Sell & Parker Pty Ltd v Minister for Planning [2023] NSWLEC 1523 | Case summary

Sell & Parker Pty Ltd v Minister for Planning [2023] NSWLEC 1523 | Case summary | Zoe

State significant development

The proposed development falls within s 23(3) of Sch 1 of the State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP) being 'development for the purpose of resource recovery or recycling facilities that handle more than 100,000 tonnes per year of waste'. Therefore, the proposal is declared to be State significant development pursuant to s 4.36(2) of the EPA Act and s 2.6(1)(b) of the Planning Systems SEPP.
The consent authority for the proposal is the Minister for Planning under s 4.5(a) of the EPA Act. While there were more than 50 submissions made by way of objection during the public exhibition period, a number of those submissions were "the same or substantially the same" as other submissions and are to be "counted as 1 submission" (s 2.7(6) of the Planning Systems SEPP). Accordingly, the parties agree that less than 50 ("counted") submissions were made by way of objection during the public exhibition period. I accept this position of the parties, and as such the proposed development is not of a kind for which the Independent Planning Commission (the second respondent) has been declared as the consent authority (under cl 2.7(1) of the Planning Systems SEPP).
The power to determine a development application in respect of State significant development is at s 4.38(1) of the EPA Act, which provides: The consent authority is to determine a development application in respect of State significant development by: (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application.
The Court hears the appeal de novo (s 39(2) of the Land and Environment Court Act 1979). Of note is the requirement, under s 4.40 of the EPA Act that, for State significant development, s 4.15 of the EPA Act applies (prescribing evaluation requirements in determining development applications).
However, for State significant development there is no parallel provision to s 4.17 of the EPA Act, which establishes the prescription for the imposition of conditions on development consents, generally. It will become relevant that s 4.38 of the EPA Act, applying to State significant development, is relatively open-ended in that respect.

[5]

Proposal in context

The applicant is in the business of recycling and selling scrap metal (including motor vehicle bodies and the like), at scale. The applicant supplies processed scrap metal for major Australian steel production and is licensed to export scrap metal to China (the proposal is argued to support achievement of the, now, higher quality recycling standards of this market). I generally acknowledge that the form of resource recovery and productive re-use involved in the existing MRRF, and proposed expanded proposal, bring significant environmental benefits; including through reduction of more energy intensive steel making (through coal and electricity). It follows that increased throughput for the MRRF can assist in boosting the region's performance in that regard. The environmental impact statement prepared for the proposal provides some particulars and links the proposal to "circular economy" related government policy (Exhibit A Tab 3, Section 3 pp 45-51).
As might be expected, the proposal also brings environmental disbenefits. While not the only issue of relevance to this case, particularly noteworthy is the high levels of noise the processes involved can bring about. Certainly, noise annoyance was the main issue raised during related public consultation (First respondent's bundle Ex 2 Tabs 21, 24, 25 and 26).
Apart from the aforementioned development consent (SSD-5041), the site is subject to environment protection licence 11555 (the EPL) issued under Ch 3 of the Protection of the Environment Operations Act 1997 (POEO Act) which is concerned with pollution management. Among many other controls, the EPL prescribes scrap metal throughput limits (currently 350,000 tpa), noise limits and operating hours.
While the on-site process flow for waste metal supply and recycling follows a number of paths, during a site visit on the first day of the hearing, the Court had the opportunity to observe scrap metal arrive at the site and be added to stockpiles from cranes; and see cranes lift metals onto and move up a conveyor belt to a large metal shredder (which processes the majority of the scrap metal arriving at the site). There was also the opportunity to see a metal shear which processes metals that are unsuitable for the shredder. The observed shredder and shear were located in the western area of the site (henceforth the western compound). There is also a shear in the eastern area of the site (east shear) which was not operational during the site inspection. Other equipment, not observed during the site inspection, includes an oxy-cutting device to cut oversized items (an operational aspect subject to particular noise controls). There are various pre and post processing steps involved before end-product transport from the site. It is not in dispute that the site's existing processing infrastructure has capacity to accommodate the increased throughput from 350,000 to 600,000 tpa. That is, no additional processing-related equipment is needed.
The proposal, as amended, provides for a series of noise attenuation measures, including the construction of 16m high acoustic walls on three sides of the relocated east shear. Acoustic walls of heights between 6m and 10m would also be installed in the western compound. A depiction of the proposed acoustic walls is shown on the site plan at Figure 1. Figure 1 - Site plan highlighting proposed acoustic walls

[13]

Project noise trigger levels

Under the NPfI, a central question in the analysis of noise impacts is the determination of project noise trigger levels (PNTLs) for a project in its context (NPfI section 2.1): "The project noise trigger level provides a benchmark or objective for assessing a proposal or site. It is not intended for use as a mandatory requirement. The project noise trigger level is a level that, if exceeded, would indicate a potential noise impact on the community, and so 'trigger' a management response; for example, further investigation of mitigation measures. The project noise trigger level, feasible and reasonable mitigation, and consideration of residual noise impacts are used together to assess noise impact and manage the noise from a proposal or site. It is the combination of these elements that is designed to ensure that acceptable noise outcomes are determined by decision makers. …"
The NPfI outlines two different paths for the determination of an appropriate PNTL. One path examines what is termed the "intrusiveness noise level". It relates project noise to background noise levels. In simple terms the intrusiveness noise trigger level is background plus 5dBA. The other path examines what is termed the "amenity noise level". It relates to the absolute level of noise and has an interest in protecting against cumulative noise impact from industry. The NPfI identifies amenity noise levels for different contextual settings.
Drawing these two paths together, the NPfI notes that it is the lowest of the two levels which forms the PNTL. I note that there needs to be an adjustment when comparing intrusiveness noise levels (taken over a 15 minute period) and amenity noise levels (taken over an assessment period ie day/evening/night). There was no dispute in regard to the Tonin Report's findings that in relation to this single industrial use the NpfI (based on two separate adjustments) adopts a position where "Project amenity noise level (LAeq,15min) = Recommended amenity noise level (LAeq,period ) - 2dB (Tonin Report par 91).

