Stockland Developments v Wollongong Council and others

APPLICANT Mr M Craig SC SOLICITORS Baker & McKenzie

FIRST RESPONDENT Mr J Ayling SC LEGAL REPRESENTATIVES: SOLICITORS Phillips Fox

SECOND RESPONDENT Mr B Preston SC SOLICITORS Pike, Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10210 of 2004 Stockland Development Pty Ltd (Applicant) v Wollongong City Council (First Respondent) and Cookson Priblico Pty Ltd (Second Respondent)

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal by Wollongong City Council (the council) of Development Application D1485/03 for an integrated housing development containing 18 dwellings on 18 residential lots and one community lot.

The site 2 The site is Stage 5A of a staged subdivision, called The Point residential subdivision, approved by the Court in 2002. To the south it adjoins an existing residential area. To the north it adjoins vacant residential lots, which are Stage 6 of The Point residential subdivision. Further north is vacant land on either side of the Tramway Creek, which itself adjoins on its northern side the Cookson Plibrico industrial plant (the Cookson site). The plant, located at about 100m from the site, is a significant noise source and operates 24 hours, seven days a week.

The proposal 3 The applicant seeks to amalgamate six allotments of the approved The Point residential subdivision and re-subdivide them into 19 allotments, 18 of which are residential lots in a community title subdivision, while the remaining lot is a community lot containing the accessway. Concurrently with the re-subdivision of the lots, the applicant seeks consent for the erection of dwelling houses on the 18 residential lots. Plans and elevations for each dwelling form part of the application.

The issues 4 Both the first and second respondents submitted lengthy Statements of Issues that were similar, though not identical. All issues arise out of the need to mitigate the noise emanating from the activities of the Cookson site. Consultation between the acoustic experts retained by the three parties resulted in a high degree of agreement, thus reducing the scope of the dispute. The issues that remained at the commencement of the hearing were as follows: o Should the industrial noise be mitigated at the source (ie the Cookson site) or at the receptor (ie Stage 5A of The Point residential subdivision)? o Should intrusive noise goals be included within the noise criteria? o If yes, what are the appropriate goals for intrusive noise? o Should the conditions of consent dealing with noise mitigation by deferred commencement conditions? o Should the conditions dealing with noise attenuation apply also to the 2002 consent for the entire The Point residential subdivision? (This was an additional issue raised by the second respondent during the hearing that the Court could resolve without prejudice to the other two parties.) 5 The first issue may be determined by reference to planning principle that has general application.

Planning principle: noise attenuation 6 As a general planning principle, where there is conflict between a noise source and a sensitive receptor preference should be given to the attenuation of any noise from the source rather than at the sensitive receptor. This is true whether the noise source generated by a proposal is a new noise and the receptor exists or the noise generator exists and the receptor is a proposed use. In deciding whether the noise should be attenuated at the source, consideration should be given to the degree of conflict between the appropriate noise goals, the difficulty and cost associated with treating the noise at the source, the willingness of the noise generator to be treated and the potential amenity impacts associated with noise attenuation at the receptor. Depending on the circumstances of the case, the cost of attenuation measures may be borne by either party or shared between them, irrespective of the location.

Noise mitigation at source 7 Before the commencement of the hearing, the applicant's position was that acoustic treatment should occur on the site. The suggested method was a 2.4m high acoustic barrier and mechanical ventilation provided in rooms in which satisfactory noise levels could not be achieved with the windows open. However, during the hearing the three acoustic experts, Mr B Clarke, for the applicant, Mr A Jochelson, for the council, and Mr S Cooper, for the second respondent, agreed that treatment at the source, ie the Cookson site provided the best solution. 8 Of the measures proposed for the Cookson site, the only visible one would be a wall between 30 m and 100m, depending on the performance of the proposed noise attenuation for various pieces of plant. Based on the information submitted and the maximum length of 100 m, we have considered the visual impact of such a wall to be acceptable. There are no other reasons against mitigation at the source, since mitigation is technically feasible and its cost is reasonable (see Exhibit N) in the context of an 18-dwelling integrated housing development. On the other hand, mitigation within the area of Stage 5A would require some future residents to keep their windows closed and receive unacceptable noise levels outdoors. In our view, this is an unacceptable amenity impact on the future occupants of a new residential development. 9 Given that the expert consensus is consistent with the planning principle we have adopted, we find that the acoustic mitigation measures should be carried out at the Cookson site. The solicitors for Cookson Plibrico Pty Ltd have written to the applicant's solicitors stating that they consent to mitigation works being carried out on their clients' site.

