Land and Environment Court New South Wales Medium Neutral Citation: Freedom Development Group v Willoughby City Council [2020] NSWLEC 1037 Hearing dates: 28-29 November 2019; written submissions 9, 19, 20 December 2019 Date of orders: 28 January 2020 Decision date: 28 January 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The Court notes that the Applicant was granted leave to rely on amended plan and material during the hearing of the matter on 28-29 November 2019. (2) That the Applicant is to pay the Respondent's costs thrown away as a result of the grant of leave in (1) for the period 5 July 2019 to 29 December 2019 (inclusive). (3) The appeal is dismissed. (4) Development Application No. 2018/191 for the construction of a 31 room boarding house at 16 Warners Avenue, Willoughby (Lot 13 DP 35206) is refused. (5) Exhibits are returned with the exception of Exhibits 3, 4, A and B. Catchwords: DEVELOPMENT APPLICATION : Proposed boarding house – amended plans – impact on adjoining neighbours – acoustic impacts – costs- public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2004 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Willoughby Development Control Plan 2016 Willoughby Local Environmental Plan 2012 Cases Cited: Al Ali v Canterbury Bankstown Council [2019] NSWLEC 1115 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Gow v Warringah Council [2013] NSWLEC 1093 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Moscaritolo and Anor v The Hills Shire Council [2013] NSWLEC 1014 Prillis v Marrickville Council [2012] NSWLEC 1348 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Texts Cited: Noise Guide for Local Government Category: Principal judgment Parties: Freedom Development Group (Applicant) Willoughby City Council (Respondent) Representation: Counsel: R O'Gorman Hughes (Applicant) Solicitors: Conomos Legal (Applicant) K Gerathy, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/00243687 Publication restriction: No Judgment Nature of the Appeal and Outcome 1. COMMISSIONER: The applicants lodged Development Application No. D/2018/191 on 22 June 2018. As amended, the Applicant seeks consent for construction of a 31 room boarding house plus manager's room (accommodating a total of 52 persons) with basement parking for sixteen cars. The development is proposed at 16 Warners Avenue, Willoughby. 2. The Council refused consent on 25 September 2018. The applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). 3. The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act and the proceedings were listed for hearing. 4. By Notice of Motion the Applicant sought leave for amended plans before the commencement of the hearing. Leave was granted by the Registrar of the Court in July 2019 and the amended plans were notified by the Respondent. 5. During the proceedings leave was also granted to the Applicant for further amended plans and further technical and supporting material. The granting of leave was not opposed by the Council subject to the Respondent seeking the Court to make an order for the Applicant to pay the Respondent's costs thrown away for the assessment of this material: s8.15(3) of the EPA Act. The relevant materials are listed in paragraph [118]. 6. The Council maintains that the proposed development, as detailed in the amended plans, should be refused by the Court on the following grounds: 1. The Court cannot be satisfied that the development is compatible with the character of the local area, having regard to the noise impacts of the proposal arising from the intensity of the use in the residential context; 2. the Court cannot be satisfied the proposal will have an acceptable amenity outcome for adjoining properties due to deficiencies in the acoustic assessment and uncertainty of the mitigation measures. The Site and Locality 1. The subject site is Lot 13 DP 35206, 16 Warners Avenue, Willoughby. The site has an area of 923.3m² and slopes from the street to the rear of the lot. 2. The rear yard has been previously levelled and there are stepped retaining walls adjacent the boundaries to support the raised levels. 3. Warners Avenue and the surrounding properties fronting Edinburgh Road, Eastern Valley Way and Mowbray Place are zoned R3 Medium Density Residential. 4. The built form of the adjoining developments to the east, west and opposite the site are individual residential dwellings. To the west of the site, at 20-22 Warners Avenue and 19-23 Warners Avenue are community housing developments of two storeys. 5. The site at 7-9 Warners Avenue has consent for six three storey attached houses. Planning Controls 1. The provisions of State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) apply to the site and the proposed change of use. The applicant has prepared site contamination and investigation reports (Exhibit E and Exhibit M). The recommendations of these reports, in part, conclude that the site is suitable for the proposed use meeting the requirements of Clause 7 of SEPP 55. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certification (Exhibit N) in compliance with the instrument. 