[14]

Background noise levels and intrusiveness noise trigger levels

As indicated above, 27 Charles Street (located at the intersection with Anthony Street) comes under particular scrutiny in the evidence and I use it below as a marker for the wider assessment considerations.
Two separate sets of background noise level measurements, separated by some 12 months, were undertaken in the Charles Street environs, near the intersection with Anthony Street. Measurements were undertaken during November and December 2021, intentionally it would seem, in a quite shielded area in the rear yard of 29 Charles Street. According to the first respondent these were the most apposite measurements (Minister's Closing Submissions filed 27 June 2023 (MCS) par 14): "Dr Peng's view is that the background noise levels measured at 29 Charles Street during November and December 2021 should be used. Noise monitoring conducted by the Applicant has occurred while the site is operating. The noise monitor at 29 Charles Street in November and December 2021 was in a location shielded from site noise and therefore is more representative of the background noise levels without noise from the site."
The reason for locating the loggers in the shielded location seemed to be an effort to address the challenge of identifying background noise levels, exclusive of the noise of the project itself. This being the test identified in Fact Sheet A of the NPfI (section A1).
I preferred the applicant's position on this point. Background noise level measurements were undertaken over a sequential five week period from Friday 18th November to Thursday 22nd December 2022 by Dr Tonin, the acoustic expert engaged by the applicant, and documented in the Tonin Report. I understood the work documented in the Tonin Report to comprise a more intricate attempt at getting an understanding of local receiver background noise levels, exclusive of the noise of the project. This work involved loggers located in the front yard area of each of three residential properties (noise data collected over identified periods at both ground and first floor levels) while at the same time noise and vision loggers were located at the site and identifying (noisy) activity in both the western and eastern compounds. Synchronisation of on-site audio and visual information with noise logged at residential receivers allowed the interrogation of receiver noise levels with respect to, relevantly, excluding on-site noise events in the determination of background noise levels at receiver locations. The process for the derivation of RBLs from the November and December 2022 data is explained at Section 3.3 of the Tonin Report, and referenced in Dr Tonin's commentary in Ex 4. For example (Ex 4 par 43): "…(the process for deriving background levels) involves listening to the entire recorded audio for the sample interval, "tagging" data that is potentially attributable to the Site and confirming whether or not the tagged data originates from the Site by correlating with the microphones installed on the Site. Examples are shown in Figures 5 and 6 of the Acoustic Report. By reference to those figures, in respect of noise that was audible in between tagged samples, I confirmed that the audible sound was predominantly from traffic and that noise from the Site was inaudible."
The noise measurements from November and December 2021 provide only for a coarse assessment of RBL. The intention to shield site noise by locating the loggers in the rear yard of at 29 Charles Street would also have the effect of shielding traffic noise from Sunnyholt Road along with other industrial noise-generating land use from the Kings Park industrial precinct (Tonin Report par 39).
Dr Peng, the acoustic expert engaged by the first respondent, raised some concerns in regard to the November and December 2022 data, including: (1) that the approach required "extensive post-processing of recorded unattended noise monitoring data", (2) whether data processing had excluded the site's "steady noise contributions" to background levels (eg engine, exhaust and fan noise from stationary and mobile mechanical plant (Ex 4 par 50)), and (3) the accounting for variance in measurements.
Generally, it seemed to me clear that the Tonin Report accounted for this "extensive post-processing" (as evident from Section 3.3 which outlines the assessment methodology including the noise tagging process and explaining how, say, infrequent, short period, high noise level events were excluded from background levels). Section 3.3 also seemed to explicitly account for Dr Peng's second query and the site's steady noise contribution, mostly inaudible at the receptor level, but still warranting exclusion for calculation purposes. Generally, I found the Tonin Report's explanation of the quite technical analysis undertaken in regard to what I describe above as Dr Peng's first two points as cogent and persuasive.
In regard to the question of variability in background noise level monitoring data, I note the analytical material provided by Dr Peng in support (Ex 3 Appendix D.1). As put by Dr Peng, it demonstrates: "… a narrow variation in assessment background noise levels at 187 Sunnyholt Road (no more than a range of 3 dB) compared to a large variability in assessment background noise levels at 27 Charles Street (up to a range of 13 dB) and 22 Anthony Street (up to a range of 12 dB). "
Dr Peng believes this demonstrates "it is unlikely that traffic noise from Sunnyholt Road is the dominant source of background noise at locations in the vicinity of Charles and Anthony Street" (Ex 4 par 52 (i)). Dr Peng's view, as expressed in Ex 4, is that the cause of the large variability is unexplained. I accept this view, given Dr Tonin only indicating, in response, as follows (Ex 4 par 53): "In respect of the data in Appendix D.1 of this Joint Report, the variations in the background noise level from location to location as claimed fail to demonstrate anything other than the fact that background noise level varies from location to location which is what I would expect where there is a major traffic noise source in the study area."
This response seems to miss the point, this particular concern raised by Dr Peng is not variation in background noise levels from location to location but variation at individual single locations in settings with a relatively constant "major traffic noise source".
While I accept that Dr Peng has raised some unanswered concerns with respect to variability, I am not convinced that they throw determinative weight against the otherwise findings of the Tonin Report. Important to me here is that there is no evidence that the assessment background noise level data as gathered is "contaminated" rather than merely characteristic of real variability. Here I found the applicant's cross-examination of Dr Peng with regard to the quite consistent instances of background levels for Sunday periods (a day of low noise operations only at the site) as falling within the range of background levels throughout the rest of the week, as persuasive (Tcpt, 31 May 2023, pp 12-17).
I generally accept the calculated background noise levels for the most sensitive receivers as documented in the Tonin Report (Table 3). This would establish "intrusiveness" noise trigger levels (RBL plus 5dB), again as documented in Table 3 of the Tonin Report. I will reproduce the relevant numerics after considering the amenity noise trigger levels, the second aspect of the consideration of PNTLs (see [61]).

[15]

Amenity noise trigger levels

The use of amenity noise levels is concerned with limiting increases in noise levels over time which might otherwise occur through application of noise intrusiveness levels alone (NPfI Section 2.4).
Table 2.3 of the NPfI guides the determination of amenity noise levels, indicating different levels for different land use types and settings. While there is no dispute that, insofar as the Charles Street environs is concerned, the land use receiver type is "residential", there is a difference as to whether the Charles Street environs is best described as "urban" or "suburban", with urban amenity trigger levels higher than suburban (Table 2). Table 2 - Residential amenity noise levels (adapted from Table 2.2 of Noise Policy for Industry)
The NPfI provides further guidance on how to differentiate receiver land use categories and which receiver category should be selected. Provisions from Table 2.3 are selectively reproduced below. Notably, calculated RBLs can be a consideration in the determination of amenity levels. Table 3 - Residential receiver category table (adapted from Table 2.3 of Noise Policy for Industry) Receiver category Typical zoning Typical existing background noise levels Description Includes- R2 - low density residential Suburban residential R3 - medium density residential Daytime RBL 45 dB(A) • is dominated by 'urban hum' or industrial source noise, where urban hum means the aggregate sound of many unidentifiable, mostly traffic and/or industrial related sound sources Urban residential B1 - neighbourhood centre (boarding houses and shop-top housing) Evening RBL> 40 dB(A) • has through-traffic with characteristically heavy and continuous traffic flows during peak periods B2 - local centre (boarding houses) Night RBL >35 dB(A) • is near commercial districts or industrial districts B4 - mixed use • has any combination of the above.

