Land and Environment Court New South Wales Medium Neutral Citation: Rydge v Byron Shire Council [2012] NSWLEC 155 Hearing dates: 12 June 2012; 13 June 2012 Decision date: 11 July 2012 Jurisdiction: Class 4 Before: Lloyd AJ Decision: 1.The summons is dismissed. 2.The applicants must pay the respondents' costs. 3.The exhibits may be returned. Catchwords: JUDICIAL REVIEW - development consent for functions - permissibility of the development - use of lot in strata plan - whether consent of owner's corporation required - consistency with objectives of the zone - acoustic impact. Legislation Cited: Byron Local Environmental Plan 1988 Environmental Planning and Assessment Act 1979, s 82A, Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Attorney General v Cooma Municipal Council (1961) 7 LGR (NSW) 115 Attorney General (NSW) v Quin (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Hillpalm v Tweed Shire Council [2002] NSWCA 332 Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; 119 LGERA 86 House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440 Kindimindi Investments Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, 138 LGERA 11 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; 91 LGERA 352 Owners Strata Plan 57762 v Pham [2005] NSWLEC 500 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 187 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 Category: Principal judgment Parties: Richard Anthony Ridge (first applicant) Terrence Mortimer O'Reilly and Helen Mary O'Reilly (second applicant) Byron Shire Council (first respondent) Timothy James Freedman (second respondent) Representation: Counsel Mr P R Clay SC /Mr M D Seymour (applicants) Mr C J Leggat SC/ Mr J L Doyle (second respondent) Solicitors Makinson & d'Apice (applicants) Marsdens Law Group (first respondent) Wall & Company Lawyers (second respondent) File Number(s): 40299 of 2012 Judgment 1"Barefoot at Broken Head" is a sprawling luxury villa, part of a complex of luxury villas adjacent to Broken Head Beach within the Shire of Byron. The complex, known as "The Pavilions", comprises seven strata title lots together with common property. 2Mr TJ Freedman (the second respondent) owns "Barefoot at Broken Head", which is lot 6 in the strata plan. On 23 May 2011 Mr Freedman made a development application to use lot 6 "for up to 35 functions (weddings and the like) annually with a limit of 70 guests per function". 3The Council initially refused consent. Mr Freedman then made an application to the Council to review its determination (s 82A, Environmental Planning and Assessment Act 1979). The Council reviewed its determination and on 1 March 2012 it granted consent to the application subject to conditions. 4Mr RA Ridge (the first applicant) owns lot 5 in "The Pavilions". Mr TM O'Reilly and Mrs HM O'Reilly (the second applicants) own lot 4. The applicants seek a declaration that the development consent for functions is void and an injunction restraining Mr Freedman from using lot 6 for functions. 5The applicants rely upon four grounds in support of their claim, each of which became the issues in the case: (i)The development is prohibited in the 2(t) Tourist Area Zone which applies to the land under the Byron Local Environmental Plan 1988 ("te LEP"). (ii)The Owners Corporation of the Strata Plan has not provided the owner's consent for the use of the internal driveway, being common property. (iii)The Council had not formed the opinion that the development is consistent with the objectives of the zone, as required by cl 9(3) of the LEP. (iv)The Council failed to take into account the acoustic impact of the development. 6Grounds (i) and (ii) in particular, if established, are said to be fatal - it would mean that the Council did not and does not have the power to grant consent. Prohibited development? 7The development control table for the 2(t) Tourist Area Zone under cl 9 of the LEP is as follows: ZONE No. 2(t) (TOURIST AREA ZONE) 1.Objectives of zone The objectives are - (a)to identify land for tourist infrastructure and to encourage tourist accommodation and facilities; (b)to permit tourist development and uses associated with, ancillary to, or supportive of, tourist developments including retailing and service facilities where such facilities are an integral part of the tourist development and are of a scale relative to the needs of that development; and (c)to control by means of a development control plan the location, form, character and density of permissible development. 2.Without development consent Bushfire hazard reduction. Om Amd.55 17/7/98 3.Only with development consent Agriculture; child care centres; clearing of land; clubs; community buildings; draining/ environmental facilities; hotels; home occupations; motels; places of assembly; purposes referred to in Schedule 4; recreation areas; recreation establishments; orads; tourist facilities; transport terminals; utility installations. Ins Amd. 1 14/7/89 omAmd. 55 17/7/98; om/ins Amd. 90 22/3/02; ins/om Amd. 103 14/11/03 4.Prohibited Any purpose other than a purpose specified in item 2 or 3. 