Ryan v Port Stephens Council

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr G Williams, solicitor SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr P Jayne, solicitor SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10613 of 2007 Mark Joseph Ryan and Diane Ryan v Port Stephens Council

JUDGMENT 1 COMMISSIONER: This an appeal against the refusal by Port Stephens Council (the council) of Development Application 16-2006-1258-2 for the erection of a dwelling and the consolidation of four lots into one lot at 198, 200, 202 and 204 Lemon Tree Passage Road, Salt Ash (the site).

2 The sole issue raised by the council was the likely impact of aircraft noise on the proposed dwelling. The site and surrounding area 3 The site comprises four separate lots being Lots 2, 3, 4 and 5 in DP 227579. The site has a northern street frontage of 79.053 m to Lemon Tree Passage Road, an eastern side boundary of 54.2 m. a western side boundary of 58.5 m and an irregular rear boundary to the mean high water mark of Tilligerry Creek. The total site area is 4181 sq m. It is currently vacant and generally flat with a few existing trees.

4 The properties to be east and west are used for residential purposes. An oyster farming operation is located nearby and adjoining Tilligerry Creek. The area is used predominantly for rural/residential purposes. The proposal 5 The proposal provides for the construction of a two-storey dwelling and detached garage and the consolidation of the existing four lots into one lot. Relevant planning controls 6 The site is zoned Rural 1(a) under Port Stephens Local Environmental Plan 2000 (LEP 2000). The proposed development is permissible with consent. Clause 12(1)(a)(iii) allows for the consolidation of allotments and cl 14(2)(a) provides for the erection of a dwelling house on land within the Rural 1(a) zone provided the allotment has an area of at least 4000 sq m.

7 Port Stephens Development Control Plan 2007 (DCP 2007) became effective on the 31 May 2007 and applies to the proposed development. Part B2.13 provides requirements for land affected by aircraft noise and specifically identifies appropriate land uses within the Australian Noise Exposure Forecast (ANEF) contours identified in Figure B2.2. The site falls between the 25 and 30 ANEF contour.

8 Australian Standard AS 2021-2000 Acoustics-Aircraft noise intrusion-Building siting and construction (AS 2021) is also relevant. 9 State Environmental Planning Policy No 71-Coastal Protection and Hunter Regional Environmental Plan 1989 also apply but are not relevant to the issue raised by the council. The evidence 10 A joint acoustical report was prepared by Mr Steve Brady for the applicant and Mr Ray Tumney for the council.

11 Three residents of Rookes Road objected in writing to the development on the grounds that the site should be preserved as natural land and not used for residential purposes although they did not provide their evidence on site. Aircraft noise 12 Salt Ash is approximately 8 km east of the Williamtown Airport but the site is not affected by noise from military aircraft using this airport. The site is however some 1.5 km south of the centre line of the military aircraft flight path for training exercises at the Salt Ash Weapons Range (SAWR). SAWR has an area of approximately 2800 ha and is used for air-surface gunnery and bombing practice and contains various target and support facilities.

13 The most recent predictions of military aircraft noise impacts on the region are found in Environmental Impact Statement - Introduction into Service of the Hawk Lead-In Fighter at RAAF Base Williamtown and Salt Ash Air Weapons Range - URS (2002) (the EIS). The EIS predicts the greatest noise impact in the vicinity of the site is approximately 89 dB(A) L max from FA-18 Hornets during 10° bombing attacks.

