Ryan v Port Stephens Council

Ryan v Port Stephens Council - [2008] NSWLEC 66 - NSWLEC 2008 case summary — Zoe

[16]

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 .

[17]

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.

[26]

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.

[30]

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.

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