[16]

I note the NPfI's explanatory statement with respect to NPfI Table 2.3: "Table 2.3 provides guidance on assigning residential receiver noise categories; however, careful judgement based on site-specific circumstances and consultation with the relevant planning/licensing authority may be required in some circumstances."
The zoning of the area in question is R2 low density residential under BLEP. Dr Peng gives a heavy weight to this fact, which, according to the second column, suggests the receiver sites as suburban rather than urban. He references a journal article produced by EPA specialists which seems to be directly concerned with the topic at hand. The reference is: Marsh C and Downey C, "Determining the Noise Policy for Industry Noise Amenity Category for Residential Receivers", Acoustics Australia, Vol 50 No 3 pp 278-281, September 2022, reproduced at Appendix D2 of Ex 4, which also included some related critical commentary from Dr Peng. I will henceforth reference this paper as the Marsh and Downey article.
The Marsh and Downey article suggests itself to represent an EPA guidance note aimed at "(clarifying) how to determine and apply noise amenity categories for residential receivers when assessing noise under the (NPfI)" and seeking to "provide information to increase consistency in the application of amenity categories and to enable outcomes that align with the principles and intent of the NPfl" (p 278). Dr Peng went to a series of points raised in the Marsh and Downey article which he believed argued against categorisation of receiver sites such as 27 Charles Street and further west as urban receiver category. Points from the Marsh and Downey article raised by Dr Peng included (Ex 4 App D2): "Justifications for changing the amenity category must consider the principles and intended outcomes of the NPfI and not contradict them. Marginal situations should side on the more conservative category. If there is reasonably doubt or ambiguity in the amenity category based on a single or combination of factors, the more conservative category should generally be selected. Where a change in receiver category would affect a group or catchment of residential receivers, the justification should extend to a demonstration that the matters influencing the change would apply across the whole catchment. Where elevated levels of existing industrial noise, or other ambient noise sources and/or other noise environment characteristics are used to justify variance from the land use zoning categorisation, evidence must be presented which should include attended noise measurements. Where the amenity level is proposed to be varied from the land use zoning categorisation based on differences with the description in NPfI Table 2.3 column 4, evidence should be presented which can demonstrate the difference in character and should generally be supported with noise measurements that identify the causes of the difference in "description". The presence of characteristics which vary from the typical existing background noise levels and description (NPfI Table 2.3 columns 3 and 4) in one day, evening or night time period does not necessarily outweigh the characteristics of the other relevant periods. Strong justification should be provided that it is reasonable and in keeping with the principles and intent of the NPfI to change an amenity category based on not all relevant time periods qualifying for consideration of a variance from the zoning-based categorisation."
Dr Tonin relied on the arguments in section 4.3 in the Tonin Report to justify inclusion of 27 Charles Street, and further west, as urban receiver category, albeit within the R2 Low Density Residential zoning. I understood the main supportive points relating to the analysis of site-specific circumstances raised in the Tonin Report to be as follows: 1. The acoustic environment (including at 27 Charles Street) is dominated by noise from traffic on Sunnyholt Road which is an arterial road. Sunnyholt Road has an annual average daily traffic volume of more than 20,000 vehicles. 2. There is an observable inconsistency (including at 27 Charles Street) with the Column 4 description for suburban areas as "an area that has local traffic with characteristically intermittent traffic flows" 3. RBLs (including at 27 Charles Street) exceed or meet the numerical values in Column 3 for suburban receiver category (ie "45 day / 40 evening / 35 night").
A conclusion was drawn in the Tonin Report that the threshold for urban and suburban receiver category is somewhere near 22 Anthony Street (Tonin Report par 110), which would fall into the suburban category located, as it is, over 100m east of Charles Street.
The key disagreement I have with Dr Tonin's conclusion is with respect to his findings on Column 4 of the Residential Receiver Category Table. Factually, the residential area in the Charles Street / Anthony Street / Eggleton Street environs is "an area that has local traffic with characteristically intermittent traffic flows or with some limited commerce or industry". This particular test is not of itself in any way associated with noise, say, from Sunnyholt Road. The test is, essentially, whether these are local traffic streets. It seems to me indisputable that they are. Local traffic management systems ensure this is the case. Here I note the limited access points to Sunnyholt Road, seemingly to ensure the limitation of through traffic use. I reject the Tonin Report's observation that these areas "are consistent with the description attributed to an urban residential category as 'has through-traffic with characteristically heavy and continuous traffic flows during peak periods'" (Ex B Tab 9 par 106).
A different point of interest under the Residential Receiver Category Table is in regard to background noise setting. Numerical guidelines are at Column 3 and noise-related descriptive commentary is at Column 4. I note the Column 4 descriptive material in regard to the suburban receiver category is qualified ("often has"). Whereas it is the foundational point ("… area with an acoustical environment that: …") with respect to the urban receiver category. I have already indicated I prefer and have accepted the findings of the Tonin Report, relying on November and December 2022 data, in regard to RBLs. In turn, I agree with Dr Tonin's conclusions insofar as Column 3 Residential Receiver Category Table is concerned and disagree with Dr Peng.
But this does not relieve me from my conclusions in regard to Column 4 of the Residential Receiver Category Table. Why it is significant to focus on things other than noise (and specifically local traffic levels), in considering amenity trigger levels, is in part explained in the NPfI itself (section 2.4): "… The recommended amenity noise levels have been selected on the basis of studies that relate industrial noise to annoyance in communities (Miedema and Voss, 2004). They have been subjectively scaled to reflect the perceived differential expectations and ambient noise environments of rural, suburban and urban communities for residential receivers. They are based on protecting the majority of the community (90%) from being highly annoyed by industrial noise. …"
I take this NPfI commentary to be highlighting the potential for a higher degree of annoyance for those residing in a low-traffic local street than for those living in a higher traffic street, even under equal background noise settings. That is to say, the compounding of the two factors of background noise and traffic levels brings a degree of acceptance that it not evident in areas where there may be higher background noise but still a sense of amenity due to the otherwise character of the street (ie a "quiet" local street, traffic-wise). It also seems to me there is a common sense to this.
Were I to adopt the position indicated in the Marsh and Downey article, this would bring the properties at, and east of, Charles Street into a "marginal situation" under the Residential Receiver Category Table, warranting adoption of "the more conservative category" at [52], placing 27 Charles Street and properties to the east within the suburban receiver category
It seems fair to give some weight to the (albeit self-described) guidance provided in Marsh and Downey article. This is in part related to the reference in the NPfI to "… consultation with the relevant planning/licensing authority" at [50]. However, if the Marsh and Downey article is suggesting adoption of a conservative approach in all so-defined "marginal situations" (emphasis added) to the extent that they become noise control elements, this seems to me at odds with some other principles in the NPfI. I need to look to the objectives of the NPfI itself which emphasise "feasible and reasonable noise management" (NPfI p iii). There is the reference to "careful judgement based on site-specific circumstances" in the explanatory statement to NPfI's Table 2.3 at [50]. Then there is the identified need for care in adopting amenity noise levels as a control (NPfI p 11): "Amenity noise levels are not used directly as regulatory limits. They are used in combination with the project intrusiveness noise level to assess the potential impact of noise, assess reasonable and feasible mitigation options, and subsequently determine achievable noise requirements."