8Mr PR Clay SC and Mr MD Seymour, appearing for the applicants, submit that the development does not come within any purpose in items 2 or 3 of the table and is thus prohibited. Mr CJ Leggat SC and Mr JL Doyle, appearing for Mr Freedman, submit that the proposed development is a tourist facility in item 3 of the table, and is thus permissible with consent. 9Since the answer to the question determines whether the Council had the power to grant consent, it is a jurisdictional fact which the Court must now determine for itself: Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707; 136 LGERA 288; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 at [130] - [131]. 10The LEP defines "tourist facilities" as follows: Tourist facilities means an establishment providing holiday accommodation or recreation and may include a boat shed, boat landing facility, holiday cabin, hotel, house-boat, marina, motel, playground, primitive camping ground, restaurant, water sport facility or a club used in conjunction with any such facility. Om/ins Amd.103 14/11/03 11Mr Clay SC submits that the definition has two limbs: (1) a requirement for "an establishment" providing holiday accommodation or recreation, and (2) a list of inclusive ancillary uses provided they are used in conjunction with the facility under the first limb. Mr Leggat SC submits that the definition has two limbs as follows: (1) an establishment providing holiday accommodation, or (2) an establishment providing recreation. The list which follows are instances of either of the former. Mr Clay counters by saying that the adjective "holiday" also applies to "recreation", so that the development must provide either (1) holiday accommodation or (2) holiday recreation; the list which follows are of ancillary uses which must be used in conjunction with the facility providing the "holiday accommodation or recreation" (as a compound term). 12In considering the width of the definition it is permissible to have regard to the context. The relevant context is the group of permissive purposes listed in item 3 of the zoning table for the 2(t) Tourist Area Zone. In this respect the objectives of the zone are of less assistance than the list of permissible purposes in item 3. In Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 a submission was made that a proposed development could not be the subject of a grant of consent because it was inconsistent with various objectives of the particular zone that would prohibit development. Beazley JA (Campbell JA and Handley AJA concurring) said, at [42]: I do not agree with the Council's submissions on this point. In my opinion, the trial judge erred in his approach and conclusions at [35] and [36]. Dealing first with [35], it is apparent that his Honour's reasoning is directed to the objectives of the zoning table. They are not provisions of the LEP that control development. Rather, they set the framework in which the LEP operates. The objectives themselves are not necessarily consistent, but reflect the conflicting demands upon development within the particular Local Government Area. 13The relevant context, therefore, is the list of permissible uses in item 3 of the table. As Spigelman CJ, speaking extra judicially, said: Context is always important. Take the statement: 'The chicken is ready to eat'. This either refers to a cooked chicken or a hungry chicken. The context alone will determine the meaning. (The Intolerable Wrestle: Developments in Statutory Interpretation, Hon JJ Spigelman AC, (2010) 84 ALJ 822 at 824) 14In addition to "tourist facilities" the list of permissible developments in item 3 of the table includes "recreation areas" and "recreation establishments". Each of these compound expressions is widely defined and need not necessarily be associated with tourism. 15I have noted Mr Clay's submission that within the definition of "tourist facilities" the list of particular uses which follow the words "holiday accommodation or recreation" are ancillary uses which must be "used in conjunction with such facility". I am unable to agree. The words "used in conjunction with any such facility" are part of the compound phrase "water sport facility or club used in conjunction with such facility". The only "facility" mentioned in the definition is "water sport facility". That is, the draftsperson has deliberately used the word "facility" so as to refer to "water sport facility". If it were intended to cover the other activities itemised in the definition then the draftsperson would have used the word "establishment" so that the concluding words in the definition would have read "used on conjunction with any such establishment". 16I find, therefore, that the various items listed in the definition, having regard to the language used and to the context, are examples of the kind of establishment which is within the definition, and which demonstrate the intended width of the definition. A proper reading of the definition is as follows: Tourist facilities means an establishment providing (i) holiday accommodation, or (ii) recreation... 