3. The proposed development satisfies cl 26 of State Environmental Planning Policy (Affordable Rental Housing) 2004 (SEPP ARH) as the land is zoned R3 Medium Density Residential pursuant to Willoughby Local Environmental Plan 2012 (LEP 2012). Accordingly, SEPP ARH applies. Boarding Houses are permissible with consent in this zone. 4. The proposed development satisfies the standards detailed at cl. 29 and cl. 30 of SEPP ARH. 5. Pursuant to cl. 30A of SEPP ARH the consent authority is required to give consideration to whether the design of the proposed development is compatible with the character of the locality. The satisfaction of cl 30A was the subject of evidence and submissions in the proceedings. 6. The proposed development is compliant with the development standards in LEP 2012. 7. The proposed development is subject to the provisions of Willoughby Development Control Plan 2016 (DCP 2016). Specific controls for Boarding Houses are at part G.2 of DCP 2016. At (7) of that part of DCP 2016 it states: Owners and managers of boarding-houses are responsible for the orderly operation of the premises and conduct of the boarders to ensure that the amenity of the neighbourhood is maintained particularly in terms of privacy of adjoining properties and noise generation and to provide amenity for boarding house residents. A Plan of Management is to be submitted with any Development Application for a boarding house. This Plan must be updated at least annually, maintained and adhered to for the operation and management of the boarding house. The Plan must contain (but is not limited to) actions in regard to: - management of the common room and communal open space; - anti-social behaviour handling procedures; - security and visitor to the premises; - use of basement level and corridors, - waste collection and management, - complaint handling procedures, - administration, - monitoring and review of management actions; - cleaning, - repairs and maintenance. The Plan must contain relevant provisions that ensure compliance with Boarding Houses Act 2012, Boarding House Regulations 2013 and other relevant legislation. All future residents of the boarding house must receive the latest copy of the Management Plan and a copy must be kept at the premises at all times and made available to Council upon request. Public Submissions: 1. In accordance with the provisions of the DCP 2016, the development application was notified to adjoining and nearby properties. 2. The objections concerning the proposed development raise the following main issues: * The proposal is an overdevelopment of the site, demonstrated by the exceedance of the 1.2:1 FSR permitted under the SEPP and the FSR of 0.7:1 permitted under LEP 2012. * The proposed development is five stories in an area zoned for a maximum of three storeys. * The proposed development will result in increased demand for parking and will generate traffic impacts. * The design is more akin to a residential flat building with self-contained units than a boarding house. * The proposal is not compatible with the existing character of the area. The submission notes that the Council has strictly enforced building heights in the past to maintain the character of the street. * The development will have unacceptable physical impacts on the surrounding properties concerning overshadowing, overlooking, light spill, noise, excessive bulk and scale, setbacks and visual intrusion. The adjoining residents are concerned that the development will create privacy impacts for them. * The number of bins required to be placed on the street/kerb to accommodate the waste generated is unmanageable. Bins should not be routinely placed in the frontage of adjoining properties. * The site is located within an Affordable Housing Area identified in LEP 2012, however, the provisions of LEP 2012 exclude boarding homes. * The sizes of three of the proposed boarding rooms do not comply with the requirements of the SEPP. * The site was the subject of significant filing to level the backyard and this fill should be tested for contamination under the provisions of SEPP 55. * Any clause 4.6 variations for height and FSR cannot be justified as the proposal does not meet the objectives of the development standards or the zone. * The development fails to meet the aims of DCP 2016 at Part A.3. * A Plan of Management (POM) has not been submitted with the development application as required by DCP 2016. * The DA contains inaccuracies including stating the site area to be 957.3m² when the survey plan notes the site area as 923.2m²; the shadow diagrams are inadequate to assess the impacts, and the roof windows of 14 Warners Avenue are not shown. * The landscaping within the front setback does not comply with the requirements of the SEPP and is not consistent with the local character. The proposed development will distract from the streetscape. * Excavation of the proposed basement extends to the boundary of the adjoining properties. * The proposed development has the potential to exacerbate existing social problems in Warners Avenue. The submission notes that 25 units in Warners Avenue are rent out by the Department of Housing and the remaining 25 properties are single dwelling accommodation. * The development does not comply with access requirements. * The car lift is inappropriate. * The proposed development provides a lack of amenity for future residents. 1. These issues were reiterated in the onsite evidence provided by members of the public at the commencement of the proceedings. Expert Evidence: 1. As part of the preparation for the proceedings Ms McMillan and Mr Polvere, the town planning experts for the Respondent and the Applicant respectively met and joint conferenced on the planning contentions. These experts produced a joint report which was tendered as Exhibit 5 in the proceedings. 