[17]

Conclusion on PNTL interpretation

Table 4, below indicates RBLs and both intrusiveness and amenity trigger levels for 27 Charles Street at ground floor level (NPfI Section 2.6), taking account of adjustments. Here I base the RBLs on my conclusion to prefer the use of the November December 2022 data (see [38]). In regard to the morning shoulder period (6am-7am), I accept the Tonin Report's argument that the project amenity noise level should accord with that for day periods (Tonin Report par 92). Noise impact during this (morning shoulder) period is to an extent academic given the applicant's acceptance of the position that the noisy activities of shears and shredders would only commence from 7am. The high existing RBLs during the morning shoulder period is also relevant. Table 4 - Comparing relevant noise trigger levels at 27 Charles Street (adapted from Ex B Tab 9 Table 3 and Ex 4 Table 2-1)
Noteworthy from Table 4, is that ambiguity in the determination of the appropriate PNTL (as the lowest of the relevant intrusiveness and amenity trigger levels) comes into play during the evening and night periods. That is, it is clear that intrusiveness is the relevant project noise trigger for day and morning shoulder, no matter whether suburban or urban amenity noise levels are selected. However, for evening and night periods, the application of the suburban amenity level as the PNTL provides for a significantly different result than the urban amenity level, which in this instance is more or less equivalent to the intrusiveness trigger level.
Here is the point where it is important to note that taking a fixed position on a PNTL is not the end of it when a conclusion is sought on operational noise limits. PNTL's are helpful in assessing potential impact. But before drawing conclusions and assigning operational noise limits it is necessary to also factor in hours of operation, and broader questions of feasible and reasonable noise management measures, including in consideration of the current operating conditions of the MRRF and potential comparable improvements to operational noise management into the future.
At this point, I can also note that, on the topic of PNTLs, the NPfI also has regard to non-residential noise receptors (NPfI Table 2.2). Of relevance are the industrial lands in the immediate site vicinity (zoned E4 General Industrial under BLEP) and the land across Breakfast Creek to the south of the site within the E3 Productivity Support zone. The NPfI differentiates amenity noise levels for industrial receivers and commercial premises receivers. In this instance, it is reasonable to consider the E3 Productivity Support zoned land as commercial and the E4 zoned land as industrial with amenity project trigger levels of 63 and 68 LAeq,15min dB(A), respectively (having regard to the adjustment indicated at [34]). The relevant trigger levels are included in Table 4.

[24]

Conceptual approach

The first respondent argued that application of best achievable noise levels (Table 8 to the Tonin Report) as conditions of consent was required under a fair reading of the NPfI. Various points of commentary in the NPfI were nominated (MCS par 19). I note reference was made to Figure 2 of the NPfI which shows a flow chart. The flow chart was read by the first respondent as indicating that (even) in instances when PNTLs were not exceeded it was nevertheless necessary to apply conditions requiring best achievable noise levels. Section 1.6 of the NPfI ("overview of the policy") also suggests the following as one of the "main steps" for industrial noise management: "… 5. Setting statutory compliance levels that reflect the best achievable and agreed noise limits for the development (Section 5) …"
I cannot agree with the first respondent that the application of best achievable noise levels, as conditions of consent, is required under the NPfI. It is clear to me from its commentary, in particular having regard to Section 1.6, that the determination of PNTLs is the more foundational standard or, as put, "benchmark" under the NPfI. It is in instances of noise circumstances above the PNTL where "management measures are required to be considered" (NPfI p 5). The NPfI is also quite considerably attentive to circumstances where noise levels exceed PNTLs and the sometimes appropriateness of balancing out various areas of public interest in coming to the appropriate solution. This balancing out is explained in Section 5.1 itself: "A planning approval or licence condition arrived at through the process described in this policy will have taken a number of matters into account, in accordance with the requirements of the relevant legislation. These can include: • the assessed noise impact, which includes the impact of the noise source and any additional impact caused by meteorological conditions • mitigation measures required to achieve the project noise trigger level • identification of a practical (achievable) noise level after adopting all feasible and reasonable mitigation measures • the significance of any residual noise impacts and the number of receivers affected • consideration of trade-offs • whether the final noise level proposed is acceptable. It is important to note that the agreed limits in the planning approval or licence apply under the meteorological conditions outlined in the policy to be relevant to the assessment site. Compliance with noise limits will not always safeguard against complaints because it is not possible to protect the whole range of individual sensitivities in a community to noise."
The first respondent refers to commentary in the NPfI (p 6) establishing a step concerned with setting "statutory compliance levels that reflect the best achievable and agreed noise limits for the development". However, this reference in the NPfI is less concerned with adopting the best modelled noise outcome at receiver sites and more concerned with what might be able to be brought about in practice in instances were a PNTL is exceeded. On this point, I agree with Dr Tonin that Figure 2 does not properly represent the intention of the NPfI on this point.
I am not sure that I understood the reasoning behind the applicant's adoption of, for more critical periods at least, the existing operational noise limits. One, perhaps, rational view would be that a concern about assessing impact should acknowledge the existing lawful noise output settings as the benchmark (emphasis added). The applicant argued that its approach provided a reasonable and conservative approach as, in each instance, PNTL as calculated by Dr Tonin exceeded the existing license conditions. My immediate concern with this approach is my finding that 27 Charles Street (and points west) are not readily categorised as an urban residential receiver area. The implications of this point of difference are centred on the evening period, where the suburban residential receiver category would provide for a project trigger level of 43dBA LAeq, 15min, whereas existing EPL license conditions apply a figure of 46dBA LAeq, 15min. On this point, the applicant's approach cannot be seen as conservative in regard to the evening period, in my view.
The NPfI again provides the guide in referencing the need for a balancing of economic, social and environmental costs and benefits against the noise impacts. There is also a need to factor in the first respondent's concerns that a cautious approach be adopted (eg MCS pars 8, 34). Together, conceptually, this requires a search for what might be practical (or feasible) and reasonable, and in particular, if some improvements over the current lawful noise limits can be feasibly and reasonably achieved. There is a responsive to this potential, on the part of the applicant, with its nomination of reductions in operating hours, as considered below [82]-[83].

[25]

Outline findings on empirical noise limits as codified in consent conditions.

What is clear is that for the marker residential site of 27 Charles Street:

The applicant's position on the day period (7am-6pm) noise limit of 46 dBA LAeq,15min is conservative and acceptable given the PNTL for the daytime period (based on project intrusiveness level) is 51 dBA LAeq,15min.
The applicant's position on the night period (10pm-6am) noise limit of 38 dBA LAeq,15min is generally acceptable in that it aligns with the PNTL (based on the conservative suburban amenity noise level).
The applicant's position on the commercial and industrial receivers is acceptable as they align with the associated amenity noise trigger levels.
The applicant's position on the morning shoulder period is acceptable (at [61]).
During the evening period, the determination of noise limits moves into a questionable non-compliance with PNTL levels (at [72]).