17The width of the word "recreation" is demonstrated by the dictionary definitions, namely: activity done for enjoyment - sport and recreation facilities - Oxford Dictionaries Online 1. the process or means of representing or entertaining oneself 2. a pleasurable activityThe Australian Oxford Dictionary (1995) a pleasurable occupation of leisure time; an amusement or sport; a source of amusement; refreshment after toil, sorrow etcThe Chambers Dictionary (2002) 1 refreshment by means of some pastime, agreeable exercise, or the like 2. a pastime, diversion, exercise, or other resource affording relaxation and enjoyment 3. the act of recreating 4. the state of being recreatedMacquarie Dictionary (5th edition) 18Although the use of dictionaries must be viewed with caution, as noted by Mason P in House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440 at [25] - [29], all of the individual activities itemised in the definition fall within these dictionary definitions. Mr Leggat SC also relies upon the judgment of Jacobs J in Attorney General v Cooma Municipal Council (1961) 7 LGR (NSW) 115 in the following passage, at 201, and which I respectfully adopt: The word 'recreation' is a very wide word. The definition of it in the Oxford Dictionary is 'The action of recreating one-self or another, or the fact of being recreated by some pleasant occupation, pastime or amusement'. It seems to me that the obtaining of historical, geographical or topographical information by members of the public, whether they be local residents or whether they be tourists, is a recreation of those members of the public. It is not necessary that the information should aid the recreation of the public upon the area or only upon the area. It is sufficient if the obtaining of the information is a recreation. It is true that one tends to think of recreation in terms of physical or sporting activities, to the exclusion of the cultivation of the mind or the satisfaction of man's desire for knowledge. I do not think that any such limitation can be put upon the words. A public library is a source of public recreation in the same way as a public racecourse, even though it may not be frequented by as large a number of persons. 19I accept, therefore, Mr Leggat's submission that attendance at an enjoyable social gathering in a beachside setting with family and friends, whether as an incidence of holidaying or not, is within the scope of the word "recreation". Moreover, the Court is entitled to give weight to the opinion of the consent authority: Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 154 [45] - [50]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [88]. The evidence shows that the Council addressed the question at a meeting on 9 February 2012 and again on 1 March 2012 and, after debating the matter at some length, came to a considered view that the development was permissible as a tourist facility as defined. 20I conclude, therefore, that the proposed development is permissible with development consent. Owner's consent 21The Environmental Planning and Assessment Regulation 2000, cl 49(1) requires a development application to be made by the owner of the land to which the application relates, or by any other person with the consent in writing of the owner of that land. 22Access to lot 6 in the strata plan is by way of a bitumen driveway, being common property. The applicants say that the owner's consent was therefore required to be provided by the owners corporation of the strata plan, that the failure to have a statement of owner's consent meant that the Council did not have power to consider the development application and grant its consent, and that such failure is jurisdictional. 23The applicants rely on the judgment of Cowdroy J in Owners Strata Plan 57762 v Pham [2005] NSWLEC 500. In that case a development application was made to install a spray booth inside a factory unit in a strata plan. The application involved an excavation in the floor and refilling the excavation with reinforced concrete to a depth of 2000 mm. It also involved a chimney and air inlet and conduit through the roof. It was an agreed fact that the concrete floor and the roof of the unit comprised part of the common property of the strata plan. The body corporate complained that it had never approved of such work. Cowdroy J held at [32] that the identity of the land is not only revealed by the address shown in the prescribed development application form, and if the development application reveals that an essential part of the proposed development extends to other land, that that other land is also the subject of the application. His Honour held at [35] that the plans accompanying the application showed the excavation of the floor and the vents through the roof, all of which were in the common property, and in the absence of the consent of the body corporate the Council had no power to grant consent to the application. 24The decision of Cowdroy J is understandable in the light of the facts in that case. The proposed development included work which extended beyond the boundaries of the strata lot and included work within the common property. 25In the present case, however, no work is proposed beyond the boundary of lot 6. The development application describes the land to be developed as lot 6 in the strata plan. The development consent which has been issued describes the land to be developed as lot 6 in the strata plan. Moreover, condition 2 of the development consent expressly states: "The development is limited to the use of part of the tourist premises, being lot 6 SP 81554 only ..." 