14 The Salt Ash Air Weapons Range 2012 ANEF Summary Report - GHD Pty Limited (2003) (the SAAWR Report) provides ANEF contours to facilitate land use planning for the areas in the vicinity of SAWR. The ANEF system is adopted by AS 2021 and identifies suitable land uses within the various ANEF zones. The ANEF contours in the SAAWR Report are adopted by DCP 2007. The ANEF contour computation is based on forecast movements and flight paths on an average basis, and takes into account the existing, and forecast air traffic control procedures at the airport, including preferred runways and flight paths for noise abatement purposes. Table 2.8 identifies the number of day flying operations that were conducted at SAWR between 1995 and 2000. The minimum number of days was 97 (1995) and the maximum number of days was 135 (1999). The average number of days was 115. The EIS indicates that night flights are generally limited in duration (60 to 90 minutes) and not at low altitude. 15 Mr Brady and Mr Tumney conducted independent noise monitoring at the site during standard operations at SAWR and agreed that the appropriate design noise level is 95 dB(A) Lmax based on their site measurements. Measured levels of aircraft noise over the survey periods showed that the noise level at the site during flying activities is 84 dB(A) LAeq. Based on observations of flying activities, this level of noise exposure may occur for up to 3 hours per day and as the allowable exposure at this noise level is in excess of 8 hours per day, the surveyed noise levels do not represent a risk to hearing. The site noise monitoring showed that noise exposure under a typical flying day would involve approximately 140 noise events. The duration of each event is approximately 15 to 20 seconds and the time between events is approximately 25 seconds. The high level noise events (above 90 dB(A) Lmax) occur during 10° application bombing and strafing with lower noise levels of around 85 dB(A) Lmax for other FA-18 activities. High noise level activities may occur continuously for approximately 20 minutes over a typical one hour session. Noise impacts 16 While Mr Brady and Mr Tumney agreed on a number of matters associated with aircraft noise however they disagreed on several key areas in relation to the proposed dwelling. These were: 1) whether DCP 2007 and AS 2021 allow the erection of a dwelling, 2) what is the appropriate design noise level for a dwelling, and 3) whether it is appropriate to control all noise impacts external to the dwelling .

DCP 2007 and AS 2021 Preliminary issue 17 As a preliminary issue, Mr Williams, for the applicant, submitted that little or no weight should be given to the provisions of DCP 2007 because of the inconsistent way in which the council has enforced its provisions. Five examples were provided where the council had approved, between 1998 and 2006, the construction of dwellings on land beyond the 25 ANEF contour. These approvals pre-date DCP 2007 and use the council's Policy-Aircraft Noise Exposure in Port Stephens (the Policy) for the assessment of the applications (with the exception of the 1988 approval). The Policy was adopted on 16 December 2003 and contained a similar requirement to DCP 2007 in that a "dwelling house" was not an acceptable form of development between the 25 and 30 ANEF contours. The Policy did however acknowledge the Draft EIS, SAAWR Report and AS 2021 as relevant documents. 18 The role of a development control plan is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning. 19 His Honour further states, at par 87, the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control plan. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

20 Without individually reviewing each of the examples provided by the applicant, the general approach to the assessment applications for the construction of dwellings beyond the 25 ANEF contour was to address the noise impacts of the dwelling location issue through dwelling design by incorporating noise reduction components into the building construction. The requirements in the Policy require an indoor design sound level of 60 dB(A) Lmax for the dwelling.

21 In this case, I am not satisfied that DCP 2007 should be given little or no weight as suggested by Mr Williams. Stockland identifies a number of matters that determine weight to be given to a development control plan. The consistency in which a development control plan has been applied is only one consideration. There can be no disagreement that DCP 2007 was the subject of appropriate consultation and its contents are clearly consistent with policy outcomes, such as the SAAWR Report and AS 2021. 22 Also, no examples were provided that showed that the council had not consistently applied the provisions of DCP 2007. The examples provided related to approvals that pre-date DCP 2007 although I acknowledge that the Policy has similar provisions in relation to the location of dwellings and the ANEF contours to that found within DCP 2007.

The requirements - DCP 2007 23 There was agreement that the site falls between the 25 and 30 ANEF contours. DCP 2007 identifies "Dwelling house" as "Unacceptable" development within this area. Figure B2.1 states if a development is defined as "Unacceptable", do not proceed with development except in special cases. Relevantly, Notes 1 and 2 are referred to and state: 1. Australian Standard 2021-2000 does not recommend development in unacceptable areas. However, where the planning authority determines that any development may be necessary within the existing built up areas (areas zoned residential) designated as unacceptable, it is recommended that such development should achieve the aircraft noise reduction (ANR) in accordance with Australian Standard 2021-2000.

2. No new development should take place in greenfield sites deemed unacceptable because such development may impact airport and weapon range operations. 24 Part B2.P30 of a DCP 2007 adopts the indoor design sound levels from the Table 3.3 of AS 2021 (see par 27).