I need to note here that there are strong arguments to suggest that, for residential receivers, PNTLs should be other than vehemently applied in this instance with respect to the evening period. These arguments include:

The fact that current EPL and consent conditions exceed suburban amenity trigger levels (at 46 dBA LAeq,15min for both evening and morning shoulder periods, they are more aligned with urban amenity trigger levels).
The fact that the more noise generating operations would operate for considerably reduced hours generally (commencing at 7am and ceasing at 8pm compared to current EPL and consent conditions allowing operations from 6am to 9pm).
The fact that existing RBLs for evening and morning shoulder periods at the marker site (27 Charles Street) are higher than those nominated as "typical" for suburban areas in Table 2.3 of the NPfI.

On the other hand, I interpret the first respondent's key concern to be that with the increased scale of throughput, there remains a risk of serious noise annoyance. And further, that this risk, evident particularly in the evening period, may be able to be better managed. The first respondent gives considerable emphasis to various serious objections which were received, notably from the residential areas in some proximity to the site. Copies of these submissions were provided to me (Ex 2 behind Tabs 21, 24, 25 and 26). Dr Peng also referred to the substance of these objecting submissions (Ex 4 Appendix C). Here I am mindful of the need for the Court to give direct consideration to such objecting submissions under s 4.15(1)d) of the EPA Act, which I have done. I also note the applicant observes that the notification period for the proposed development coincided with COVID-19 restrictions in Sydney and lower background traffic noise levels than normal (Applicant's Reply Submissions, filed 30 June 2023 par 30).
It seems clear enough that the key point of dispute in regard to operational noise limits is narrow. It essentially relates to evening operations in my opinion. There are related topics which need to be linked in to the evaluative exercise before substantive findings on operational noise limits can be made. Among other things, these topics include current operational conditions, the particulars of hours of operation, operational noise management measures and performance management procedures over time. I get to these topics below. But here it does make sense to give attention to the somewhat more isolated operational noise limit-related topic of the first respondent's conditions relating to LAFmax noise limits.

[26]

First respondent's proposed LAFmax noise limits and related conditions

The first respondent proposed two additional related conditions. Condition C6 and C8 proposed that noise generated by the development not exceed the following LAFmax noise limits at residential receivers: "(a) between 7am and 10pm - LAFmax 72 dB(A) (b) between 7am and 10pm - no more than 5 occurrences of maximum noise event greater than or equal to LAFmax 64 dB(A) within any given 15-minute sampling period; or (c) between 10pm and 7am - LAFmax 52 dB(A)."
With respect to these proposed conditions, I accept the position which can be taken from Section 2.5 of NPfI that while the potential for sleep disturbance from maximum noise level events from premises during the night-time period needs to be considered, through other periods of the day, maximum noise level events are to be considered as factored into LAeq limits. This means the first respondent's Conditions C6(a) and (b) (and C8, relevantly) should not apply. The Tonin Report makes findings that "potential for sleep disturbance from maximum noise level events from premises during the night-time period needs to be considered" (Tonin Report Section 4.5). The EPL includes a 58 LAFmax control for the morning should period. This should be retained, noting the Tonin Report's calculation for the sleep disturbance trigger (RBL + 15dBA) for the morning shoulder period as 61 LAFmax for 27 Charles Street (Tonin Report Table 3).
The effect of the first respondent's Condition C6(c) relating to sleep disturbance for the night time period is to be retained, however the LAFmax 52dBA figure should be replaced with the figure LAFmax 54dBA as calculated for 27 Charles Street in Table 3 of the Tonin Report. The relevant night period is limited to 10pm-6am for the purposes of this condition.
In regard to the first respondent's Condition C7 and specified annoying noise types, I note that the Tonin Report responded directly to each of the types. It referenced physical evidence in the noise surveys as demonstrating "no audible tones" and "no substantial low frequency content", and noted that the NPfI provides that a correction for intermittent noise only applies during the night time period. Given the fact of other noise limiting conditions, I find the applicant's Conditions C5 and C6 adequately address tonal, low frequency, intermittent and impulsive noise.

[29]

Key differences between the parties

The first respondent's conditions would bring operations back significantly from the current licensed hours (current operational activities generally limited to 6am-9pm Monday to Saturday v proposed 7am-6pm Monday to Saturday, 8am-6pm Saturday). However, essential to an appreciation of the first respondent's approach is the identified potential for expanding operating hours into the morning shoulder period and evenings, dependent on demonstrated noise performance. The first respondent's proposed Condition B12 establishes the framework for this to occur. "B12. Despite Condition B10 and the hours of work specified in Table 1, the Applicant may seek the Planning Secretary's written approval to carry out the operation of the development between 6am and 7am on Monday to Friday, between 7am and 8am on Saturday, and/or between 6pm and 9pm Monday to Saturday. The request must include: (a) results of: (i) the latest Noise Performance Monitoring Report carried out under Condition C12; (ii) the latest compliance report carried out under Condition D11; (iii) the latest independent audit carried out under Condition D13 (if any); (b) demonstration that noise generated by the operation of the development does not exceed the noise limits specified in Conditions C4 and C6 during the relevant operating hours sought under the request; and (c) details of activities that need to be ceased, rescheduled or reduced under noise-enhancing or very noise-enhancing conditions to achieve compliance with noise limits specified in Conditions C4 and C6 at all times during the relevant operating hours sought under the request."
This approach reflects the first respondent's suggested need for a cautious approach in recognition of the overall expansion of scrap metal throughput (MCS par 34): "In order to address the uncertainty as to whether the amenity noise levels can be complied with during the evening, the Respondent proposes a cautious approach whereby noise generating activities are curtailed during the more sensitive times of day until the effectiveness of the noise mitigation measures is tested and compliance with amenity noise levels is confirmed."
The applicant's version of operational hours would separate metal shearing and shredding from other operational activities, a point of difference from the current EPL approach. The applicant's point here is "in recognition that metal shearing and shredding are likely to be more susceptible to the emission of noise than other activities falling under the umbrella category of 'all other activities'" (ACS par 84(b)). I note that in oral evidence Dr Tonin emphasised that the (eastern) shear was the key source of LAFmax noise levels from the site, referring to noise data summary material provided at Figures 12-14 of the Tonin Report. I note the recommendations of the Tonin Report include that: "shredders, shears and cranes on the Site shall not commence prior to 0700 on any day" (par 170, emphasis added).
The applicant's version of conditions would allow other operational activities from 6am. The Tonin Report paints a picture of the types of activities to occur during this period perhaps in preparation for commencement of operation of the shredder (par 170 ii): "Deliveries only to occur prior to 0700 with the use of front-end loaders to push delivered product out of the way where necessary."
The applicant indicates that its "considered position is that the imposition of the hours of operation proposed by the (first respondent) would make the development consent uneconomic to take up" (ACS par 85).