26The applicants rely upon the judgment of Preston J in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400. In that case the applicant had applied to erect a building for a mixed use comprising both residential and retail uses. The development application included land known as lot D, which was within a residential zone and in which shops were prohibited. The balance of the development site was in a business zone. The plans showed that it was proposed to construct an access to the underground car park with a boom gate and ticket dispenser within lot D, together with travelators linking the ground floor retail space (located in the business zone) to the car park (also located in the business zone) although circulation aisles in the car park were also within lot D. 27The applicant argued that the proper characterisation of those parts of the building in lot D was "roads", being a permissible use in the zone. Preston J rejected the argument. In his Honour's view the physical acts involved the erection of buildings to serve the retail purpose and were subordinate to that purpose. In holding that the use of lot D could not be described as a "road", his Honour said, at [45] - [46]: A common sense and practical appraisal of the relevant parts of the building in Lot D clearly shows they cannot be described as a road within the ordinary meaning of the word 'road'. Of course, on the driveways, ramps and the circulation aisles in the basement car park, vehicles can pass. So too on the pedestrian ramps, the travelators and in the forecourt area, pedestrians can pass. But, these facts do not make those parts of the building, in the way that they are intended to be used and would be constructed to be used, a road. The retail customers who drive their cars off Burlington Road down the driveway into the basement car park underneath the building containing the supermarket, collect their parking ticket from the ticket dispenser and park in car parking spaces especially provided for supermarket shoppers no doubt would not consider they had driven on a road since they left Burlington Road. The customers of the supermarket who are wheeling their supermarket trolley laden with goods purchased from the supermarket into the forecourt area and down the travelator especially provided for supermarket customers and their trolleys to their cars parked in the basement car parking spaces for supermarket customers would not describe the route they had passed as a road. 28This case is distinguishable from the facts in the present case. No development is proposed in the common property. The driveway is already in existence and serves the properties within the strata plan. It is a road (which is a permissible use in the zone) in the same way that the access driveway was held to be a "road" in Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202. In that case the applicant owned a battle-axe shaped block of land and intended to use it for a light industrial purpose. Although head of the land was within a light industrial zone, the access handle was in a residential zone in which light industry use was prohibited. Cripps J held that the construction and use of a road in the access handle could be properly characterised as being for the purpose of a road, notwithstanding that the vehicles using it would only be proceeding to and from the land zoned and used for light industry. 29In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; 91 LGERA 352, a development application was made for an extension to the North Sydney Club and the addition of residential units above the Club. Access to the Club was by right of way over adjoining land. The development application was not accompanied by the consent of the owner of the adjoining land. The High Court held that, since the development application was made to develop only the Club's land, it was the land to which the application "relates" and on which the specified development is proposed to be carried out. Accordingly, the want of consent of the owner of the adjoining land did not invalidate the application. 30North Sydney Council v Ligon 302 Pty Ltd was applied by the Court of Appeal in Hillpalm v Tweed Shire Council [2002] NSWCA 332; (affirming Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; 119 LGERA 86). In that case a development application was made to subdivide land known as lot 1. The only access to lot 1 was by way of a "proposed right of way 10 wide" over adjoining land and shown on a registered plan of subdivision. The Court noted the requirement that a development application may only be made by, or with the consent of, the owner of the land. The owner of the adjoining land had not consented to the application. The Court held that the application in respect of lot 1 did not "relate to" the adjoining land, and that what land an application relates to must primarily, if not exclusively, be determined by an examination of the terms of the application itself. 