Intrusive noise goals 10 Only Mr Clarke argued against the inclusion of intrusive noise goals on the basis that the site was an interface between industry and standards for suburban areas should not apply. Mr Jochelson said that intrusive noise forms the basis of the majority of noise complaints from residents. We find Mr Jochelson's evidence, with which Mr Cooper also agrees, persuasive. It is a common sense approach based on his experience that people complain most often about intrusive noise. 11 We turn to the appropriate criteria for intrusive noise levels. All experts agreed that this should be 5dBA above the background noise. Mr Clarke suggested that the background noise should include the operation of the plant. Mr Cooper and Mr Jochelson said that it should exclude it. They drew support for their position from the Environmental Protection Authority's NSW Industrial Noise Policy, which states at several places that the noise of the industrial plant should not be included in the background noise level. We accept Mr Jochelson and Mr Cooper's evidence. However, there was a difference between the two latter's position in that Mr Cooper assumed that the background for evening, night and day was the same, namely 39dBA. We do not think that this can be correct, since daytime background noise is higher than night-time because of regular activities such as traffic. For this reason we accept the criteria suggested by Mr Jochelson, namely 44dBA for night time, 46 dBA for evening and 49 dBA for day time, this being 5dBA above background as suggested by the Industrial Noise Policy. The appropriate criterion for sleep arousal is thus 54dBA, ie 15dBA above background.

Without prejudice conditions 12 The second respondent's counsel, Mr B Preston SC, submitted that conditions dealing with noise mitigation should be deferred commencement conditions. Neither the council nor the applicant agrees with this position. 13 If the acoustic conditions were made deferred commencement conditions, the applicant could not commence work on the proposal until all the mitigation measures had been put in place. In our opinion, this would impose an unnecessary hardship on the applicant without providing any major benefits. The consent is therefore not a deferred commencement consent. 14 Condition and 53.1 sets out the works to be undertaken at the Cookson site. Condition 53.1.1.1 requires a 30 m acoustic wall to be constructed along part of the southern boundary. The second respondent submits that the wall should be a minimum of 100 m in length to accommodate potential intermittent noise emissions. Since condition 53.2 requires additional works to be carried out (potentially including an increase in the 30 m acoustic wall) if the noise goals cannot be achieved, we accept the condition as proposed. 15 Conditions 53.1.2 to 53.1.5 specify the installation of discharge silencers to reduce specific levels of noise emitted from identified plant at the Cookson site. The second respondent requires the proposed reduction in noise levels to be measured at the nearest dwelling. The applicant maintains that this is not necessary as the overall noise goals are specified in other conditions. We accept the applicants submission and delete the reference to the noise levels being measured at the plant. 16 Condition 53.3 specifies work that the applicant shall not be required to carry out. Condition 53.3.3.3 relates to any works to attenuate noise generated by the factory operations that are outside the scope of lawful operations of the factory. The council seeks the deletion of this part of condition 53.3 as it is unnecessary. We accept this submission. 17 Condition 53.4.2 requires any noise sources during the evening and day time to be assessed at any dwelling. As the Industrial Noise Policy requires any noise source to be assessed at the residential property boundary the condition is amended to reflect this requirement.

Imposing the acoustic conditions on the 2002 consent 18 The second respondent's counsel, Mr B Preston SC, submitted that the acoustic conditions of this consent should be imposed retrospectively on the 2002 consent for the whole of The Point residential subdivision. The reason was that the 2002 consent granted by the Court was based on incorrect information. At that time the Court was told that the noise from the Cookson site occurred only between 7am and 3pm on weekdays. In Mr Preston's submission, if the applicant did not proceed with this consent, the acoustic measures required by this consent would not be implemented. 19 Neither the council nor the applicant agrees with this submission, on the basis that the acoustic conditions of this consent do not relate to the development that was the subject of the 2002 consent. In our opinion, this is the correct position. We would be committing an error of law if we imposed additional conditions arising out of this appeal on the 2002 consent.