The requirements - As 2021 25 Table 2.1 of AS 2021 identifies "house" as "Unacceptable" where the site is located in an area "Greater than 25 ANF". Clause 2.3.3 states: If from Table 2.1 the building 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, e.g. a hotel in the immediate vicinity of an aerodrome, refer to the notes to Table 2.1 26 Relevantly, Notes 4 and 5 state: 4.This standard does not recommend development in unacceptable areas. However, where the relevant planning authority determines that any development may be necessary within the existing built up areas designated as unacceptable, it is recommended that such development should achieve the required ANR according to Clause 3.2. For residences, schools, etc., the effect of aircraft noise on outdoor areas associated with the buildings should be considered in accordance with Australian Standard 2021-2000.

5. In no case should new development take place in greenfield sites deemed unacceptable because such development may impact airport operations. 27 Clause 3.2 provides noise reduction requirements and refers to Table 3.3. The indoor design sound level requirements for a house in Table 3.3 are: Sleeping areas, dedicated lounges - 50 dB(A) Other habitable spaces - 55 dB(A) Bathrooms, toilets, laundries - 60 dB(A) The evidence - Tumney 28 Mr Tumney states that DCP 2007 and AS 2021 are clear and unambiguous in that each clearly shows that a dwelling house between the 25 and 30 ANEF contours is not acceptable. He acknowledges that there are locations where it is difficult to apply Table 2.1 of AS 2021 to an existing land use that is already exposed to aircraft noise however cl 2.3.3 of AS 2021 clearly states that the construction of a proposed building would not normally be considered in an unacceptable area unless there is a community interest in doing so. In his opinion, the Rural 1(a) zone of the site can accommodate uses (other than a dwelling) that would be compatible with the area. Mr Tumney further states that he believes the site is in fact a greenfield site as there are no existing buildings on the site. Note 5 to Table 2.1 of AS 2021 therefore applies and new development should not take place.

The evidence - Brady 29 Mr Brady accepts that DCP 2007 and AS 2021 indicates that a dwelling house is not acceptable between the 25 and 30 ANEF contours however he relies on Note 4 of AS 2021 to support his view that a dwelling is acceptable in this location. Mr Brady is also of the view that the site cannot be classified as a greenfield site based on the definition in the Collins Dictionary of Environmental Science. In his opinion, the site is more appropriately described as being in a built-up area considering it is adjacent to existing residential development, a tennis court, a tar sealed road and a chicken farm opposite. Importantly, the site is adjacent to the 25 ANEF contour and well removed from the 30 ANEF contour. On this basis, the site could be regarded as equivalent to the 25 ANEF and not greater than 25 ANEF and "conditionally acceptable" under the requirements in both DCP 2007 and AS 2021.

Findings - is the location of the dwelling acceptable? 30 In balancing the evidence of Mr Brady and Mr Tumney, I am more inclined to accept the conclusion of Mr Brady for a number of reasons. Firstly, I agree that some consideration should be given to the location of the site immediately adjoining the 25 ANEF contour (see Attachment 1). The ANEF contours are not in question and clearly provide, through DCP 2007 and AS 2021, a practical approach to a difficult land use planning issue. This does not however mean that the suitable land uses for each ANEF zone should be blindly accepted. In real terms, noise does not instantly increase when an aircraft moves across the 25 ANEF contour towards the 30 ANEF contour. Some consideration should be given to the unavoidable imprecise movement of aircraft over the area notwithstanding the precise nature of the ANEF contours. 31 I have adopted a more flexible approach in this case only because of the close proximity of the proposed dwelling to the 25 ANEF contour. Clearly, the greater distance from the 25 ANEF contour towards the 30 ANEF contour, the greater impact of aircraft noise and the less suitable location for a dwelling.