31In the present case the development application describes the land to be developed as lot 6 in the strata plan. The Council officer, reporting on the application in a memo to the Councillors and to the general manager on 21 February 2012, said: "owner's consent from the body corporate is not required if common property is not used for the proposal, other than for access". The development consent itself describes the land to be developed as lot 6 in the strata plan. Condition 2 of the consent states: "The development is limited to the use of part of the tourist premises, being only lot 6 SP 81554 ...". Moreover, condition 2A, set out below, was imposed to ensure that all activities are contained within the lot. 32That condition is as follows: 2ALoading within the premises All loading and unloading is to take place within the curtilage of the premises, that being within lot 6 SP 81554. All driveways and turning areas must be kep clear of obstructions at all times. 33The advice contained in the memo noted at [31] above is entirely consistent with the decision of Cripps J in Argyropoulos. I find that the land to which the development application relates is lot 6 in the strata plan, so that the written consent of the owners corporation was not required. 34In passing, I note that although the written consent of the owners corporation was not supplied, there is nothing in the evidence to suggest that it is opposed to the development. On the contrary, the minutes of the annual general meeting of the owners corporation held on 4 March 2011 show that the following resolution was passed: Resolved that the owners - Strata Plan 81554 SPECIALLY RESOLVE pursuant to section 47 of the Strata Schemes Management Act 1996 to made an additional by-law in the following terms: 1.owners may permit their tenants to host special occasions where non-staying guests attend a function 2.non-staying guests will depart the function by 10 pm. Failure to consider the objectives of the zone 35Clause 9(3) of the LEP states: "Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out." 36I accept, of course, the applicants' submission that cl 9(3) required the councillors to form a positive opinion that the proposed development was consistent with the relevant objectives. I also accept the applicants' submissions that satisfaction of such a precondition is less readily found and an inference of failure to do so is readily found, in the absence of any evidence that the precondition was addressed by the council: Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321, at [40]. 37The onus is, of course, upon the challenger to show that the council failed to reach the opinion described in cl 9(3). The absence or presence of the necessary opinion can be demonstrated by the material that was before the council when it made its determination and in particular any reports which were either actually or constructively before it. In this case the planning report in the s 82A review, following the council's earlier refusal of the application sets out the objectives of the relevant zone, and then sets out the following: "Tourist facilities are permissible within the subject zone but dwellings are prohibited. Whilst the proposed use could be defined as being consistent with the zone objectives and that this particular zone is a suitable zone for such a use, the uses within the site (as consented to by the department) are not consistent with the subject zone objectives. This conclusion is reached as the context of the subject 'tourist facility' included strata subdivision. This has created a use which is vastly more residential in nature from what would typically be classified as a 'tourist facility'. As such the adverse impacts created by the current proposal are significantly enhanced as a result of the impacts in the residential nature of the current use. Despite the adverse impacts identified above, the proposed use is considered to be consistent with the zone objectives of the Tourist Area Zone." 38The fact that the council had before it the report the full text of the relevant objectives of the zone together with the above assessment and conclusion suggests that in determining to give its consent, the council accepted the report. In short there is no evidence to support the applicants' submission that the council failed to consider the objectives of the zone or that it failed to form the opinion called for by cl 9(3). The evidence is to the contrary. This ground of challenge fails. 39In passing I note that the applicants also contend that if the necessary opinion was formed, then that formation of opinion was manifestly unreasonable. The submission was not developed and I need say nothing more about Wednesbury unreasonableness other than to note that the test is stringent : Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 187; the decision must amount to an abuse of power : Attorney General (NSW) v Quin (1990) 170 CLR 1; or so devoid of plausible justification that no reasonable person could have taken that course: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; or be "illogical; irrational or lacking a basis in findings or inferences of fact on logical grounds" : Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, 138 LGERA 11; or the decision amounts to "something to absurd that no sensible person could ever dream that it lay within the power