Evidence of the Elder/Chairperson of the Wadi Wadi Coomaditchi Aboriginal Corporation 20 In the afternoon of the first day of hearing the Court received a letter from Mr Allan Carriage, Elder/Chairperson of the Wadi Wadi Coomaditchi Aboriginal Corporation, stating that he was not aware of the Court's visit to the site that morning and wished the Court to walk over the site with him. Neither Mr Carriage nor the Corporation are parties to the proceedings, nor have they sought leave to be joined or to intervene. As they have not lodged an objection to the development application, they were not notified of the site inspection. Despite this, the Court gave Mr Carriage leave to explain why he wanted the Court to walk over the site in his company. He gave evidence at 11 am. Mr Carriage said that the Aboriginal people he represents have a long-standing spiritual connection with the land over which the subdivision, of which Stage 5A is a part, extends. In his opinion artefacts may still be underground. 21 In response to a question from the Court regarding what he was seeking from the Court, Mr Carriage said that he could not answer the question without consulting his associates in the Corporation, though he indicated that one possibility may be leave to conduct smoking ceremonies over the land. Mr Carriage said that he would consult his associates and report the outcome to the Court at 3.30 pm. The Court excused him until 3.30 pm. Soon thereafter the Court received a further letter from Mr Carriage to the effect that he had "further business to attend to in Wollongong this afternoon" and that any decisions should be communicated to him through a member of the Registry's staff. 22 Given that Mr Carriage has declined to return to the Court at the time he was required to, we have to make a decision without the benefit of further evidence from him. It seems to us that there would be no benefit in a further visit by the Court to the site. Mr Carriage did not assure us that there would be anything for us to see to indicate that there are artefacts under the ground. We note that the site has been heavily modified as part of the subdivision works and road construction. We note also that the work was done under a s90 consent under the National Parks and Wildlife Act 1974 and that on 16 July 2002 the Court refused interlocutory relief to Mr Carriage on the basis that the s90 consent may not be valid (see Carriage v Stockland (Constructors) [2002] NSWLEC 117, unreported). A further site visit would cause delay, expense and inconvenience to the council and the applicant and it would be unlikely to provide any useful evidence for the Court to determine the appeal. 23 Notwithstanding the above, if members of the Corporation wish to carry out ceremonies on the site that do not disturb it, this may be acceptable to the applicant. Since the issue is outside the confines of the case, any negotiations will have to be carried out without the Court's involvement.

Conclusion 24 Clause 9(3) of Wollongong Local Environmental Plan 1990 (the LEP) provides that the Court shall not grant consent for development unless it is of the opinion that it is consistent with the objectives of the Zone No. 2(a)-(Low density Residential Zone). Relevantly, it is " to provide land primarily for detached housing with gardens in an environment free from commercial and unsympathetic activities and buildings" (Objective (a)) and allow activities provided "there will be no significant detraction from the character of the locality or the amenity of any existing or proposed development nearby" (Objective (b)(iii)). Clause 11(2) of the LEP also provides that consent shall not be granted unless the Court is satisfied that the development is consistent with one or more of the objectives of the zone. 25 Based on the acoustic evidence presented to the Court and the amendment of the application by the applicant to include appropriate noise attenuation measures, we accept that the proposed development is consistent with the relevant objectives of the Zone No. 2(a)-(Low density Residential Zone). 26 For the above reasons we conclude that the proposal should be approved subject to acoustic conditions that require treatment at the source, do not include noise from the Cookson site in the background noise and include criteria fro intermittent noise. Orders 27 For the foregoing reasons, the Orders of the Court are: 1) The appeal is upheld 2) Development Application D1485/03 for the resubdivision of lots 510, 511, 512, 513, 521 and 522 in the subdivision of Lot 236 in DP 104862 Aragan Circuit and Tramway Court, Bulli for an integrated housing development comprising 18 dwellings and 19 community title lots is approved subject to the conditions in Annexure A 3) The exhibits are returned with the exception of exhibits E, P and 107.

      Dr John Roseth
      Senior Commissioner

      G 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.