2. At the commencement of the hearing the proceedings Ms Gerathy, for the Respondent, notes that the planning contentions between the parties are resolved, with the exception: 'from a planning perspective the issue of acoustic impact and necessary mitigation, and what mitigation measures may look like or involve having regard to the constraints of the site (that) remain unresolved' (Respondent's submissions, 19 December 2019 pg. 3) 3. The principal issue remaining in the proceedings is the potential for adverse acoustic impacts arising from the proposed development and its use. The acoustic experts in the proceedings are Mr Cooper and Mr Zaioor, for the Respondent and the Applicant respectively. These experts produced a joint report which was tendered as Exhibit 6 in the proceedings. 4. The evidence of the acoustic experts centres on three key areas: firstly the setting/ determination of relevant acoustic criteria; secondly the determination of the existing background noise level; and finally the mitigation measures. Background noise levels: 1. The acoustic experts disagree as to whether the acoustic assessment has been undertaken appropriately, in particular, whether the relevant background noise levels have been determined correctly. 2. The Revision 5 Acoustic Report (Exhibit D) includes results for background noise from two locations: Point A on the eastern boundary of the subject site adjacent the residential property at 14 Warners Avenue and Point B within 31 Garden Place which a common boundary to the south of the site. 3. Mr Cooper's evidence is that no background noise levels were taken at 18 Warners Avenue (the residential property on the western side of the proposed development) at relevant receiver locations. In his acoustic assessment, Mr Zaioor has utilised the measurements taken at Point A (adjacent the eastern boundary) as an assumed level for the receiver at 18 Warners Avenue. Mr Cooper argues that such adoption of an assumed level from different locations is not an acceptable methodology to apply. Further, Mr Cooper's evidence is that the analysis of the background noise level has been not been undertaken correctly in part due to there being 'no correlation of wind speed at the microphone versus BOM data and there are no weather details in relation to (the) monitoring at Location A' (Exhibit 6). 4. Relevantly the western boundary is the proposed location of the communal room and communal open space. 5. Mr Cooper argues that the number of background noise measurements completed is insufficient. 6. When the written and oral evidence is viewed in totality the experts agree that the Noise Guide for Local Government (Noise Guide) outlines the methodology for the calculation of background noise. The Noise Guide details the following: Background noise measurement should only be done at times or locations unaffected by noise from the source under investigation. To do this, measure the background noise level continuously for 15 minutes, excluding all distinct extraneous noises. If extraneous noise is present, pause the meter when this occurs, choose another measuring time or restart the measurement at another location with an equivalent land use. 'Extraneous' noise in the context of measuring background noise is noise resulting from activities that are not typical of the area. Atypical events may include construction activities or traffic generated by holiday periods or special events, such as concerts or sporting events, or even a person having a conversation near the active sound level meter. Normal daily traffic is not considered to be extraneous noise. The background noise level for assessment purposes is usually the LA90 (15 minute) level measured by a sound level meter. If more than one valid measurement of the background noise for a location is obtained, use the lowest reading as the background noise level. If the measured background level is less than 30 dB(A), the background noise is usually taken as 30 dB(A). The procedure of taking a number of 15-minute readings and then selecting the lowest reading produces a value called 'lowest background noise' level. Knowing what this level is allows you to more accurately assess the impact of the noise under investigation as it is likely to have its greatest impact when background noise is low. All background noise measurements must be taken during the times of the day when the noise under investigation would be operating but this noise must not affect these background noise measurements. (Exhibit 1) 1. The Noise Guide also states that when measurements of background noise are being taken observations of weather should be taken. Mr Cooper argues this was not done, affecting the reliability of the background noise level reading at Point A. Acoustic Criteria: 1. In addition to the joint report with Mr Cooper, Mr Zaioor has produced several acoustic assessment reports for the proposed development. The acoustic report on which the Applicant relies is Revision 5 (Exhibit D). That report notes that 'if sound from music and TV are played inside the guest room or common room at (a) reasonable level, then the noise transmitted into the most affected residences will comply with the criteria allowed as per Section 4 of this report, provided noise control recommendations in Section 6 are also adhered to' (Exhibit D). 