of the authority" : Wednesbury itself: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 at 229. The applicants do not demonstrate how the opinion infringes these tests. In applying these principles I find that the development is, at the very least, clearly supportive of tourist developments. Failure to take into account the acoustic impacts 40One of the conditions of the development consent granted by the council is condition 15, which is as follows: "15.Acoustic report The applicant shall engage a suitably experienced and qualified acoustic consultant to assess the site in relation to all likely noise sources, detail all options available in consideration of the Industrial Noise Policy (EPA), and prepare a noise management plan. Such a plan to be provided to council, and form part of the overall management plan for the property." 41The applicants submit that the acoustic impact of the development was a relevant consideration under s 79C(1)(b) of the Act, namely, the likely environmental impacts of the development. Whilst accepting that the preparation of a noise management plan is an acknowledgement that there are acoustic impacts to be managed by such a plan, the requirement under the condition for an acoustic consultant "to assess the site in relation to all likely noise sources, detail all options available in consideration of the Industrial Noise Policy ... " is said to demonstrate a failure to take a relevant matter into consideration. 42It is necessary, therefore, to examine the council's consideration of the question of noise. The statement of environmental effects which accompanied the development application included a management plan for functions. In relation to noise the management plan states: "4.1 No noise permitted between 10 pm to 8 am. Decks and pool to be vacated between 10 pm and 8 am. (Noise means any sound that can be heard from neighbouring properties that disturbs their peace and quiet). 4.2 Tenants must not create any noise on arrivals and departures throughout their stay. 4.3 The curfew for acoustic noise (eg guitarist and vocal, jazz trio with no drums, string quartet) is 8.30 pm on Friday and Saturday night, and sunset on other nights. 4.4 The house music system can be used for background music until 9.45 pm. 4.5 Bottles to be put in recycle bins the morning after the event not on the night. 4.6 In addition to the gate attendant's presence, the premises are registered with the HL0 security service and all neighbours have the contact number of the security hotline. Two strikes and the tenant's stay is terminated". 43Arguably related to the impact of noise is traffic and parking, which is also the subject of the management plan proposed for functions: "5.1The owner will provide a gate attendant for each event who will monitor traffic and parking. 5.2All non-staying guests will arrive and depart by bus arranged by the owner, or taxi arranged with the gate attendant. 5.3Parking within the estate is limited to three cars - two in the garage and one for disabled persons in the disabled car park. 5.4Catering staff are required to arrive via taxi or be dropped off and picked up from the venue". 44An assessment report prepared by the Council's Environmental officer notes that noise from the proposed development has the potential to impact upon the amenity of adjoining neighbours. The report then continues: "The Management Plan proposed by the applicant (contained in the Environmental Statement of Effects prepared by Rob Doolan dated May 2011) outlines strategies to minimise potential noise issues. However, the adequacy of the plan has not yet been confirmed given technical data (noise sources and levels) have not been made available to Council's Environmental Officer. Therefore, to allow for an accurate assessment of the proposed development, it is recommended that an acoustic assessment be undertaken by a suitably qualified consultant to determine the extent of potential noise impacts on surrounding residences, and the provision of any appropriate noise mitigation measures." 45In accordance with the recommendation, Mr Freedman obtained and provided to the council a noise impact assessment report prepared by acoustical engineers, Mr S T Grieve and Mr R T Benbow, of Benbow Environmental. The report states that "tests at the site over a period of nine months indicate that the typical proposed function will be within the criteria recommended". The report, however, concludes with the following recommendations: "There are available ameliorative measures that could be considered and included in the development consent. • Restrictions on the hours of operation with activities relating to a wedding function concluding at 10 pm. • It is beneficial for neighbours to know what to expect. Future functions could be restricted to weekends. Weddings are booked 6 - 12 months in advance so all neighbours could be apprised of the schedule. • Having a sound system of the minimum necessary size for small functions (we suggest 150 watts) kept on site, with outsourced PA systems banned. • Prepare a plan of noise management for the use of this townhouse and the operation of 'The Pavilions". 