32 I note that Part A1.11 of DCP 2007 provides the opportunity for the variation to a control within DCP 2007 subject to the submission of additional supporting information on consistency with the relevant principles of DCP 2007 and the provision of identifiable benefits for the community. Considering these matters, I am satisfied that the variation can be supported in this case as the impacts of noise from the operation of military aircraft are not likely to be materially different to a site, located some 100m to the east on the 25 ANEF contour. The use of the site for a dwelling also provides identifiable benefits in that land is not effectively sterilised. Although Mr Tumney suggested that the site could be used for some rural purposes, there was no evidence to suggest a particular rural purpose or range of purposes that would be suitable. Because of the size of the site and location amongst residential development, I am satisfied that a compatible rural use would be difficult to find. 33 Secondly, I do not accept that the site is appropriately categorised as a greenfield site. In the absence of any specific definition, I agree with Mr Brady that a greenfield site is more akin to an area of vacant land on the edge of an existing urban development that has been set aside for the expansion of the adjoining urban development. It suggests the opportunity for larger scale development and not the development of a single lot located amongst other developed land. Mr Brady refers to the site as being in a built-up area. It could also be described as an infill site being largely surrounded by residential development and compliant with the minimum lot area for the Rural 1(a) zone. A finding that the site is not a greenfields site provides some discretion to allow the erection of a dwelling where the proposed use is deemed "Unacceptable" in both DCP 2007 and AS 2021. In my view, this discretion should be used in this case to allow the proposed dwelling because of the residential and infill nature of the site. The discretion afforded by DCP 2007 and AS 2021 alone, however would not be a sufficient reason to approve the development application without the location of the site close to the 25 ANEF contour. 34 Thirdly, the evidence suggests that the proposed development does or can comply with the required design noise level for the dwelling found in cl 3.2 of AS 2021. This is addressed in more detail later in the following paragraphs. Appropriate design noise level for a dwelling 35 Mr Brady and Mr Tumney disagreed on the appropriate design noise level for the dwelling. Mr Brady maintained that the appropriate design level for a dwelling should be 60 dB(A) Lmax. This is consistent with the requirements in the Policy and the oral requirements of council staff for applications currently being prepared by Mr Brady.

36 Mr Tumney states that the appropriate design noise level is that required Part B2.P30 of DCP 2007 that adopts the indoor design sound levels from the Table 3.3 of AS 2021, being sleeping areas, dedicated lounges - 50 dB(A), other habitable spaces - 55 dB(A) and bathrooms, toilets, laundries - 60 dB(A). 37 On this issue, I agree with Mr Tumney. The 60 dB(A) Lmax contained in the Policy is no longer applicable and the design noise levels in Part B2.P30 of DCP 2007 should be adopted for the proposed dwelling, particularly considering the location adjoining the 25 ANEF contour.

38 There was also some disagreement between Mr Brady and Mr Tumney on whether the proposed dwelling satisfies the requirements in Part B2.P30 of DCP 2007. As I understand, there was no dispute that a dwelling could be designed to satisfy the requirements in DCP 2007 however there was no agreement at the time of the hearing that the proposed dwelling satisfied these requirements. In my view, this can be conveniently dealt with by way of a deferred commencement condition. The condition would require the dwelling design (or an alternate or modified design) to be certified by a practising acoustical engineer that the requirements in Part B2.P30 of DCP 2007 are achieved.

Noise impacts external to the dwelling 39 Mr Brady and Mr Tumney disagreed on the suitability of the site in relation to noise impacts external to the dwelling. Mr Brady maintained that it was not necessary for all areas external to the dwelling to be quarantined from noise impacts from aircraft. He states that a covered external courtyard area has been provided that satisfies the appropriate noise requirements and that it was unreasonable to expect all external areas, including the yard area, to be similarly protected from noise.

40 Mr Tumney accepts that the covered external courtyard area achieves the appropriate acoustic standard however he states that noise impacts from aircraft as still unacceptable and cannot be adequately controlled in areas outside the dwelling and covered courtyard area. The noise impact on these areas will have an adverse impact on the amenity of the future occupants. 41 On this matter I agree with Mr Brady. In my view, it would be unreasonable to expect all areas of the site to be protected from aircraft noise. I accept that the applicant has reasonably addressed the external use of the site for recreational purposes associated with the residential use through the construction of an acoustically treated covered outdoor recreational area. Precedent 42 Precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, in this case, I am satisfied that the particular characteristics of this proposal, such as the relationship with the 25 ANF contour, the dwelling design, its residential location and infill context are fundamental matters in a finding that the location is suitable for a new dwelling. As such the approval could not be reasonably used as a precedent for the construction of a dwelling on other sites subject to aircraft noise. Orders 43 As the conditions were amended after the hearing was completed, the parties were provided with the findings and conditions on 20 February 2008 and given the opportunity to make submissions on the conditions by close of business on 25 February 2008. The applicant chose to make no further submissions while the council suggested some minor amendments. Some of the council's suggestions have been included in Annexure A. 44 The Orders of the Court are; 1) The appeal is upheld. 2) Development Application 16-2006-1258-2 for the erection of a dwelling and the consolidation of four lots into one lot at 198, 200, 202 and 204 Lemon Tree Passage Road, Salt Ash is approved subject to the conditions in Annexure A. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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.