[30]

Evidence

It is practical to focus on key risk areas and I thought Dr Peng provided a lead on that front with his differentiation of noise risk from the eastern compound and western compound operations. I believe the evidence is quite strong that the arrangements with respect to the eastern shear would provide for reasonable operation of that particular shear in accordance with the applicant's proposed hours of operation (adding that, as referenced by Dr Tonin, cranes also only begin operations after 7am during weekdays).
That is to say, the noise emanating from the eastern shear would, on the evidence, be likely to be well attenuated (with respect to eastern residential receivers) as a consequence of the proposed (relatively adjacent) 16m acoustic wall and proposed real time noise monitoring in the immediate vicinity of the eastern shear. Dr Tonin's explanation of Figures 12, 13 and 14 in the Tonin Report (pp 181-183), lucidly outlined the source of the major noise events (in particular east shear vs west shear), albeit over a narrow time period, and the "dramatic" effects of the proposed acoustic walls in mitigating effects of the eastern shear for the nearest residential receivers (Tcpt, 31 May2023, p 62 (5)). Generally, I believe the data collection scope and analytical framework followed in that section of the Tonin Report to be highly creditable. The applicant's proposed real time noise monitoring of operations in the vicinity of the eastern shear can effectively attend to the concerns raised about high noise operational incidents (notably, the suggested dropping of metals from an unreasonable height).
However, noise generated in the western compound and received in eastern residential areas, at least when sourced at a point some distance above the ground, benefits less (in terms of attenuation) from the 16m acoustic wall at the western boundary. Dr Tonin has suggested a "1 decibel" mitigative effect (Tcpt, 31 May 2023, p 63(8)). Dr Tonin explained that, according to his measurements, out of 100 hypothetical significant noise events above RBLs, some 77 were from the east shear and 23 were from the west compound. With the upscaling of throughput, Dr Tonin indicated that all of the east shear noise events would be mitigated and conservatively the west compound events would double to 46. This was an explanation of major improvement over the existing measured effects.
Dr Peng focused on the identified western compound maximum noise events and argued that there was insufficient mitigation in relation to the western compound. He went to Appendix E of the Tonin Report titled "Measured contributions from the West Compound and East Shear". This work summarised the contributions from both fields for selected times during day, evening and morning shoulder periods over 15 minute intervals. Dr Peng pointed to data indicating LAFmax levels of 72.5 and 67.8 from the western compound for day periods on 14 December 2022 and 12 December 2022 respectively. The argument was that if such events were to scale up with the expanded MRRF throughput then there was insufficient attenuation in regard to west compound shear operations (Tcpt, 31 May 2023, p 64(45)).
Dr Peng pointed to the LAeq, 15min measure of 43.2 dBA, for the day period on 12 December 2022 as the western compound's contribution (referencing the Tonin Report's p 388). I understood his argument to be that this form of noise event could equally occur during evening operation at the western compound and, further, that with the increased throughput at the western compound, all other things being equal, the regularity of potentially annoying noise events would increase. Dr Peng saw a practical opportunity for these kinds of noise events to be able to be managed in the western compound (akin to what was proposed in the eastern compound). A particular event that both experts seemed to seek to reduce was the dropping of metal waste by cranes and the ambition was to reduce the drop height of waste materials as a noise event. I understood that the higher the elevation of noise sources in the western compound above the ground, the less effective the eastern acoustic wall (due to diffraction). Dr Peng's view was that implementation of real time noise monitoring, and a trigger action response plan (TARP), were management measures that could assist in attending to these kinds of noise risks if physical noise barriers weren't practical for the western compound. Dr Tonin was asked to respond to this point, however he was unable to assist (Tcpt, 31 May 2023, p 70(41)).

[31]

Consideration

The key point of difference here relates to the operation of metal shredders, metal shears and cranes during the evening period. While acknowledging the concerns of the first respondent in regard to caution (and a suggested performance-based pathway to increased hours even to 9pm operations (Tcpt, 31 May 2023, p 71(49)), I believe that the material before the Court allows some more concrete steps towards final operational take-up than currently proposed by the first respondent, provided certain performance related conditions are applied. Here I am most critically mindful of the noise evidence but also need to give some consideration to the large investment decision involved in the provision of the proposed acoustic walls for an expanded MRRF throughput which involves some public benefit, including the very significant scale investment that would be involved in the 16m high eastern wall.
Based on the evidence of the noise of the existing operation and noise attenuation, as calculated, I am generally satisfied with allowing the operation of metal shredders, metal shears and cranes on the site for the first half of the evening period (between 6pm and 8pm), subject to performance management and monitoring which is explained more fully later.
It seemed clear on the evidence of Dr Tonin that noise from the eastern compound could be attenuated to a satisfactory extent as a consequence of the acoustic walls. The applicant's proposed performance monitoring at the eastern shear provides an important safeguard for operations between 6pm and 8pm.
On my own understanding, I found Dr Peng's arguments persuasive on the potential for increased activity in the western compound (associated with increased MRRF throughput of say 71%) to, on occasion, breach 43 LAeq,15min (the amenity noise trigger level) during evening periods. While I think only one breach of this figure was uncovered by Dr Peng in his review of the period of investigation documented in the Tonin Report, I found the evidence inconclusive on the likelihood of future noise events from the western compound resulting in noise reception greater than the amenity noise trigger level. This does not mean that I am not accepting of the operations of the western compound during the evening period. It is to be recalled that my finding was that PNTLs were not to be taken as fixed requirements [63], and in any event there was some doubt as to whether the suburban amenity level applied [59]. Returning to the NPfI's point on determining "feasible and reasonable noise management measures", it seems to me further attention is required in regard to operations in the western compound, including real time noise monitoring, which I return to later.
Relating the finding to allow operation of cranes, shredders and shears from 6pm-8pm to noise limits, I note that the first respondent, in its version of conditions, has adopted a 44 LAeq,15min noise limitation standard for evening periods at 27 Charles Street, reflecting the applicant's modelled achievable figure. The applicant seeks a limitation of 46 LAeq,15min, in accordance with the current EPL. With appropriate supplementary conditions in place, it seems to me reasonable to adopt a figure of 45 LAeq,15min for evenings for 27 Charles Street. This should not be considered as a middle ground. I am aware that the first respondent is making a concession already in adopting its figure. The non-acceptance of the applicant's position makes some allowance for my finding that the "reasonably most-affected" residential receiver sits in a marginal situation between "suburban" and "urban" categorisation [59], while at the same time acknowledging that the proposed operations would conclude at 8pm. That is, at a midpoint of the evening period, during which RBLs would remain relatively high.

