Land and Environment Court of New South Wales CITATION : Burgess v Gunnedah Shire Council [2010] NSWLEC 97 APPLICANT Christopher John Burgess PARTIES : FIRST RESPONDENT Gunnedah Shire Council SECOND RESPONDENT Dimidium Group Pty Ltd FILE NUMBER(S) : 40242 of 2010 CORAM: Pepper J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- modification application of development consent granted - modifications consented to were not of "minimal environmental impact" - consent orders made LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96(1A)(a) CASES CITED: Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 DATES OF HEARING: 11 June 2010 EX TEMPORE JUDGMENT DATE : 11 June 2010 APPLICANT Mr P Coady SOLICITORS Lorraine Boyce Solicitors LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr S Simington (solicitor) SOLICITORS Lindsay Taylor Lawyers SECOND RESPONDENT N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 11 June 2010 40242 of 2010 Christopher John Burgess -v- Gunnedah Shire Council and Dimidium Group Pty Ltd EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: The applicant, Mr Christopher Burgess, originally sought by way of summons filed 1 April 2010, declaratory relief in relation to a modified development consent (No 430591) granted by Gunnedah Shire Council ("the council") on 4 November 2009, on the basis that it did not satisfy itself that the modification proposed would be of minimal environmental impact within the meaning of s 96(1A)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). Mr Burgess also sought an order quashing the modified consent and injunctive relief against the council and Dimidium Group Pty Ltd ("Dimidium") from proceeding with the development the subject of the modified consent. 2 Mr Burgess and the council have now reached agreement as to the orders they seek for the Court to make. They are, first, a declaration that the council's decision on 4 November 2009 to modify the development consent is invalid, and second, an order that the decision be set aside and that the council pay the applicant's costs as agreed or assessed. I am satisfied on the evidence before me that it is appropriate to make the consent orders sought. 3 The second respondent, Dimidium, is not a party to this agreement and did not appear at the hearing before me to determine whether it was appropriate that the Court grant relief. 4 When the matter was last before the Court on 21 May 2010, an order was made that Mr Burgess inform Dimidium in writing of the orders made on that occasion setting the matter down for hearing on 11 June 2010. The council relied on an affidavit of service of Ms Lorraine Boyce, sworn 10 June 2010, in satisfaction of that order. Having read that affidavit, I am confident that Dimidium have been notified of today's hearing date. 5 Upon the commencement of the hearing there was no appearance by Dimidium. It was called three times outside the courtroom. Again there was no appearance by Dimidium. As a consequence, the hearing proceeded in its absence. Evidence in Support of Relief Sought 6 Because the Court should not make declaratory orders without being satisfied that those orders are appropriate, the parties have sought to tender sufficient evidence for the Court to attain the requisite level of satisfaction (Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 at [2]). 7 Both Mr Burgess and the council relied on a number of tendered documents in support of the application for relief. These documents disclose the following: (a) first, on 26 August 2009, the council consented to a development application for the development of an aviation training academy at Gunnedah from the Australia Asia Flight Training Academy ("the Academy") by Dimidium. The consent contained a number of deferred commencement conditions. In particular, condition A1.1 stated as follows: A1. In accordance with Clause 95(3) of the Environmental Planning and Assessment Regulation 2000, a twelve (12) month period is given from the date of the issue of the notice of determination to satisfy the Council in relation to the following requirements. Reason: To ensure compliance. 1. the developer must conduct a specific and detailed acoustic assessment that identifies dwellings where the following indoor design sound levels are exceeded as a result of the proposed development: Sleeping areas, dedicated lounges: 50 dBA Other habitable spaces: 55 dBA Bathrooms, toilets, laundries: 60 dBA This assessment must then document the extent to which any treatment of those dwellings might be required in order to achieve the indoor design sound levels outlined in AS2021-2000. Condition D1 and D2 stated as follows: D1. Hours of Operation The Australia Asia Flight Training Academy is permitted conduct aerial training six days per week, 52 weeks a year and 360 days per year. No training flights are to occur between 12:00noon Saturdays and 7:00am Mondays. Aircraft movements are also prohibited on Christmas Day, Boxing Day, Good Friday, Easter Sunday and Anzac Day. Reason: To ensure acoustic amenity. D2. Number of Flights The Australia Asia Flight Training Academy is only permitted to conduct 132 aircraft movements each day (note that a movement is a takeoff or landing). The academy is permitted to conduct 114 movements between the hours of 7 am and 6 pm and 18 movements between the hours of 6 pm and 10 pm. No aircraft movements are permissible between the hours of 10 pm and 7 am on any days. Reason: To ensure acoustic amenity. (b) second, on 7 September 2009, Dimidium lodged a s 96 modification application which included a priority commencement condition 1 in the following terms: PRIORITY COMMENCEMENT CONDITIONS 1. The developer must investigate potential noise remediation of all residential properties that are located inside the 65dB(A) contours included in the Figures 3 and 4 LAmax sound pressure levels on Runways end 11 and end 29 circuit included in Appendix M of the Environmental Impact Statement submitted by the proponent and forming part of the Development Application. These runways are the projected runways for in excess of 80% of training activity. A list of properties would be prepared by Council of identified residential properties and provided to the proponent. These are where residential occupation is approved and falling within the nominated contours and the owners are to be contacted by the proponent inviting them to have the assessment carried out. Should an invited owner not make the property available on the invited date(s) for noise testing then this condition will be seen to have been satisfied in relation to the said property. After the conduct of the testing a specific and detailed acoustic assessment of identified dwellings where the indoor design sound levels shown below are exceeded as a result of the proposed development a report is to be submitted to Council outlining the remediation works proposed, limited to roof insulation with appropriate R rated material and double glazing, required to achieve wherever