raises no heritage contention in this appeal; 3. clause 6.1 concerning earthworks, and in relation to which the Respondent raises no contention in this appeal; 4. clause 6.3 concerning flood planning land and in relation to which there is no flood prone land identified on Council's flood mapping of the Subject Site; 5. clause 6.6 in relation to site access, and the Council presses a contention in this appeal in relation to the provisions of subcl 6.6(e) which provides as follows: "Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: … (e) suitable road access."

Armidale Dumaresq Development Control Plan 2012

1. Development on the Subject Site is subject to the provisions of ADDCP, and the following provisions of that plan are of relevance to this appeal: 1. The provisions of chapter 2.8 of ADDCP in relation to noise and which: 1. includes the following objectives: "O.1 To identify and guide design so that excessive noise impacts from noise-generating land uses are identified and appropriate mitigation strategies are applied. O.2 To ensure noise generating land uses do not unreasonably impact on the amenity of surrounding areas." 1. includes the following controls in relation to industrial and commercial development: "S.12 Noise from industrial and commercial development must be assessed in accordance with Council's POL 235 Environmental Noise Guidelines in Table 1 below to determine if an acoustic assessment is required. S.13 Electrical, mechanical or hydraulic equipment or plants adjacent to residential premises must not generate a noise level greater than 5dBA above ambient LA90 sound level at the property boundary at any time of the day." 1. chapter 2.10 in relation to signage, which: 1. includes the following objectives: "O.1 To protect areas and buildings, especially areas of heritage significance or special character, from the adverse impacts of intrusive signage and advertising material. O.2 To ensure signs are of a type, number, size, scale, character and location appropriate to the host premises and the locale. O.3 To ensure signs do not create visibility and safety hazards to road users and pedestrians." 1. includes the following control (4.9, S.11) in relation to the erection of pole or pylon signage such as is proposed by the Applicant as part of the Proposed Development and which requires that such a sign must: meet the general controls for signage; not project over any road alignment; have a maximum advertising area of 20m2 (ie 10m2 per side for a double-sided sign); have a maximum height above ground of 15m in B3 and B4 zones in Armidale Central Business District and 9m elsewhere. 1. chapter 6.1 which concerns the Link Road South Precinct, including the lot to the south at 9 Link Rd, and in relation to development along the adjoining New England Highway: 1. includes the following objectives in relation to the New England Highway: "O.1 To manage traffic flows and noise buffers for land proximal to the New England Highway. O.2 To minimise any adverse visual impact on views both to and from the New England Highway" 1. includes the following control of relevance in this appeal: "S.3 Any significant development of land with frontage to the New England Highway shall include an assessment of the visual appearance of the development from the highway and shall outline proposed measures to be incorporated into the development to minimise any adverse visual impact and integrate the appearance of the development with the surrounding landscape when viewed from the highway corridor and beyond."

Noise Policy for Industry

1. The Noise Policy for Industry (2017) (NPfI), published by the NSW Environment Protection Authority (EPA): 1. seeks to balance the need for industrial activity with the community's desire to minimise intrusive sounds; 2. sets assessment noise levels, consistent methods, and best practice measures to manage industrial noise, and is based on the latest scientific research regarding noise's health effects.
2. The purpose of the NPfI is relevantly set out as follows: 1. in Section 1: "Noise from industry … can result in adverse effects on surrounding residents if premises have not been designed to mitigate noise. Noise can interfere with daily activities including conversation, entertainment and studying and can result in increased annoyance and stress. Noise can also interfere with sleep. The World Health Organization (WHO, 2009) indicates that 'sleep is a biological necessity and disturbed sleep is associated with a number of adverse impacts on health'. The impacts of noise need to be managed to protect the amenity and wellbeing of local communities living near industry. " 1. in section 1.1: "The purpose of the policy is to ensure noise impacts associated with particular industrial developments are evaluated and managed in a consistent and transparent manner. It provides noise levels for assessing the potential impact of noise from industry and includes a framework for considering feasible and reasonable noise mitigation measures. The Environmental Planning and Assessment Act 1979 (EP&A Act) and the Protection of the Environment Operations Act 1997 (POEO Act) require that authorities examine and take into account matters affecting the environment when making decisions about development and activities. The policy also provides a procedure for the development of appropriate and achievable statutory noise limits and operational requirements for development consents and environment protection licences." 1. Section 1.6 of the NPfI explains the process for industrial noise management as consisting of the following steps: "The policy sets out a process for industrial noise management involving the following main steps: 1. Determining the project noise trigger levels for a development (Section 2); these are the benchmark levels above which noise management measures are required to be considered. They are derived by considering two factors: shorter-term intrusiveness due to changes in the noise environment (Section 2.3), and maintaining the noise amenity of an area (Section 2.4). Measurement of existing background levels, using procedures outlined in Fact Sheets A and B (this document), is required for this step. 2. Predicting or measuring the noise levels produced by the development (Section 3.3), having regard to the presence of annoying noise characteristics (Fact Sheet C) and meteorological effects such as temperature inversions and wind (Fact Sheet D). 3. Comparing the predicted or measured noise level with the project noise trigger level, and assessing impacts and the need for noise mitigation and management measures (Section 3.4). 4. Considering residual noise impacts, that is, noise levels that exceed the project noise trigger levels after the application of feasible and reasonable noise mitigation measures. This may involve balancing economic, social and environmental costs and benefits from the proposed development against the noise impacts, including consultation with the affected community where impacts are expected to be significant (Sections 3.2 and 4). 5. Setting statutory compliance levels that reflect the best achievable and agreed noise limits for the development (Section 5). 6. Monitoring and reporting environmental noise levels from the development (Section 7)."
3. Section 4 of the NPfI provides guidance in relation to determining the significance of residual noise impacts, and in particular:
4. Section 4.1 discusses residual noise impacts and notes that: "A residual noise impact may exist where the best-achievable noise level from a development, when assessed at a sensitive receiver location, remains above the project noise trigger levels. Residual noise impacts are identified after all source and pathway feasible and reasonable noise mitigation measures have been considered. The significance of the residual impact and the need to assess receiver-based treatment options may need to be considered as part of an authority's determination/approval process. As set out in Section 2, the project noise trigger level is the lowest value of the project intrusiveness or project amenity noise level after conversion to LAeq,15min, dB equivalent level. Determining the significance of any residual noise impact is an essential component of the noise assessment process, to ensure that effective and appropriate mitigation measures are taken in each case."
5. Section 4.2 provides a guide to the acceptability of residual noise impacts, and notes that: "Planning decisions for proposed developments take into account social, economic and environmental factors. Noise impact is one factor taken into account and decisions can be made that result in residual noise impacts (that is, noise levels above the project noise trigger level). In these cases, a consent may include an obligation on proponents to undertake noise mitigation at receiver locations. The types of receiver-based noise-control options are outlined in Section 3.4.3. Receiver treatment, including the extreme case of voluntary acquisition, is normally only applicable for isolated residences in rural areas. The purpose of this component of the policy is to identify the significance of the residual noise impact. Residual noise impacts are taken into account in decision-making processes in accordance with the requirements of the relevant legislation or process. As a general guide, where all source and pathway feasible and reasonable noise mitigation measures have been applied, the significance of residual noise levels (that is, noise levels above the project noise trigger level) will be considered, as outlined in Table 4.1. The significance of residual noise impacts should be addressed on a case-by-case basis. The guidance contained in Table 4.1 should not be applied to existing situations without proper consideration of the specific circumstances."
6. Table 4.1 of the NPfI provides as follows:
7. Further, Table 4.2 of the NPfI provides guidance in relation to mitigating potential noise impacts at various residual noise levels, as follows:

Resolution of contentions

1. The remaining contentions in the appeal were identified above (at [23]) and resolution of those contentions requires the Court to consider the following questions: 1. are the potential noise impacts of the Proposed Development acceptable? 2. are the potential impacts of the Proposed Development in relation to character, streetscape and visual acceptable? 3. can satisfactory arrangements be obtained for access to the Subject Site in relation to the use of Council owned land adjacent to the New England Highway and Link Road through Lots 23 and 24 in DP 829599? 4. is approval of the Proposed Development in the public interest?
2. The Court was assisted in its consideration of these questions by the Parties' experts, as follows: 1. the acoustic experts, Ms Hilary Pearce, for the Applicant, and Mr Stephen Gauld, for the Respondent, 2. the expert planners, Mr Wesley Wilson, for the Applicant, and Mr John Goodall, for the Respondent.

Are the potential noise impacts of the Proposed Development acceptable?

1. The Respondent submitted in opening that the issues that remain to be determined concerned: 1. whether the impacts to surrounding properties, particularly in relation to the residences at 9 Link Road and on Netherton Park Avenue are acceptable, including whether all feasible and reasonable noise mitigation measures have been considered and/or applied; and 2. whether "intermittent noise" will occur, in which case a 5dB penalty should be applied to the calculations provided in the Applicant's Acoustic Assessment dated 10 June, exacerbating the significance of the noise impacts;
2. The Respondent also submitted that: 1. the acoustic experts both agree that: 1. the EPA's Noise Policy for Industry (NPfI) is the document that should inform the Court's decision-making concerning the Proposed Development; 2. when traffic generated by the Proposed Development is on the New England Highway or Link Road, it is the NSW Road Noise Policy that applies to noise generated by that traffic; 1. the mitigation measures proposed by the Applicant for 9 Link Road would be an unsatisfactory impost on that residential land, and the Court could not be satisfied that these measures would remain in place to mitigate the acoustic impacts of the Proposed Development in the long-term; 2. trucks drivers accessing the Proposed Development could not be relied upon to turn off refrigeration units when refuelling at night time, as proposed by the Applicant, relying on the evidence of its acoustic expert, and as recommended at section 5.3 of the Applicant's acoustic assessment; 3. the predicted noise levels at each receiver as presented in the Applicant's acoustic assessment, and particularly in relation to the residence at 9 Link Road, are based on the following assumptions: 1. the provision and retention of a 1.8m high fence to the northern boundary of 9 Link Road which should be lapped and capped or otherwise acoustically treated, and noting that these works are not proposed to form part of the Proposed Development; and 2. truck drivers refuelling at the service station between 5am and 7am would be required to turn off refrigeration units on their truck with this requirement advised to drivers via the installation of signage at fuel pumps; 1. the Court could not be satisfied that the measures referred to above would remain in place for the life of the Proposed Development and consequently, the Applicant's acoustic assessment had not assessed the unmitigated noise impacts on residences at 9 Link Road or on Netherton Park Avenue.
3. The Applicant had submitted that: 1. the owners of 9 Link Road had provided written confirmation accepting the Applicant's offer to carry out work on that lot and specifically: 1. to provide a timber paling fence, of lapped and capped form with galvanised steel posts and hardwood palings and rails, to a height of 1.8m; and 2. to provide alternative means of ventilation to the residence to achieve fresh air ventilation volumes in accordance with AS1668.2-2012, which could be achieved either by air-conditioning, including an outside air compressor, or by fresh air fans, and which would allow openable windows and doors to be closed should that be desired to mitigate external noise impacts; 1. the imposition of a condition of consent to give effect to these works was within power pursuant to section 4.17(1)(f) of the EP&A Act, which provides that a condition of development consent may be imposed if it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) of the EP&A Act that is applicable to the development of the subject of the consent; 2. there was no coincidence of ownership between a director of the Applicant and one of the owners of 9 Link Road, adding that, even if there was, this would not affect the independence of the independent expert's recommendations, or the integrity of the Applicant's offer and the acceptance of that offer; 3. the Applicant had proposed a draft condition of consent (proposed condition 61) requiring that the works be carried out at 9 Link Road prior to the issue of an occupation certificate and also requiring that the Applicant provide evidence of completion of those works with any application for an occupation certificate; 4. to the extent that the land at 9 Link Road is the subject of a development application seeking consent for a 21 lot residential subdivision, the acoustic experts had agreed that should that subdivision be approved, then the construction of dwellings on that site would require compliance with the indoor noise limits in SEPP T&I in any case, and so no noise impact issue arises from that subdivision proposal.
4. In relation to potential noise impacts on residences on Netherton Park Avenue, the Parties' experts concurred that, based on Ms Pearce's analysis and assessment of acoustic impacts: 1. these residences would experience an exceedance of between 8 and 9 dBA during the morning hours of 5am and 7am which are defined as falling within the "night period" for acoustic assessment; and 2. under the guidance provided in Table 4.1 of the NPfI (see above at [36]), this level of noise impact would be considered a moderate to significant impact on the amenity of those residences.
5. However, the acoustic experts differed in their assessment of the significance of the potential noise impacts on residences on Netherton Park Avenue, as follows: 1. Ms Pearce said that in her opinion there was no reason for the Applicant to propose mitigation measures for homes along Netherton Park Avenue because: 1. the Applicant had already agreed to implement all reasonable and feasible measures to mitigate noise impacts consistent with the requirements of the NPfI; 2. these residences already experience an 8 to 9 dBA exceedance in relation to the criteria for amenity assessment during the night period; and 3. as the predicted levels of noise amenity impact due to the Proposed Development are equal to, and so no greater than, the current levels of amenity disturbance experienced by these residences, no residence would experience a difference between the current circumstances and those that would be experienced should the Proposed Development be approved; and 4. given that the Proposed Development would not give rise to any change in the circumstances of residences in Netherton Park Avenue, no action should be required of the Applicant to mitigate potential noise impacts on those residences. 1. Mr Gauld stated that: 1. he agreed with Ms Pearce that: 1. residences on Netherton Park Avenue would experience a moderate level of amenity noise impact as a consequence of the Proposed Development; and 2. the 8 to 9 dBA exceedance against the amenity noise criteria in the NPfI did equate to the level of noise disturbance currently experienced at those residences; 1. he disagreed with Ms Pearce that there should be no noise mitigation measures offered to the residents of Netherton Park Avenue because: 1. although the estimated impact on amenity is quantitatively the same as currently experienced at those residences, the noise exceedance experienced at Netherton Park residences would be qualitatively different given the differences in the origin of that noise.
6. In their oral evidence at the hearing, the Parties' acoustic experts agreed that the NPfI, which they had agreed was the correct basis for assessment of noise impacts, is a quantitatively based tool and does not make recommendations based on qualitatively different noise impacts.
7. In relation to the question of assessing qualitatively distinct noise impacts, Mr Gauld: 1. noted that section C1 of the NPfI stated that: "where a noise source contains certain characteristics, such as tonality, intermittency, irregularity or dominant low-frequency content, there is evidence to suggest that it can cause greater annoyance than other noise at the same noise level." 1. opined that the Proposed Development would generate intermittent noise, as defined within section C1 of the NPfI as follows: "Intermittent noise: noise where the level suddenly drops/increases several times during the assessment period, with a noticeable change in source noise level of at least 5 dB(A); for example, equipment cycling on and off. The intermittency correction is not intended to be applied to changes in noise level due to meteorology." 1. stated that the source of the intermittent noise would be the turning off and on of refrigeration units on trucks as being required under Ms Pearce's noise assessment for the Proposed Development to comply with NPfI criteria for acceptability of potential noise impacts; and 2. confirmed: 1. his understanding that under the NPfI, intermittent noise is subjectively assessed, and its assessment should be assisted with measurement to gauge the extent of change in noise level; and 2. his opinion that refrigeration units turning off and then on during refilling represented noticeable and sudden change in a noise source in a manner consistent with equipment cycling off and on.
8. In response to the points raised by Mr Gauld, the Applicant's acoustic expert, Ms Pearce, said that the turning off and on of the refrigeration units on trucks was not an intermittent noise because: 1. the off/on change in noise source was not repeated several times, and 2. the noise source was not consistent with the NPfI exemplar of it being a noise arising from equipment cycling on and off.
9. In their submissions in closing: 1. the Respondent, relying on the evidence of its expert, Mr Gauld, said that: 1. the qualitative change in noise source arising from the turning off and on of the truck refrigeration units ought to be assessed as giving rise to an intermittent noise that required the Applicant to provide further mitigation measures for the residences on Netherton Park Avenue; 2. consistent with the planning principles articulated in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315, it was: 1. unlikely that truck drivers would turn off refrigeration units on trucks; and 2. unlikely or unreasonable in the circumstances of the case that drivers would act in the manner required by the Applicant's proposed plan of management see in respect of a plan of management. 1. if signage requiring refrigeration units to be turned off is not observed, or ignored, there is no other mechanism proposed that would ensure that truck drivers will turn off refrigeration units; and 1. the Applicant, relying on the evidence of its acoustic expert, Ms Pearce, said that the turning off and then on of the truck refrigeration units during refilling was not an intermittent noise, and because noise levels experienced by residences on Netherton Park Avenue would be consistent with the current situation, no further mitigation measures ought to be required of the Applicant, beyond those to which it had agreed in respect of 9 Link Road.
10. Having considered the submissions of the Parties and the evidence of the experts, I have concluded as follows: 1. the Applicant's noise assessment has been undertaken in a manner consistent with the guidance provided by the NPfI, which the Parties' experts agree is the appropriate basis for assessment of potential noise impacts associated with the Proposed Development; 2. I accept the evidence of the Parties' experts' that the imposition of a condition requiring the Applicant to complete the noise mitigation works agreed to, and accepted by, the owners at 9 Link Road is sufficient to mitigate all potential noise impacts from the Proposed Development on that property; 3. I am satisfied that the potential noise impacts of the Proposed Development do not provide a reason for refusal of the Applicant's development application; 4. I agree with the Applicant and its expert, Ms Pearce, that the turning off and on of the truck refrigeration units during refuelling, proposed between the hours of 5am and 7am, is not an intermittent noise for the purposes of the NPfI because: 1. each operation is undertaken once, and not several times as defined under the NPfI; 2. the noise source is not consistent with the NPfI exemplar of an intermittent noise being a noise arising from equipment cycling on and off, for which, in my assessment, a better example might be an automated air conditioning unit operating to maintain a constant temperature throughout the night. 1. I am satisfied that the Applicant's plan of management requiring drivers to turn off refrigeration units between 5am and 7am is acceptable, and the expectation that drivers will comply with signage requiring this action is reasonable, including for the reason that, as noted by the Respondent, non-compliance would be an offence under cl 9 of the Protection of the Environment Operations (Noise Control) Regulation 2017. 2. I am satisfied that no further noise mitigation measures should be imposed on the Applicant in respect of properties along Netherton Park Avenue for the reasons provided by its expert, Ms Pearce, (see above at [44(1)]) which I adopt.
11. Finally, I am satisfied that the Applicant's Proposed Development, which has included an acoustic assessment undertaken in a manner consistent with the guidance within the NPfI, achieves the objectives of chapter 2.8 of ADDCP and: 1. excessive noise impacts from the Applicant's Proposed Development have been identified, and appropriate mitigation strategies are applied, and; 2. the Proposed Development, which is a noise generating land use, will not unreasonably impact on the amenity of areas surrounding the Subject Site.