[33]

Consideration

It seems to me preferable to have a clear validation system which would identify and require evaluation from the most affected receiver in demonstrably different settings. So, for the closest residential areas to the east, I can adopt 27 Charles Street as the most noise-affected site. Dr Tonin suggested 15 Anthony Street, around 100m west of 27 Charles Street and topographically higher, is warranted as a validation site. I agree with this selection but believe, for the critical evening period, this site is more obviously subject to a suburban amenity trigger level and warrants the lower threshold control of 44 LAeq, 15min, as does the northern residential receiver at 29 Camorta Close. For the sake of simplicity, for each of these premises, the existing EPL limits can be applied in regard to the day period (and therefore morning shoulder period). This would retain the essence of the status quo for residential receivers for this period, and according to Table 8 of the Tonin Report there would be no concerns in regard to compliance.
Then other single validation sites can be chosen for most affected industrial and semi-commercial areas. The picture is clearer in regard to the industrial sites. Here, the first respondent's nomination of sites located west, north and east of the MRRF can be nominated. In regard to commercial sites, it is unfortunate the parties were unable to come to some agreement on the most affected site(s). I have selected the site with the highest predicted LAeq, 15min prediction (Tonin Report Table 8). That is, 40 Forge Street, which does not appear to be on the list of either party. But if the parties were to agree on a different location this would be acceptable to me. For the industrial and commercial sites, NPfI's PNTLs apply.
I will mention here briefly that the Tonin Report has given consideration to the Shree Swaminarayan Hindu Temple, some 300m to the south-west of the site. I accept the finding, which I understand was that predicted noise levels at the receiver would not be of concern, taking account of hours of use and noise reduction from typical windows (Tonin Report, Table 8 par 96).
The applicant's proposed Condition C9 and first respondent's proposed Condition C13 both require the development to not emit offensive noise (as defined in the POEO Act), which leaves the door open for the investigation of complaints from sites not otherwise nominated as requiring performance monitoring, something agreed by Dr Tonin (Tcpt, 31 May 2023, p 77(5)).

[41]

Post approval oversight by regulators (applicant's proposed conditions B2-B3 - first respondent's proposed conditions B2-B4)

The first respondent's proposed conditions B2(b), B3 and B4 would provide for the Secretary of the Department of Planning and Environment (Secretary) to make written directions to the applicant to implement actions relating to "the content of any strategy, study, system, plan, program, review, audit, notification, report or correspondence submitted under or otherwise made in relation to this consent". The applicant is concerned about the uncertainty of any such condition. The first respondent argues that this provision facilitates the direction of actions which would follow the findings from "management plans, monitoring programs, audits and reports", otherwise required to be prepared in relation to the consent (MCS par 46).
The first respondent's commentary is apposite (MCS pars 42-44) in differentiating the breadth available to consent conditions applying to State significant development (s 4.38(1)(a) of the EPA Act) and other development applications (s 4.17 of the EPA Act). The references to Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited (2008) 160 LGERA 20; [2008] NSWLEC 185 at [50], [75], [78] and [80] were pertinent.
I understand that the first respondent's proposed Conditions B2, B3, B4 and relatedly B28, as conditions for State significant development, align with the responsibility of the Secretary and Department of Planning and Environment (the Department) in regard to monitoring and enforcing compliance for complex development of this kind. Noting this, the qualifications in Conditions B3 and B28 ("consistent with the requirements of this consent") adequately address concerns in regard to certainty and finality, generally.
The first respondent's intention with respect to proposed Condition B2(b) is clear from its submissions. That is, that "[the] supervisory role of the Planning Secretary in relation to the preparation and implementation of plans, programs, etc is clearly set out in condition B3" (MCS p 11). To remove any doubt, there is a need to add a qualification to proposed Condition B2(b) as follows: "in accordance with all written directions of the Planning Secretary under Condition B3".
In regard to the first respondent's proposed Condition B4, the reference to "the most recent document prevails to the extent of any inconsistency" only applies to three documents listed, and is a practical provision.

[42]

Staging of proposed increased throughput and surrender of existing consent (applicant's proposed Conditions B5-B8 and B12-B14 - first respondent's proposed Conditions B6-B9 and B15-B17)

The parties agree on the definition of "Stage 1 Operations" and "Stage 2 Operations". In turn, the parties agree that the Applicant would increase its throughput in two stages: first, from the current 350,000 tpa to 450,000 tpa upon the Secretary's approval of Stage 1 Operations; and, second, from 450,000 tpa to 600,000 tpa upon the Secretary's approval of Stage 2 Operations.
There are two factors relevant to the particulars of staging which might be nominated in the consent. The first I consider is a procedural matter which relates to the surrender of the existing consent. The second is concerned with steps required to be achieved for approval of the two stages of operations.
It would be the case that any future consent becomes operational with physical commencement of the proposed development. Conditions would be applied to manage the relationship between a future consent and the existing, including the need for its surrender. It seems to me the applicant provides a clear and reasonable approach here. For the applicant the surrender of the existing consent would not occur until 12 months after the approval of the Stage 1 operations. However, the applicant agrees that, in the interim period, the new consent would prevail to the extent of any inconsistencies (I refer to its Conditions B13, but also noting its Condition C3). The applicant here acknowledges the need for continued compliance with management plans under the existing consent (its Condition B14). I think the applicant's position does address the first respondent's concern about its "initial reporting period". In my interpretation of the applicant's position, the existing consent would continue to apply in that respect. The applicant's ambition throughout this process is to upscale throughput, which means it would be rational for it to move as soon as practical towards the Secretary's approval of Stage 1 Operations. I am not overly concerned about prospects for uncertainty as to the applicable consent prior to the surrender of the existing consent.
The other concern here is what needs to occur prior to the Secretary's approval of Stage 1 Operations and Stage 2 Operations. The further conditions of consent individually nominate if they need to be completed prior to approval of either Stage 1 or Stage 2 operations. That is, they speak for themselves. If it is to be, as seems to be the wish of the parties, that the wording in the first respondent's Condition B7 and B8 are to also list relevant prerequisite conditions for Stage 1 and Stage 2 approval by the Secretary, then it makes sense for all of the relevant conditions to be included. The parties can attend to refining the conditions to suit in what should be a straightforward administrative exercise.

[47]

Flooding impacts (applicant's proposed Condition C1-first respondent's proposed Condition C1(a))

The first respondent's Condition C1(a) would require that acoustic barriers be designed to enable panels to be opened in the probable maximum flood (PMF). The test is to the satisfaction of the Secretary. The applicant is concerned about the need for this (given the low risk of PMF events), associated costs and requirements for the Secretary to approve the design. I agree with the first respondent that the specialist study has indicated that (Arcadis, Addendum - Flood Assessment Report, 4 April 2023, Section 4 p 8, (Arcadis Report)): "For the PMF event, the introduction of the proposed acoustic walls will increase the difficulty for floodwater traversing through the site. There will be significant flood level increases within the site and the properties upstream…"
The Arcadis Report indicates that "incorporation of openings at the base of acoustic walls could significantly reduce the increases in flood level to the adjacent properties" during PMF events (ibid). I have not seen material evidence in regard to construction costs. However, it is apparent that an "acoustic consultant" has assisted in developing a scenario for incorporation of flood flaps in acoustic walls (ibid).
Generally, I find that the Arcadis Report's conclusions mean it is necessary to impose a requirement for "flap panels" or something with similar effect on relevant acoustic walls.
However, I am also concerned about the clarity of the wording in the first respondent's proposed Condition C1(a). At one level it is clear that the finalisation of the design of acoustic walls would be to the satisfaction of the Secretary. The point of the condition's commentary relating to flap panels, or the like, is to ensure that the proposed acoustic walls do not unreasonably affect the site or nearby land in respect of flooding during very major events. It would be normally considered as insufficient, in my view, if the type of flood events sought to be protected against by allowing wall openings of the kind proposed was limited to the PMF. The PMF event is of course known to be at the outer reaches of probability. More typically, again in my experience, the need is to account for a continuum of flood events between one selected event (say the 1% Annual Exceedance Probability (AEP) event or a lesser probability event) and the PMF. The intention would be to better manage the site and local flooding circumstances as newly affected by proposed acoustic walls. That is to reasonably reduce the potential for the development to "bring about significant flood level increases within the site and the properties". The first respondent's condition, including the provision for enabling "another suitable engineering solution to appropriately minimise the issue", goes some way to addressing what I am seeking to identify as a deficiency. While I may need to hear further submissions in regard to this (I acknowledge this was not a matter of any great attention during the hearing), it seems to me less useful for the wall flaps to be openable only at the PMF event and more pertinent for the wall flaps to be openable, say, "during very major flooding events beyond 1% Annual Exceedance Probability (AEP) event up to the PMF, to the satisfaction of the Secretary". (Emphasis added.) Wording similar to this would allow the applicant's flooding specialists to identify at what point beyond the 1% AEP event the effects of the walls on flooding become problematic, and demonstrate the same to the Secretary.