possible the following target acoustic levels: Sleeping areas, dedicated lounges: 50 dBA Other habitable spaces: 55 dBA The works to mitigate any potential noise disturbance are to be completed prior to the occupation of the development by the proponent. By the insertion of this condition Council recognises that the BASIX condition related to airport noise and compliance to AS 2021-2000 relates to new construction and should Council receive applications for properties included in the contours defined above that BASIX compliance in this regard will be the responsibility of the residential applicant and in no way will any recourse be sought against the proponent of this Development Application or Gunnedah Shire Council. (c) third, the council consented to the modification application on 4 November 2009, and in so doing relevantly included conditions C8A, D1A and D2A: C8A. Prior to the commencement of the approved use, the developer must conduct a specific and detailed acoustic assessment within the predicted L max 60 dBA noise contours detailed in Figures 3, 4 and 6 on runways end 11, 29 and 35, included in Appendix M of the Environmental Impact Statement submitted by the proponent and forming part of the Development Application. Aircraft noise measurements shall be taken according to the procedures of AS2021:2000. A report shall be submitted to council, prepared by a qualified acoustical consultant, that clearly identifies all residential properties that are affected by a L max 65 dBA outside and inside noise levels. The report shall also identify any remediation treatment required to each affected dwelling in order to achieve the indoor design sound levels outlined in AS2021:2000. Remediation works shall then be carried out within the first 6 months of flight operations to dwellings where the following indoor design sound levels are exceeded as a result of the proposed development: Sleeping areas, dedicated lounges: 50 dBA Other habitable spaces: 55 dBA Bathrooms, toilets, laundries: 60 dBA Owners of potentially affected dwellings are to be contacted by the proponent, inviting them to have the assessment carried out. At least two days notice must be provided in the invitation before the proposed date of testing. Should an invited owner not make the property available on the invited date for noise testing, two additional invitations must be offered over the course of one month (i.e. owners to be given three chances). Should an owner decline to have the dwelling tested after the three invitations, then this condition will be seen to have been satisfied in relation to the said property. All costs incurred in fulfilling this condition are to be borne by the developer. Reason: To ensure acoustic amenity. D1A Hours of Operation The Australia Asia Flight Training Academy is permitted to conduct aerial training six days per week. The hours of operation of the Aviation Training Academy shall be restricted to 6:00am to 10:00pm Mondays to Saturdays. No training flights are to occur between the hours of 10:00pm Saturdays and 6:00am Mondays. Aircraft movements for the development are also prohibited on Christmas Day, Boxing Day, Good Friday, Easter Sunday and Anzac Day. Reason: To ensure acoustic amenity. D2A Number of Flights The Australia Asia Flight Training Academy is permitted to conduct an average of 143 aircraft movements each day (note that a movement is a takeoff, landing or touch-and-go). The academy is permitted to conduct an average of 125 movements between the hours of 6:00am and 6:00pm and an average of 18 movements between the hours of 6:00pm and 10:00pm. The period for calculating average daily aircraft movements is weekly. No aircraft movements are permitted to be conducted by the Australia Asia Flight Training Academy between the hours of 10:00pm and 6:00am on any days. The aerodrome at all times must be made available for general aviation and emergency use. Reason: To ensure acoustic amenity and availability of the aerodrome for community purposes. (d) fourth, the modification application consent was granted pursuant to an independent assessors reported dated 28 October 2009, prepared by Ms Megan Jamieson, Town Planner with GeoLINK Pty Ltd. That report stated at section 6 that: Generally, the modifications as proposed would be of minimal environmental impact. The potential exception relates to the proposed modification to deferred commencement condition 1, which requires detailed noise assessment and associated works to mitigate the effects of aircraft noise on nearby dwellings. If the requirements for this assessment are 'relaxed', there is a greater risk that the development might result in unacceptable noise impacts. 8 It appears that the requirements for this assessment were "relaxed" because a report complying with condition C8A was not submitted by council inasmuch as it did not clearly identify all residential properties that were affected by noise levels above the specified level. It followed that the report did not identify the remediation treatment required for each affected dwelling in order for there to be compliance with AS2021:2000. 9 Accordingly, as the council conceded, the council could not properly conclude in granting the consent that the modifications would result in "minimal environmental impact" (s 96(1A)(a) of the EPAA). 10 Furthermore, the original consent had limited the operation of the Academy to six days a week, 52 weeks a year, 360 days per year, but with no flight training to occur between 12 noon Saturday and 7 am Monday. In addition, the Academy was only permitted to conduct 132 aircraft movements, or flights, each day. 11 In the consent to the modification application, conditions D1A and D2A were modified to the effect that the hours of operation of the Academy were restricted from 6 am to 10 pm, thereby increasing the exposure to noise each day. The aircraft movements were also increased from 132 per day to an average of 143 movements per day. The latter increase resulted not only in a greater weekly average of movements, but permitted a potential maximum number of 1001 movements on a single day. 12 As a consequence, the council also conceded that as a result of the effect of modified conditions D1A and D2A, it could not be said that the modifications were of "minimal environmental impact". Conclusion and Orders 13 Having regard to the evidence before me, I am satisfied that it is appropriate that I make the orders sought. Accordingly, I propose to make the orders in terms of the consent orders that have been signed by the legal representatives for Mr Burgess and the council, which are as follows: 1. the first respondent's decision on 4 November 2009 to modify development consent no 387585 is invalid; 2. the decision of the first respondent made on 4 November 2009 referred to above be set aside; 3. the first respondent to pay the applicant's costs as agreed or assessed; and 4. the exhibit is to be returned. ********** 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.