Are the potential impacts of the Proposed Development in relation to character, streetscape and visual acceptable?

1. The Respondent had contended that the Applicant's proposed pylon sign and its acoustic wall to the west of the site were incompatible with the character of the area in which the Subject Site is located, and would have potential adverse streetscape and visual impacts, most significantly in relation to the adjacent residential lands on Link Road and Netherton Park Road.
2. In particular, the Respondent: 1. had contended that the Proposed Development was incompatible use of the Subject Site given its proximity to the residential R1 zoned land to its west and south; 2. drew the Court's attention to the provisions of: 1. cl 2.3(2) of ADLEP (see above at [29(1)(d)]) and the objectives of the RU4 zoning of the Subject Site (see above at [29]) which, inter alia, seek: 1. to enable compatible land uses; and 2. to minimise conflict between land uses within the RU4 zone and land uses within adjoining zones. 1. section 3.6 of SEPP I&E concerning the grant of consent to signage (see above (at [27(2)]); 2. chapters 2.10 and 6.1 of ADDCP (see above at ([30(2)] and [30(3)]), which, inter alia, have the following objectives: 1. to protect areas and buildings, especially areas of heritage significance or special character, from the adverse impacts of intrusive signage and advertising material. 2. to ensure signs are of a type, number, size, scale, character and location appropriate to the host premises and the locale. 3. to minimise any adverse visual impact on views both to and from the New England Highway.
3. I will first consider the acceptability of the Applicant's proposed pylon sign, and then consider the issues related to the proposed acoustic wall.

Is the Applicant's proposed pylon sign acceptable?