[50]

Noise performance monitoring (applicant's proposed Conditions C7-C8 - first respondent's proposed Conditions C9-C12)

This matter is also considered above at [95]-[99]. The essential point of difference between the parties might be thought of as twofold. The first point is in regard to real time noise risk management in the western compound. In accordance with the position of Dr Peng, it seems to me an essential requirement that a thorough investigation be undertaken into the bringing about of a practical means of delivering a real-time operational management response to impulsive noise generating practices (eg metal dropping and the like) in the western compound, especially during the evening period (6pm-8pm). The first respondent's proposed Condition C10 seems to be a starting point on that front. It would be appropriate to qualify the condition approach with a phrase such as: "or an alternative approach to live noise monitoring feedback for operators of cranes in the western compound". There was a concern on the applicant's part on the conditions calling up a TARP with respect to noise. I did not understand this reticence. What is being sought here is some operational infrastructure to be set in place to trigger some operational action to minimise annoying noise generating activities, which sometimes might otherwise be incentivised (eg easier of faster work practices but risky in noise terms).
I am not convinced of the need for the first respondent's Condition C11 with respect to making available real-time noise monitoring to the Department and EPA at all times via a web portal or similar. I have trouble understanding how it would come into use. More important to me is the confirmation of noise performance via timely and professional noise performance monitoring, including in the western compound. This goes hand-in-hand with my agreement that the applicant be allowed to operate for its nominated period during evenings from commencement of Stage 1 Operations.
The applicant's proposed Noise Performance Monitoring Report (NPMR) would occur prior to commencement of Stage 2 Operations or within two years of commencement of Stage 1 Operations, whichever is the earlier. The first respondent seeks an NPMR prior to the commencement of Stage 1 and Stage 2 Operations.
I see little point in a NPMR prior to Stage 1 Operations. I find that it would be appropriate for the initial NPMR to be prepared at or within six months of the commencement of Stage 1 Operations. This seems to accord with initial audit periods under the "Independent Audit Post Approval Requirements" dated May 2020 and prepared by the Department of Planning, Industry and Environment (Ex 6 p 3). While this audit may bring its own further monitoring requirements, the consent should also require a NPMR within six months of the commencement of Stage 2 Operations, and then at intervals no greater than three years or as otherwise directed by the Secretary.
In regard to the first respondent's proposed Condition C12(a), I accept the first respondent's reference to NPMRs being prepared by "a suitably qualified, independent and experienced person(s) whose appointment has been endorsed by the Planning Secretary". For me, this approach aligns with the responsibility of the Secretary and the Department for monitoring and enforcing compliance for complex State significant development, such as that proposed here: [116]-[117].
I generally agree with the first respondent's nominated sites for noise monitoring as expressed at Condition C12(c) except, unless agreed otherwise, the commercial site 40 Forge Street, Kings Park should replace 34 Forge Street. Mindful of the applicant's submissions (ACS par 167), whether there is a need for ongoing noise monitoring at the commercial sites (because of expected ready compliance) is a question which might be reasonably addressed in the NPMR. In turn, there should be provision in Condition C12(c) for the monitoring of each of the four sites to be subject to variation as agreed by the Secretary. This would be dependent on data demonstrating self-evident lack of need for further monitoring.
I accept the first respondent's proposed Condition 12(d), including its reference to adjustments (at subpar (iv)) as a factor warranting ongoing confirmation. This seems to make sense to me after the findings of the Tonin Report.
The first respondent's proposed Condition 12(e) is not agreed, given my findings that no monitoring is required prior to the commencement of Stage 1 Operations and that I generally accept the expert commentary on the lack of feasibility with relating on-site noise events to noise measurement at receptor locations (Ex 4 par 154).

[51]

Operational noise management (applicant's proposed Conditions C9-C11 - first respondent's proposed Conditions C13-C15)

Consistent with previous findings at [139], I agree with the first respondent's position requiring the Operational Noise Management Plan (ONMP) to be prepared by an independent expert endorsed by the Secretary.
Generally, l accept the particulars for inclusion in the ONMP as proposed by the first respondent with the following exceptions and comments: 1. The TARP should be concerned with on-site triggers, only. Here I note the experts' agreement with the difficulties in linking on-site noise events and compliance at the receiver, including Dr Tonin's concerns in oral evidence, apparently shared by the EPA and the Department at that point (Tcpt, 31 May 2023, p 70(25)). My concern here is not with the name, it should be changed here if "TARP" means something significantly different in standard State significant development conditions. As indicated previously, the concern is to have a system in place that identifies risky noise events and triggers a response at the operational level to prevent or, at least, minimise its occurrence. It is important that records be available in regard to this. The applicant is already proposing something of this kind for the eastern compound. An arrangement of similar effect is required for the western compound. The first respondent's proposed Condition C14(c)(i), then is generally accepted. In this condition I note the linking to compliance with operational noise limits. For me this means that over time, and if the evidence is clear, the applicant has the chance to prove its noise-related credentials which should result in reductions in slavish following of first level monitoring or documentation requirements. 2. The first respondent's proposed Condition C14(d)(i) should reference "details of noise emission of all significant sources associated with the development" (emphasis added). 3. The first respondent's proposed Condition C14(c)(ii) is not agreed for reasons previously provided. 4. Changes are required to the first respondent's proposed Condition C14(d)(iii) in accordance with my findings above in regard to the TARP. 5. The first respondent's proposed Condition C14(d)(iv) is generally accepted with the italicised addition: "…details of activities, if any, that should be ceased …". 6. The first respondent's proposed Condition C14(d)(v) should be limited to referencing the ongoing monitoring arrangements for the sites identified in the first respondent's Condition C12(c).

Sell & Parker Pty Ltd v Minister for Planning

At a glance

Court

Decision date

Source

Judgment (85 paragraphs)

Parties

Cases Cited (2)

Cited By (1)