2. The noise criteria referred to in the above conclusion are nominated in the Revision 5 report as: Point A Daytime (7am – 6pm): 45dB(A) Evening (6pm-10pm): 44dB(A) Nightime (10pm – 7am): 36dB(A) Point B Daytime (7am – 6pm): 44dB(A) Evening (6pm-10pm): 46dB(A) Nightime (10pm – 7am): 38dB(A) (Exhibit D) 1. Further, the acoustic experts agreed that the overall noise target for any noise arising from the site should achieve a criteria of background noise + 5dB(A), and a background noise + 15dB(A) between the hours of 10pm and 7am Monday to Saturday and 8am on Sundays and Public Holidays. Relevantly, the application of these targets result in the following sleep disturbance criteria: * 54d(A) outside the window of the residential receiver at 14 Warners Avenue (east) * 52dB(A) outside the residential receiver at 31 Gardens Place (south). Noise Levels generated: 1. The Revision 5 Report notes that the major noise sources generated by the proposed boarding house are: * noise from occupants vehicles in the basement carpark * noise from music and television in boarding rooms and the common room * noise from entertainment in the common room and outdoor communal space * noise from air-conditioning units, pumps, compressors and mechanical plant. 1. The experts and the parties are agreed that the mechanical noise from the proposed development is appropriately dealt with by the following proposed conditions, which state in part: Noise Mechanical Services To minimise the impact of noise onto receivers on surrounding land, all mechanical services shall be designed to ensure 'offensive noise', as defined under the provisions of the Protection of the Environment Operations Act 1997, is not emitted from the development. Details of the proposed equipment, siting, appropriate noise criteria and any attenuation required shall be prepared by an appropriately qualified acoustic consultant and accompany the application for a construction certificate. Acoustic Works – Report … Compliance with the following noise limits: - The use of the outdoor areas, the driveway and operation of all mechanical plant when assessed as a cumulative noise Leq, 15 min contribution when assessed at any point on adjacent residential properties fronting Warners Avenue does not exceed 45dB(A) in the day period, 45dB(A) in the evening period, or 36dB(A) in the night time period as defined in the EPA's Noise Policy for Industry. … Noise Emissions – Equipment Prior to the issue of any Construction Certificate, certification shall be provided from a suitably qualified acoustic engineer certifying that the noise from all sound producing plant, equipment, machinery and/or natural ventilation systems has been carried out in accordance with the relevant Australian Standards or alternative solution. (Respondents Draft Conditions, filed 20 December 2019) 1. The noise sources that are in contention between the experts are: firstly the noise from music and television in boarding rooms and the common room; secondly noise from entertainment/people in the common room and outdoor communal space; and finally the management of noise from vehicles standing in the driveway before entry to the car lift. 2. An earlier version of the Acoustic Report, prepared by Mr Zaioor (Revision 3) states the following: * Noise from amplified music inside boarding rooms can reach 'approx 100 dB(A) at 1m from the centre of source' * the report references a 'public health study of social noise' which concludes a preferred listening level of 74 dB(A), which is adopted as the level of noise generated from the boarding room. * the report states the most affected residence being 18 Warners Avenue. (Exhibit C) 1. The Revision 3 report concludes that: if sound from music or TV are played inside the guest rooms or common room at a level of or close to 74dB(A); the noise transmitted to the most affected residence will comply with the criteria set by the report; if the noise control recommendations are complied with. 2. The predicted noise from the common room (with 15 people), and the outdoor communal space (10 people), are not demonstrated by calculation but the report includes tabulated results that demonstrate the criteria is met at the most affected residences, again if the noise control recommendations are complied with. This report, Revision 3, assesses the most affected residences (or nearest residential receivers) as 31 and 33 Garden Place and west of the site at 18 Warners Avenue. 3. In the Revision 3 report, Mr Zaioor's noise recommendations include 'it is recommended that when TV or music is played (in Boarding rooms) that all windows and doors of rooms be closed' (Exhibit 5). 4. In part in response to the Statement of Facts and Contentions, Mr Zaioor produced the Revision 5 report. It is this acoustic assessment on which the applicant relies. 5. In this report, Mr Zaioor does not determine an acoustic criterion for the noise emanating from the boarding rooms. The Revision 5 report states: 'There is (sic) no acoustic criteria for noise from people in boarding houses or residential properties. It is usually the case that in commercial premises, noise sources have to restricted to meet background noise level plus 5 through on-site management practices such as low/moderate tv and music volume, closed windows and screening' (Exhibit D). 