1. The Proposed Development as it now comes before the Court has limited the number of pylon signs associated with the Proposed Development to a single sign with its height reduced from 12m to 8m.
2. The Applicant's plans at the commencement of the hearing proposed that the sign should be located at the south east corner of the Subject Site, near to the intersection of Link Road and the New England Highway.
3. Following the site view undertaken at the commencement of the hearing, and in response to concerns expressed by the Respondent's expert planner, Mr Goodall, the Applicant had indicated that: 1. the pylon sign could be located at the north east corner of the Subject Site, noting that this position was further from residences in Netherton Park Avenue and Link Road, and was at a lower elevation thus assisting to reduce its potential visual impacts from adjacent residences; and 2. it would accept the imposition of a condition of consent requiring the relocation of the single pylon sign from the corner of the Subject Site adjacent to the intersection of the New England Highway and Link Road to a location at the north east of the Subject Site, as had been proposed in the Applicant's original development application on 26 April 2022;
4. During the hearing, the Respondent's expert planner, Mr Goodall, agreed with the Applicant that the proposed pylon sign would: 1. be located at a distance of some 100m from the lot at 9 Link Road; and 2. not have an impact on the visual catchment of the New England Highway;
5. However, Mr Goodall said that: 1. a part of the pylon sign may be within the visual catchment of the property at 9 Link Road, notwithstanding the presence of the 1.8m high lapped and capped fence that the Applicant had agreed to install at the boundary of that lot; 2. he was unable to confirm whether or not the sign would be visible from residences within a future subdivision of that 9 Link Road lot, noting that an application lodged with Council for subdivision of that land had yet to be determined by Council.
6. The Applicant's expert planner, Mr Wilson, stated during the hearing that: 1. while the top of the pylon sign may be visible from certain points on Netherton Park Avenue, it would be located at some 80m from those residences; 2. the Applicant has proposed that, given the operating times of the Proposed Development, the sign would not be illuminated after 10pm; 3. while the pylon sign would be visible from lands to the east of the New England Highway on Rangeview Road and Stoney Ridge Road, these areas are located at some 80m to 100m from the proposed sign and are zoned for rural purposes and so do not have a primary residential use.
7. Having considered the submissions of the Parties and the evidence of the Parties' planning experts, I am satisfied that the Applicant's proposed pylon sign at its amended location at the north east corner of the Subject Site, is acceptable from the perspectives of character compatibility, visual and streetscape impact, noting that: 1. the Subject Site is on the New England Highway, and the presence of a service station sign on the Subject Site in its proposed location would not be out of character within the environment of the highway; 2. the character of the area is heterogenous, containing a mix of residential, light industrial (agri-business and products) and it includes signage including in relation to agricultural uses and a former motel further north on the highway; 3. the Subject Site is zoned RU4 and the possible presence of a service station, which is a permissible use of the land, should not be unanticipated on the Subject Site; 4. the Parties have agreed that a condition of consent requiring that the pylon be located at the north east corner of the Subject Site should be imposed with any grant of consent.

Is the Applicant's proposed acoustic wall acceptable in relation to potential character, visual and streetscape impacts?

1. As noted above (at [4(3)]), the Applicant has proposed the installation of a 4.5m high acoustic wall along the western edge of the Subject Site for the purpose of mitigating potential acoustic impacts of the Proposed Development.
2. The Applicant has also proposed that landscaping would be provided to screen the acoustic wall and this would include, but is not limited to, the planting of 67 Viburnum tinus plants, each of 7m height and located in the 3m gap between the 4.5 m acoustic wall and the western boundary of the Subject Site.
3. The Applicant has also proposed a draft condition (proposed condition 56) that would require the approved landscaping to be maintained in accordance with the Applicant's Vegetation Management Plan tendered as evidence at the hearing.
4. The Respondent had submitted that: 1. section 3.6 of SEPP I&E (see above at [27(2)]) requires that the consent authority, or the Court on appeal, must be satisfied that the proposed pylon sign is compatible with the desired amenity and visual character of the area, as required by section 3.1(1)(a); 2. the Applicant is not entitled to rely on the retention of the existing acoustic mound to the west of the Subject Site to provide mitigation to the potential impacts of the acoustic wall within the visual catchment of residences on Netherton Park Avenue; 3. the Applicant's proposed planting of 67 Viburnum tinus plants would not provide adequate mitigation to the potential visual impacts of the proposed acoustic wall; 4. even if the mitigation of potential visual impacts were accepted on the basis that the planting of at least 67 trees was acceptable in the short term, it could not be assumed that the trees would survive into the long terms and, as such, in due course residences on Netherton Park Avenue would be subject to unacceptable visual impacts from the acoustic wall.
5. The Applicant submitted that: 1. it agreed that the presence of the acoustic mound to the west of the Subject Site could not be assured into the long term; 2. notwithstanding that acknowledgement, the Parties had agreed, consistent with the evidence of their expert planners, that removal of the wall would require a development application to be lodged, assessed, and approved, and that such a circumstance was unlikely given that the mound has been created by a condition of consent linked to the subdivision of land on Netherton Park Avenue, for the purpose of mitigating noise from the New England Highway; 3. even if the mound were removed, the proposed landscaping along the western side of the proposed acoustic wall would provide adequate mitigation to potential visual impacts; 4. the Applicant had agreed that the landscaping works would be maintained consistent with its vegetation management plan (VMP); and 5. the Applicant had agreed to the imposition of a condition of consent requiring that the landscaping works are to be maintained consistent with its VMP, and it would be unreasonable to assume non-compliance with that condition of consent; 6. the Applicant had also provided that the design of the acoustic wall would include an access from the eastern side of the proposed acoustic wall to its western side for the purpose of landscape maintenance.
6. The Respondent's planner, Mr Goodall, provided in his joint expert report prepared with Mr Wilson, that the proposed acoustic was excessive in its scale and would be visually dominant in the locality, noting that the wall had a proposed total length of some 137m.
7. The Applicant's expert planner, Mr Wilson, agreed in evidence that the acoustic wall would be visually intrusive if the acoustic mound to the west of the Subject Site were removed until such time as the landscaping proposed reached some level of maturity and screened the wall.
8. In response to questions from the Respondent, Mr Wilson added that: 1. while the acoustic wall would create a visual impact in the absence of the mound, the distance of the wall from residences on Netherton Park Avenue, which he estimated to be around 30m, would provide some mitigation to those potential impacts; and 2. the Applicant's offer to provide the planting of 67 trees along the western side of the acoustic wall, and to maintain these in time, was a critical part of the strategy to mitigate the potential impacts of the acoustic wall.
9. I have considered the submissions of the Parties and evidence of the Parties' expert planners, along with my own assessment of the Subject Site and its location gained through the site view undertaken with the Parties, and I have concluded that the Applicant's proposed acoustic wall is acceptable in relation to its potential character, visual and streetscape impacts because: 1. the Applicant's proposed planting of 67 Viburnum tinus plants, each of 7m height and located in the 3m gap between the 4.5 m acoustic wall and the western boundary of the Subject Site, would adequately mitigate the potential visual impacts of the acoustic wall in circumstances where the existing acoustic mound were to be removed; 2. the presence of a wall or barrier at rear of the service station boundary of the Proposed Development, would not, in my assessment, give rise to any unacceptable character, visual or streetscape impacts from the perspective of the New England Highway, and surrounding land uses to the east of the Subject Site;