46The Benbow noise impact assessment was then the subject of a further assessment by the Council's Environmental Officer who produced a report which was a critique of it. The report recommends that the applicant for consent be requested to provide additional information (the nature of which is then set out). The report concludes : "The information provided to date indicates that the proposed development cannot be supported by Council's EHO. However in the absence of sufficient technical information a complete assessment of potential acoustic impacts is not possible. Consideration of any additional information should then be undertaken before finalising the environmental assessment". 47Mr Benbow then provided further information to Mr Freedman and which was in turn provided to the council. The council's internal report on the s 82A review application sets out part of that additional information. The report states : "Matters of Different Opinion Interpretation on what is acceptable noise level and correct definition of the type of land use are matters of critical importance and our opinion differs from Council officer's view point that the tourist zone is considered for noise as a rural residential land use type in accordance with the NSW EPA Industrial Noise Policy (INP). Such a comparison is erroneous as a rural residential zone has a residence on large land holdings and not with several immediate neighbours with common boundaries. The proposed use of adjacent residences within this tourist facility for recreational use would generate higher noise levels that expected in a rural residential zone. The solution to permit this development would be the following: - Set a boundary noise limit that is feasible, practical and reasonable given the use of adjoining residences for tourist purposes and hence a higher noise level that expected at residences; - Set an internal noise level that the "boutique" wedding reception needs to achieve; and - Allow for a landscaped courtyard wall to be built which would provide adequate protection for the use of adjoining residences". There are a few problems with the above statement made by 'Benbow Environmental' which are detailed below: 1. The surround uses are not all used for tourist purposes, the closest neighbour to the proposal is not even located with the Tourist Zone and has consent for the use as a dwelling. 2. The application has not proposed a landscaped courtyard wall and to suggest that one is required, further emphasises that the application as currently proposed has unacceptable acoustic impacts on surrounding properties. As such this reasons for refusal has not be adequately addressed. 48It seems that there was then a site visit by the Council's Team Leader, Environmental Services who, in a report to the Council's Assessment Officer states : "Previously Council had received complaints from neighbours in relation to "offensive" noise emitted from weddings and functions conducted on the subject property. The unique layout of buildings on this property, and neighbouring properties has reduced the spatial separation between noise sources and neighbouring residential properties. The locality in which the property is situated has generally 'low noise' characteristics with traffic noise, wind through the trees and breaking waves the dominant feature of the locality. All of these issues indicate that the conducting of any activities on the property that included amplified music is highly likely to interfere with neighbourhood amenity. Even if all noise sources could be kept low (i.e. below 70 dB(A)), the limited attenuation available due to the close proximity of nearby homes is still likely to result in clearly audible and possibly intrusive noise into neighbours residences. It also appeared to be impractical to design and install acoustic barriers which might attempt to limit the noise from amplified entertainment, microphone and dancing/dining and associated activities. The most effective option would be to create a noise 'bunker' around the entertainment building but this would defeat the core attractions of using such a facility in this location. Condition: (Prior to issuing Occupation Certificate/Before commencing activity) The applicant shall engage a suitably experienced and qualified acoustic consultant to assess the site in relation to all likely noise sources, detail all options available in consideration of the Industrial Noise Policy (EPA), and prepare a noise management plan. Such plan to be provided to Council, and form part of the overall activity management plan for the property. (At all times) The applicant shall ensure that no "offensive noise" as defined under the Protection of the Environment Operations Act 1997 is permitted or caused which is likely to harm the peace and quiet of residents on neighbouring properties". 