6. In the Revision 5 report, Mr Zaioor concludes that the following recommendations are necessary for the development to meet the recommended noise criteria: 6.3 Management of Boarding House The use of the boarding house is usually regulated through a Plan of Management (POM). The Plan of Management is to ensure that no external music [is] to be played at any time in the terrace/common open spaces. It is recommended that when TV or music is played in boarding rooms that windows and doors of rooms are to be partially open (up to 20%) to ensure that music is inaudible at the boundaries of the site. Additionally, consumption of alcohol is not permitted in the outdoor common areas. In addition, a maximum of ten (10) residents/ visitors are to gather in the terrace during the day or evening. No residents/ visitors are to be gathered in the rear outdoor communal area or terrace after 10pm. All residences and visitors are not to make unreasonable noise while on the premises. It is the responsibility of the on-site manager to ensure that the above rules are adhered to by both residents and their visitors. Residents will be required to sign a lease agreement and could face eviction if the above rules aren't adhered to. (Exhibit D) 1. In his oral evidence, Mr Zaioor accepted that the noise level emitted from the boarding rooms should be 50dB(A). In cross examination, Mr Zaioor also accepted that for boarding house applications it is appropriate to consider and mitigate noise impacts from lodgers' rooms as well as common spaces, car parks and mechanical plant. 2. Mr Cooper argues that the Revision 5 report is deficient in that it does not assess and determine the likely noise to be emitted from the boarding rooms. Further, he argues it is unclear through what mitigation measures (or how) the criteria of 'inaudibility at the boundary' would be met. 3. The Respondent's written submission summarises Mr Coopers oral evidence on the noise levels generated as follows: 33. Mr Cooper gave oral evidence that as a commercial operation, noise from rooms should be assessed, against the NGLG [Noise Guide for Local Government], at a level of 50dba (T.10; p.18 lines 5 to 20; p19 line15; p22 lines 20 to 25; p124 limes 40 to 45). That any noise arising from the site should achieve the background plus 5db(A), and background plus 15db(A) between the hours of 10pm to 7am Monday to Saturday, or to 8am on Sundays and public holidays (T9 lines 25 to 35). (Respondents written submissions, 19 December 2019, p6) 1. It is Mr Cooper's evidence that for the development to meet the criteria of inaudibility at the boundary, the boarding rooms would need to have fixed glazing and be mechanically ventilated. It is his view that this requirement would also apply to the Common Room (Exhibit 6). 2. The amended plans, to which leave was granted, reduced the extent of outdoor communal open space to an area directly adjacent the indoor communal room. This moved any communal open space within the proposed development away from the southern boundary. The acoustic performance of the communal area adjacent the west boundary, and the potential for adverse impacts on the adjoining resident at 18 Warners Avenue, was the subject of oral evidence and in part the supplementary joint report. 3. In particular, Mr Cooper expressed concern in his evidence that: * there is no acoustic barrier proposed on the Western boundary; and * there was potential for the communal space to be reverberant. 1. Following the further joint conference the experts propose the following condition on any development consent to ensure that the operation of the outdoor communal open space meets the noise criteria within 18 Warners Avenue: Within ninety (90) days of an Occupation Certificate being issued, acoustic compliance testing is to be undertaken of the outdoor communal open space with respect to Condition 92 (the noise condition). Testing is to be undertaken in the rear yard of 18 Warners Avenue using noise loggers with audio recording capabilities. Such testing is to be undertaken without the prior knowledge or prior advice to the Boarding House management. A time lapse video shall be used (or CCTV) to identify the number of persons using the open area during testing. A report is to be provided to Council within 14 working days of the conclusion of the testing. Where non-compliance is identified the report shall specify the additional noise control measures to be implemented. Following completion of/implementation of such controls the testing and reporting is to be repeated. (Respondent's conditions filed 19 December 2019) 1. The preceding agreed condition of the experts is not adopted by the Applicant. 2. However, the Applicant does agree to a condition proposing an 'acoustic screen' to 1.8m on the boundary and the requirement to install acoustic absorption material to the walls of the communal open space. Mitigation Measures: 1. Relevantly the recommendations referred to in Mr Zaioor's conclusion of the Revision 5 report states, in part: 6.3 Management of Boarding House The use of the boarding house is usually regulated through a Plan of Management (POM). The Plan of Management is to ensure that no external music (is) to be played at any time in the terrace/common open spaces. It is recommended that when TV or music is playing in boarding rooms that windows and doors of rooms are to be partially open (up to 20%) to ensure that music is inaudible at the boundaries of the site. … (Exhibit D) 1. It is noted that the highlighted recommendation for mitigation of acoustic impacts of Mr Zaioor is not adopted by the Applicant. However it was maintained by Mr Zaioor in his oral evidence as being necessary, along with the involvement of the manager, to achieve the necessary noise criteria. Further, it is Mr Zaioor's evidence that 'it is necessary that all noise mitigation measures are to be included in the POM' (Exhibit 6). 