Conclusions regarding potential character, visual and streetscape impacts

1. On the basis of my findings above (at [60] and [69]), I am satisfied that: 1. having had regard to the objectives of the RU4 zoning of the Subject Site: 1. the Proposed Development is a compatible land use of the Subject Site; 2. the Applicant has mitigated the potential noise, character, visual and streetscape impacts of the proposed Development; and 3. the risk of conflict between the Proposed Development which will be located on RU4 zoned land and land uses within adjoining zones, most particularly the land zoned R1 General Residential has been minimised. 1. the Applicant's proposed signage: 1. is compatible with the desired amenity and visual character of an area (for reasons provided above (at [69]); 2. is consistent with the objectives of Chapter 3 of the SEPP I&E and the application has been assessed in a manner consistent with the requirements of Schedule 5 of SEPP I&E, in particular in relation to character, which was the matter in contention in the appeal, as required under cl 3.6 of SEPP I&E; 3. is consistent with the provisions of chapters 2.10 and 6.1 of ADDCP because the Applicant has: 1. protected the adjacent R1 zoned lands and residences within that zone adjacent to the Subject Site from the adverse impacts of the Applicant's proposed pylon signage; and 2. reduced the number and size of its proposed signage so that it is appropriately located on the Subject Site and has mitigated any potential impacts on adjacent residential land; 1. has minimised any adverse visual impact on views both to and from the New England Highway through its reduction of the size of the proposed sign and limiting hours of operation during which the sign would be illuminated.
2. Consequently, I am satisfied that the potential impacts of the Proposed Development in relation to character, streetscape and visual are acceptable.
3. Finally, while not relying on the presence of the existing acoustic mound to mitigate potential visual impacts of the Applicant's proposed acoustic wall, I note that: 1. the mound is currently in place and, through the commendable efforts of community members, is well vegetated; 2. the mound does provide, consistent with its intent under the consent that required its construction, mitigation to the residences of Netherton Park Avenue, and 9 Link Road, in relation to potential noise and visual impacts from traffic on the New England Highway; 3. any proposal to remove the mound would need to be for a legitimate planning purpose and would require a development application that would be subject to the normal assessment processes, including the views of residents as part of the public interest.

Can satisfactory arrangements be obtained for access to the Site in relation to the use of Council owned land adjacent to the New England Highway through Lots 23 and 24 in DP 829599?

1. As identified above (at [8]) the Proposed Development requires access across Council owned land through Lots 23 and 24 in DP 829599 which border the Subject Site in order for vehicles to enter and exit the proposed service station and facilities.
2. The Applicant has not secured and provided owners consent from Council for the use of that land in relation to the Proposed Development.
3. At the hearing, the Applicant submitted that: 1. Lots 23 and 24 in DP 829599 are: 1. zoned RU4, consistent with the zoning of the Subject Site; 2. are classified by Council as operational land, and there is no impediment by reason of their classification to the imposition of an easement for the purposes of facilitating access to the New England Highway across those lots. 1. the access required across those lots might be characterised as being for the purpose of a road, which is a use of land permitted without consent on lands zoned RU4; 2. if the Court determines that consent, subject to conditions, should be granted to the Applicant's development application then prior to making final orders in the appeal the Applicant should be provided the opportunity to make an application under s 40 of the LEC Act (see above at [25]) for easements over Lots 23 and 24 in DP 829599.
4. The Respondent had also observed that the Court may also act to resolve this matter utilising the powers granted to the Court on appeal under s 39(2) of the LEC Act which provides that: "In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."
5. The Parties agree that, as this is a jurisdictional matter, if the Court having considered all other merit and jurisdictional matters is minded to uphold the appeal, and concludes that conditional consent should be granted to the Applicant's Proposed Development, the Court should make preliminary findings to this effect, and make directions requiring the Parties to resolve matters concerning the grant of easements across the relevant lots to facilitate the Court making lawful final orders in the appeal.
6. I agree with, and adopt, the Parties' proposed approach in relation to resolving this final matter (see below at [100] in relation to directions made to facilitate disposal of the appeal).