49The report was considered at the council meeting held on 1 March 2012, at which the council decided to grant its consent. The transcript of the council meeting, which is in evidence, shows that the application was debated, including an extensive debate on the issue of the noise impact. This shows that the councillors were alive to the issue and gave it their consideration. The discussion during the debate included a question by a councillor as to whether the requirement to produce a management plan in condition 15 should include a reference to the objective requirements of "the GEOE " (which I infer is a typographical error which should read "the PEOE" - being the Protection of the Environment Operations Act). The relevant council officer (Mr Darney) then said: "Darney : That's the opinion of the Noise officer but again I believe that's covered by the conditions that I previously outlined to you in that regard to condition 19. Those words are dragged directly from that section of the Environment Operations Act 1992. Councillor : Yes thank you you've put it in the 19th". 50The extensive debate by the councillors resulted in the granting of consent, which includes the following conditions relating to noise in addition to condition 15 : "19. No interference with amenity of neighbourhood, as follows The proposed use must not be conducted in such a manner as would interfere with the amenity of the neighbourhood. The applicant shall ensure that no "offensive noise" as defined under the Protection of the Environment Operations Act 1997 is permitted or caused which is likely to harm the peace and quiet of residents on neighbouring properties. 20. Maximum number of events per year Use of the subject allotment is limited to 14 functions per year. 21. Maximum number of guest per function There is to be a maximum of 70 guests per function. 22. No live amplified music No live amplified music, no third party-provided speakers, DJs, are permitted at any time during any function. ... 26. Loading noise Noise generated from loading and unloading must not exceed background noise levels by more than 5 d(B)A when measured at the boundary of the allotment. ... 28. Restricted hours of operation The hours of operation are to be limited to between 8am to 9pm for the 14 functions per year. All functions must cease at 9.00pm. 51The Councillors are not, of course, required to adopt any recommendations made by the council officers, but may after due consideration bring their own views to this or any other issue. Of course, the issue of noise, or any other relevant issue, must be more than adverted to or given mere lip service : Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 at [58]. It cannot be said that the issue was given mere lip service here. The issue was clearly considered by the council. Substantial other conditions noted at [50] above, were imposed, the effect of which is to put objective constraints on the content of the management plan referred to in condition 15 and which was extensively discussed at the council meeting. A reading of the transcript of the council meeting shows that the council was satisfied that the impact of noise, subject to those additional conditions, was satisfactory. Condition 15 requires the preparation of a noise management plan which is to form "part of the overall activity management plan for the property". The applicants make no complaint about the requirement to have an overall management plan for the property. None of this demonstrates a deferral or failure to take a relevant matter into consideration. 52The applicants rely upon Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 in support of a submission that by imposing condition 15 the council left unresolved the impact of noise; that is, the council failed to come to grips with the issue or give proper, genuine and realistic consideration to the issue. The evidence to which I have referred, however, shows that the council did in fact come to grips with, and give proper, genuine and realistic consideration to, the issue. 53In Kindimindi Investments Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 Basten JA (Handley JA and Hunt AJA concurring) referred to the "proper, genuine and realistic consideration test", His Honour said at [74] : "That terminology is taken from the judgment of Gummow J in Kahn v Minister for Immigration and Ethnic Affairs (1987) ALD 291, reiterated in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483. However, this terminology should not be turned into an assessment of the adequacy of the consideration accorded to particular case. 54Basten JA also said, at [79] that the use of such terminology, as noted in Bruce v Cole (1998) 45 NSWLR 163, risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. In the same vein, in Anderson v Director General of the Department of Environment and Climate Change, Tobias JA (Spigelman CJ and Macfarlan JA concurring) said in relation to the "proper, genuine and realistic" formulation and other formulations such as the requirement of consideration "in a real and conscientious way" : "It is obvious that their use is fraught with the danger of a slide into impermissible merit review. I would therefore prefer that they be avoided" (at [57]. 55I therefore do not accept this ground of challenge. The applicants having failed on each of the grounds upon which they rely to challenge the validity of the development consent, it is appropriate that I make the following orders. ORDERS: 1.The summons is dismissed. 2.The applicants must pay the respondents' costs. 3.The exhibits may 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. Decision last updated: 11 July 2012