Conditions of consent

1. During the hearing the Parties tendered into evidence their respective proposed draft conditions of consent, including a set of amended conditions from the Respondent.
2. At the conclusion of the hearing, the Court directed the Parties to review their respective conditions in the light of agreements between experts and concessions made by the Parties, and to file, to the extent possible, agreed conditions along with submissions in relation to conditions that remained in dispute.
3. The Parties have complied with this direction and have provided proposed draft conditions of consent that are agreed but for seven points, concerning the following conditions: 1. Part A, condition 1 - the Applicant opposes the Respondent's proposed deferred commencement condition; 2. Condition 34B - the Applicant opposes a requirement for the final form of Exhibit M (the Applicant's draft VMP), to be approved by the Council's General Manager or his delegate; 3. Condition 36 - the Applicant opposes the insertion of the second paragraph of the condition, requiring control of offensive noise in relation to certain identified circumstances; 4. Condition 50B - the Applicant seeks that the words, 'The condition operates while ever the existing dwelling at 9 Link Road is used for residential purposes' form part of the condition. The Respondent seeks that those words not be added to the condition; 5. Condition 56 - the Applicant opposes a requirement for landscaping to be maintained to the satisfaction of the Manager Development & Regulatory Services, Armidale Regional Council; 6. Condition 60 - the Applicant submitted that it is opposed use of the term "vehicle manoeuvring", in this condition, notwithstanding that the words are included in the Applicant's proposed conditions; and 7. Condition 61 - the Applicant opposes the insertion of the condition.
4. These differences in proposed conditions of consent are discussed and resolved ad seriatum:
5. First, in relation to the Respondent's proposed deferred commencement condition 1 in Part A: 1. the Respondent proposed that a condition in the following form should be imposed with any grant of consent as a deferred commencement condition: "This consent does not operate until the consent authority is satisfied that a covenant or restriction on title is registered on the title of Lot 100 DP 739751, known as 9 Link Road (property) requiring the following works to be maintained during the life of the service station development at 4 Link Road: (a) Erection of a boundary fence, from the corner of the property at the intersection of Link Road and the New England Highway to the eastern edge of the driveway on the property at the date of this consent, being approximately 55m in length, with the following specification: • 1.8m high lapped and capped, • Galvanised steel posts and, • Hardwood palings and rails (not pine). (b) Installation of a mechanical ventilation system to provide outside air to the existing dwelling or any other building in that approximate location on the property in conformity with Part 2 of AS 1668." 1. the Respondent submitted that the condition was required because, while the acoustic experts had reached agreement on a form of attenuation measures suitable to address potential impacts from the Proposed Development on the residence at 9 Link Road, the condition would ensure that the measures would be reasonably secured in perpetuity; 2. the Applicant submitted, inter alia, that: 1. as drafted, assuming registration of a covenant or restriction on the title of 9 Link Road, it would be the responsibility of the owners of 9 Link Road to comply with the proposed covenant or restriction requiring them to maintain a boundary fence and maintain a mechanical ventilation system during the life of the service station development at 4 Link Road; 2. this requirement exceeds the terms of the at-receiver treatments recommended by Ms Pearce and accepted by the owners of 9 Link Road namely: 1. the cost-free installation by the Applicant of a boundary fence prior to the issue of an occupation certificate for the service station; and 2. the cost-free installation by the Applicant of a mechanical ventilation system prior to the issue of an occupation certificate for the service station which the occupiers of 9 Link Road are at liberty to use or ignore; 1. any future owner of the existing dwelling at 9 Link Road will be aware of the works carried out, and of any service station that has obtained an occupation certificate; 2. it would be against self-interest to remove the at-receiver works, the use of one of which is discretionary in any event; 1. the Applicant also observed, and I agree, that: 1. at-receiver treatments to the existing dwelling at 9 Link Road were initially recommended by the Applicant's independent acoustic expert Ms Hilary Pearce; 2. it was agreed by Council's independent acoustic expert (in the joint expert report of the acoustic experts tendered as evidence at the hearing, and subsequently confirmed in the acoustic experts' oral evidence during the hearing, that all subsisting concerns in relation to 9 Link Road were resolved having regard to the 1 July 2022 acceptance by the owners of 9 Link Road of the offer to carry out the recommended at-receiver treatments; 3. a copy of the 1 July 2022 acceptance confirmation from the owners of 9 Link Road of the offer to carry out the recommended at-receiver treatments was provided to Council's solicitors before Council filed at Court its initial proposed/draft conditions of consent on 5 July 2022; 1. I have considered the submissions of the Parties and have concluded that the Respondent's proposed deferred commencement condition should not be imposed for the reasons proffered by the Applicant (see above at [(3)]) with which I agree, and which I adopt. 2. notwithstanding this conclusion, as submitted by the Applicant: 1. the owners of 9 Link Road have accepted, and the Applicant has agreed, that certain works required to mitigate potential noise impacts of the Proposed Development, should be undertaken in relation to the property at 9 Link Road; 2. as confirmed above (at [42(2)]), the imposition of a condition of consent to give effect to these works is within power pursuant to section 4.17(1)(f) of the EP&A Act, which provides that a condition of development consent may be imposed if it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) of the EP&A Act that is applicable to the development the subject of the consent; and 3. as noted above at [(3)(b)], these noise mitigation works, one of which would be at the discretion of the owner of 9 Link Road, should be undertaken prior to the issue of any occupation certificate for the Proposed Development. 1. I am satisfied that, noting the acceptance of an offer from the Applicant by the owners of 9 Link Road, the Applicant's proposed draft condition of consent 50B is in an acceptable form to ensure that the required noise mitigation works are competed prior to the issue of any occupation certificate. 2. I note the Respondent's submission that: 1. once the occupation certificate is issued, the noise mitigation works could be removed, not be maintained, and fall into disrepair, and there would be no recourse for the owner/occupier of 9 Link Road, despite the acknowledged acoustic impacts generated by this proposal; and 2. any future owner of 9 Link Road will not be aware of condition 50B and the attenuation measures required to mitigate the acoustic impacts of the Proposal; 1. I nevertheless agree with the Applicant that it would be against the self-interest of the owner of 9 Link Road to remove the at-receiver works and the status of those works during any future sale of the property would be a matter for the market to consider in arriving at an agreed price of sale for the property.
6. Secondly, in relation to Condition 34B concerning the Applicant's VMP: 1. the Respondent agreed to accept the Applicant's proposed conditions 34B(1) and 34B(2) such that the condition would read: "Prior to the issue of any Occupation Certificate, the Vegetation Management Plan prepared by JK's Garden Creations is to be amended as follows and submitted to Armidale Regional: 1. the species to be planted west of the acoustic wall are to be Elaeagnus angustifolia & Photinia robusta; 2. the plan is to provide for the ongoing maintenance of landscaping and plantings for the life of the development." 1. however, while the Applicant said that it would accept a requirement for the final form of the VMP to be approved by the Council's General Manager or his delegate, it: 1. opposed the Respondent's proposition that vegetation be maintained "to the satisfaction of the Manager Development & Regulatory Services, Armidale Regional Council", and 2. proposed that the Court should impose the condition in the form proffered by the Applicant above (at [(1)]). 1. having considered the submissions of the Parties, I agree with the Applicant that its proposed form of condition 34B should be imposed, as the condition is responsive to matters identified by the Respondent at the hearing as requiring amendment within the Applicant's draft VMP, and the condition requires that the Applicant to ensure ongoing maintenance of landscaping and plantings for the life of the development, and if dissatisfied with the Applicant's adherence to the condition, Council can initiate action to require compliance.
7. Thirdly, in relation to Condition 36, concerning the management of noise: 1. the Respondent has proposed the imposition of a proposed condition in the following terms: "Before the issue of an Occupation Certificate, a Noise Management Plan (NMP) must be prepared and implemented for the life of the development, to ensure appropriate on-site management practices are adopted at all times, to prevent any activities related to the land use resulting in any 'offensive noise' as defined by the Protection of the Environment Operations Act 1997. The NMP must address how any 'offensive noise' generated by the land use, including but not limited to patron behaviour and activity on the site and how any non-compliance by drivers of refrigerated vehicles to switch off the refrigeration units when entering the site prior to 7am on Monday to Saturday and prior to 8am on Sundays and Public Holidays, will be controlled by the applicant/landowner, as the responsible party for all on-site activity. All staff must be trained and made aware of the implementation of the NMP, with the Plan being regularly reviewed and updated to reflect best practice procedures. Additionally, the Plan must contain complaint management recording and response procedures to ensure that any complaints received are appropriately investigated and resolved. A copy of the NMP must be made available to Council Officers upon request." 1. the Applicant opposes the insertion of the second paragraph of the condition as proposed by the Respondent, concerning the control of offensive noise that may arise in relation to the requirement to turn off refrigeration units on trucks using the service station at certain hours each morning, on the following basis: 1. the acoustic experts had conferred in relation to the preparation of draft conditions and had not identified the need for the Respondent's proposed, additional, second paragraph; 2. patron behaviour had not been the subject of evidence before the Parties' acoustic experts during the hearing; 3. the terms of the original draft condition 36, without the Respondent's proposed second paragraph, as well as proposed condition 59 concerning, inter alia, pylon lighting and display notices were agreed between the Parties; 4. as already noted above (at [49(5)]), the provisions of cl 9 of the Protection of the Environment (Noise Control) Regulation 2017 already provided a sufficient incentive to truck drivers without the need for the addition of the Respondents proposed second paragraph; 5. the Court should assume, consistent with the comments of Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408 at [35], that: "it is irrelevant to enquire as to ….. whether the future owner/operator is unlikely in the future to act or carry out any approved use unlawfully." 1. it is reasonable to expect, and the Court would anticipate, that truck drivers would behave in a manner consistent with the provisions of the Applicant's noise management plan, which would be drafted on the Applicant's terms, in a manner consistent with the original form of condition 36 without the Respondents' proposed second paragraph; 1. the Applicant proposed that, in the alternative, and if the Court thought it helpful, the signage on pumps referred to in draft condition 59 could include a reference to the proximity of residential premises to strengthen the incentive offered to truck drivers to turn off their refrigeration units; 2. having considered the Parties' submissions, I have concluded that: 1. the agreed terms of proposed condition 36 require the Applicant to prepare a noise management plan (NMP) prior to the issue of an occupation certificate that would ensure, inter alia, appropriate on-site management practices are adopted at all times to prevent any activities related to the land use resulting in any 'offensive noise' as defined by the Protection of the Environment Operations Act 1997; 2. the agreed terms of condition 36 do not require that the NMP should be reviewed or approved by Council, prior to the issue of an occupation certificate. That is, while the Applicant's NMP would be anticipated to conform to the requirements of the consent, the issue of an occupation certificate would not be subject to the Council achieving a certain state of satisfaction with respect to Applicant's NMP; 3. while the Respondent's proposed second paragraph, including discussion, was not as tendered at the hearing, the requirements it proposes do go to certain matters discussed at the hearing, in particular the degree to which it was reasonable to anticipate that drivers would conform to the requirement to turn off any refrigeration units on their trucks while filling; 4. it would be reasonable, in my assessment, that, even without the direction provided by the Respondent's proposed second paragraph, the Applicant's NMP would, of necessity, address matters relating to patron behaviour and activity on the site including mechanisms proposed to ensure that drivers of refrigerated vehicles switch off their refrigeration units when entering the site prior to filling; 5. noting the points above (at [(a)] to [(d)]), as well as the Applicant's submissions, and recalling that I have already expressed satisfaction in relation to the acceptability of the noise mitigation measures proposed by the Applicant for reasons identified above at [49], I am satisfied that the Respondent's proposed second paragraph need not be imposed and the Applicant's form of that condition should be imposed; 6. I also accept the Applicant's invitation to impose a refined version of proposed condition 59 to include a reference to the proximity of residential premises to strengthen the incentive offered to truck drivers to turn off their refrigeration units.
8. Fourthly, in relation to proposed condition 50B concerning works to be undertaken to mitigate potential noise impacts on the residence at 9 Link Road: 1. the Respondent submits that a condition be imposed in the following form: "Prior to the issue of an occupation certificate, the applicant must carry out the following works at the property known as 9 Link Road: 1. Erection of a boundary fence, from the corner of the property at the intersection of Link Road and the New England Highway to the eastern edge of the existing driveway, being approximately 55 m in length, with the following specification: * 1.8m high lapped and capped, * Galvanised steel posts and, * Hardwood palings and rails (not pine). 2. Installation of a mechanical ventilation system to provide outside air to the dwelling in conformity with Part 2 of AS 1668. The applicant must provide the council with evidence and written confirmation from an appropriately qualified acoustic engineer certifying the completion of such works with any application for an occupation certificate" 1. the Applicant seeks that the following additional words form part of the condition: 'The condition operates while ever the existing dwelling at 9 Link Road is used for residential purposes' 1. The Respondent submits that those additional words should not be included because: 1. the effect of the Applicant's proposed inclusion is that, should the residence at 9 Link Road be vacant and temporarily unoccupied by a resident at any time that the Applicant seeks an occupation certificate, then the Applicant would not be required to undertake works specified in the condition; 2. once the occupation certificate is issued, there would be no residual obligation on the Applicant to complete the works should the residence be re-occupied; 1. in reply, the Applicant said that: 1. it was not in the interests of the Applicant to ignore the responsibilities imposed by proposed condition 50B and place in doubt the issue of an occupation certificate for the Proposed Development; and 2. in the alternative, the Court could consider, if necessary, amending the Applicant's proposed additional wording in favour of the following: "This condition does not operate if, prior to an application for or issue of an occupation certificate, the existing dwelling at 9 Link Road ceases to be capable of being occupied or used as a separate domicile; 1. having considered the Parties' submissions, I am satisfied that the condition as proposed by the Respondent should be retained, and the Applicant's proposed additional words, in either form, should not be included because: 1. the Applicant's proposed additional words, in either form, introduce, in my assessment, ambiguity as to the terms under which the noise mitigation measures agreed by the acoustic experts should be constructed; 2. the Parties' acoustic experts were clear in reaching agreement as to what measures were required, as a minimum, to mitigate potential noise impacts on the residence at 9 Link Road; and 3. the drafting of proposed condition 50B as proffered by the Respondent should not put in question the execution of the works required under that condition, which I assess would be the effect of the Respondent's wording were it adopted and imposed.
9. Fifthly, in relation to Condition 56 concerning vegetation maintenance: 1. the Applicant opposes a requirement for landscaping to be maintained to the satisfaction of the Manager Development & Regulatory Services, Armidale Regional Council; and 2. consistent with my conclusion above (at [84(3)]) in relation to the Applicant's VMP, I agree with the Applicant that it is unnecessary to require that the landscaping be maintained to that officer's satisfaction. 3. I am satisfied that: 1. through either the offices of its Manager Development & Regulatory Services or through some other entity, Council has the capacity to initiate compliance action should it be dissatisfied with the Applicant's maintenance of vegetation on the Subject Site, which the Applicant is compelled to undertake through imposition of the condition; and 2. the Applicant's version of proposed condition 56 should be imposed;
10. Sixthly, in relation to Condition 60 concerning vehicle manoeuvring in an "undeveloped northern area" of the Subject Site: 1. the Applicant submitted that it opposed inclusion of the words "vehicle manoeuvring" in this condition, notwithstanding the fact that these words were included in the Applicant's draft proposed conditions; 2. the Respondent submitted that if condition 60 did not prohibit vehicle manoeuvring, there would not be a condition to prevent the area being used as an informal pathway to exit the Proposed Development. Without the inclusion of the words 'manoeuvring', the condition does not serve its intended purpose of prohibiting the movement of vehicles on that area. It would only prohibit parking, loading/unloading and storage; and 3. in response to the Respondent's submission the Applicant said that it had unintentionally included the word 'manoeuvring' in its proposed draft conditions, but that the intent of its written submissions had been to seek consent such that vehicle manoeuvring was permitted in an emergency, and it proposed a modified version of the condition reflecting this intent; 4. I am satisfied that the Applicant's final amended proposed condition 60 is acceptable and should be imposed as it restricts vehicle manoeuvring in the identified area in the northern part of the Subject Site in all circumstances other than during an emergency, which I consider reasonable.
11. Seventhly, in relation to Condition 61 concerning the potential decommissioning of the service station: 1. the Respondent: 1. seeks the imposition of condition 61, in the following terms: "The service station is to be decommissioned to the satisfaction of Council and any noise attenuation wall required to be erected as part of the development, is to be demolished/removed from the site, once the use has ceased and/or becomes inactive for more than 12 months (or such other period as agreed with Council)". 1. Notes that its expert planner, Mr Goodall, gave evidence that the proposed acoustic barrier would be visually dominant in the locality; 2. proposes this condition to ensure that a visually intrusive element of the development is removed following the end of the proposed development's life; and 3. submits that it is not uncommon for such conditions to be imposed on visually intrusive elements of a development to ensure that once the development is no longer operational, the visual impact of that development, if no longer required, is removed; and 4. draws the Court's attention to the recent judgment of Dixon SC in Altomonte (Nominees) Pty Ltd v ib vogt GmbH on behalf of Sun Spot 4 Pty Ltd [2022] NSWLEC 1138 (referred to hereafter as the Altomonte case), in which a condition requiring rehabilitation within 18 months post cessation of operations of a site was granted consent in relation to a solar farm; 1. the Applicant opposes the insertion of the condition for reasons including that: 1. the consent sought for the Proposed Development is not time limited; 2. the condition was not part of draft conditions tendered by the Respondent as evidence at the hearing and was inserted only in the context of written submissions sought by the Court at the conclusion of the hearing; 3. the Proposed Condition was not the subject of a contention in the appeal, was not proposed on the basis of resolving a contention, and was not the subject of evidence on the hearing; 4. the proposed condition is uncertain in its terms, including that the meaning of "once the use has ceased and/or becomes inactive for more than 12 months (or such other period as agreed with Council)" is "vague and various"; 5. the condition ignores the outcome of the evaluation and determination of the Applicant's Proposed Development under ss 4.15 and 4.16 of the EP&A Act which had concluded that the visual intrusion of the wall was acceptable as part of the Proposed Development; and 6. proposed condition 61 in this appeal is distinguishable from the condition imposed in the Altomonte case which provided for the rehabilitation of that site in circumstances where the solar farm was decommissioned and all infrastructure removed; 1. having considered the submissions of the Parties, I agree with the Applicant's submission, for the reasons it provides, which I adopt. In particular, I agree that: 1. its terms are unclear and not supported by evidence at the hearing; 2. the Respondent's submissions seeking support for the condition express a primary concern in relation to the acoustic wall, but the terms of the condition are framed more broadly, requiring the Applicant to decommission the service station to the satisfaction of Council; and 3. as suggested by the Applicant, the terms of the proposed condition are unclear in relation to: 1. what decommissioning of the service station would involve, other than in relation to removal of the acoustic wall; and 2. what would be required of the Applicant in relation to the works required to satisfy the Council at some future point in time.

Site access to the New England Highway

1. As identified above (at [8]), the Proposed Development requires access across Council owned land adjacent to the Subject Site in order for vehicles to enter and exit the proposed service station and facilities.
2. As noted above (at [78]), I have agreed with the Parties' proposed approach in relation to resolving this matter.

Consideration of RU4 zone objectives

1. The provisions of cl 2.3(2) of ADLEP require that the consent authority, or the Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone to have regard to the zone objectives.
2. The Subject Site is zoned RU4 Primary Production Small Lots and the objectives of that zone were provided above (at [29(1)]).
3. Further to the points already noted above (at [70(1)]), I am satisfied that: 1. the Proposed Development is use of the Subject Site that is compatible with the area, noting the Subject Site's location fronting the New England Highway, and in relation to sustainable primary industry uses that are permissible within the zone and in surrounding area; and 2. notwithstanding that the Proposed Development would give rise to potential impacts, those impacts particularly in relation to land uses in adjoining zones, have been minimised, as required under the RU4 zone objectives.

Objector submissions

1. I have previously noted the concerns expressed by objectors during the site view undertaken at the commencement of the hearing, which were consistent with written submissions received by Council in response to notification of the Proposed Development.
2. I am satisfied that the Proposed Development as it now comes forward in this appeal, together with the imposition of proposed conditions, including those discussed above (at [79] to [89]), have satisfactorily addressed objector submissions in this appeal.

Conclusions

1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that approval of the Proposed Development, subject to conditions, is in the public interest, noting that: 1. for reasons provided above (at [49] and [50]), the potential noise impacts of the Proposed Development have been mitigated consistent with the requirements of the NPfI, and are acceptable; 2. the potential impacts of the Proposed Development in relation to character of the area, visual impacts and streetscape impacts have also been mitigated, for reasons provided above (at [70]), particularly through the reduction of the number of signs proposed under the development, and the location of the remaining pylon sign at the north east corner of the Subject Site; 3. matters relating to the Parties' differences concerning proposed draft conditions of consent have been resolved (see above (at [79] to [89]) such that final conditions of consent can be prepared to facilitate the making of final orders to dispose of the appeal; 4. for reasons provided above (at [96]), the submissions of objectors have been satisfactorily considered, addressed and resolved through amendments to the design of the Proposed Development; 5. as required under cl 2.3(2) of ADLEP, regard has been had to the objectives of the RU4 zoning of the Subject Site in determining that the Applicant's Proposed Development should be approved (see above at [92] to [94]); 6. the matters which the Court is required to consider under the provisions of s 4.15(1) of the EP&A Act have been considered and the Applicant's Proposed Development can be approved.
2. Notwithstanding this conclusion, and as noted above (at [77]), the Parties have agreed that, if the Court were minded to uphold the appeal, as is now the case, the Court should make preliminary findings to this effect, and direct that the Parties resolve matters concerning the grant of easements by Council across the relevant lots to facilitate the Court making lawful final orders.
3. I have agreed with the Parties (see above at [78]), and so make the following directions.

Directions

1. The Court directs: 1. the Parties to confer and confirm to the Court by no later than Monday 7 November 2022: 1. whether any further matters for consideration under the provisions of s 4.15(1) of the EP&A Act arise as a consequence of the Applicant's proposed use of Lots 23 and 24 in DP 829599, noting that neither Transport for NSW nor the Respondent Council had raised an objection to the proposed use, other than in relation to owners consent; and 2. their agreed mechanism and timeline for resolution of matters concerning the provision of access by the Applicant across Council owned lots; 1. the Parties are to prepare, and the Respondent is to file with the Court, final agreed conditions consistent with the findings of the Court in this appeal, by no later than midday on Monday 14 November 2022; 2. the matter is listed for a mention on Tuesday 15 November 2022 at 4:15pm by Teams; 3. if the Parties comply with the directions above at (1) and (2), the mention on Tuesday 15 November 2022 will be vacated, and further directions will be made to facilitate finalisation of the appeal through making final orders. …………………………..

Amendments 26 October 2022 - Slip Rule Amendment to para 53[5] - correction to parties referenced. 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: 26 October 2022