2. The final version of the POM, for which consent is sought, does not incorporate the requirement for windows and doors of the boarding rooms to be partially closed when music or TV is in operation, is inconsistent with the Revision 5 report and Mr Zaioor's evidence. 3. Mr Cooper's evidence is that: 27. The Revision 5 report does not provide specific noise controls to ensure compliance with the nominated limits. 28. The Amended POM does not provide specific noise controls or operational requirements to achieve acoustic compliance. 29. On the material that has now been provided neither the Revision 5 acoustic report nor the Amended POM identify how the internal music levels are to be maintained to achieve compliance and would appear to rely upon the Manager to assess and detect all noise sources on the site. 30. The Amended POM is inadequate as is the Revision 5 acoustic report. (Exhibit 6) 1. At the direction of the Court the Acoustic experts undertook further joint conferencing on the Applicant's further amended POM. Their agreed evidence is: 12. On our examination of the amended Plan of Management (from an acoustic perspective) we find the following deficiencies: - there is noise section in the POM; - there is no identification that the manager (or the alternative manager) will be on site 24 hours a day, seven days per week to address/manage any noise issues/complaints; - the POM does not identify any time restrictions not the use of the indoor common room (ref. Table 5.2.2 of Revision 5 Acoustic Report - identified as Exhibit D); - The statement under 'House Rules' of "Recorded and/ or amplified music is not permissible" doesn't make sense; - The POM has no information of (sic) noise controls with respect to the use of rooms- windows open to 20% to achieve inaudibility at site boundary (Section 6.3 of Revision 5 Acoustic Report), or limiters, or closing of windows or silenced air vents (para 85 of Joint Report on Acoustics. (Exhibit 9) 1. I note that a number of the above deficiencies are sought to be addressed by the Applicant through amendments to the POM and conditions, these proposed changes are noted at paragraph [69]. However, the Applicant in their closing submissions notes that they do not propose any mitigation for noise levels from rooms, in particular, they do not adopt any noise control measures such as those noted in the last dot point in the preceding paragraph. 2. Finally, the respondent argues that the noise from vehicles standing/idling in the driveway/carport will impact the adjoining residents. Mr Zaioor argues that the sleep disturbance criteria will be met. However, in oral evidence accepted that the effectiveness of the carport wall (3m length) would be impacted by the fact that the exhaust of the car would extend beyond the carport wall. The Revision 5 report also includes a recommendation for a 1.6-1.8m 'gap-free fence' to be installed on the adjacent 14 Warners Avenue to act as a sound barrier. Submissions: 1. Mr O'Gorman Hughes submits that, subject to some amendments to the POM and conditions included in his written submissions, that the proposed development warrants approval by the Court. 2. Mr O'Gorman Hughes argues that the proposed development is a 'modest re-development of the site' being a floor space ratio (FSR) of 0.918:1, less than the 1.2:1 maximum allowable under SEPP ARH (Applicant's written submissions, 9 December 2019 p.2). 3. Mr O'Gorman Hughes notes, and it is agreed by Ms Gerathy, that the agreed position of the planning experts is that, subject to the issue of acoustic impacts, there are no planning reasons that warrant the refusal of the application. 4. In assessing whether to grant consent to the application, Mr O'Gorman Hughes argues that the Court is required to balance competing considerations. He argues these include that the zoning and redevelopment of the land seeks higher densities, which has the potential for increased noise. In his submissions, he argues that the planning controls contemplate noise impacts arising from increased density, and this is relevant in the Court its determination of what is an 'acceptable impact'. 5. Mr O'Gorman Hughes submits that: 'Recommendations to impose restrictions on the inevitable consequences of such development (permissible development) should be considered in light of the objects of the planning scheme as a whole, and the uses which are permissible in a zone' (Applicant's written submissions, 9 December 2019 p.3). 6. Mr O'Gorman Hughes notes that the application proposes the following noise measures: 1. the POM requires an onsite manager; 2. the POM limits the use of the outdoor communal area from 8am to 10 pm; 3. the POM prohibits amplified music in the outdoor communal areas; 4. the POM contains house rules requiring lodgers to keep noise at a reasonable level; 5. the POM prohibits alcohol from being consumed in communal areas; 6. the communal area is limited to 20m² (the 'must not refuse' threshold set out in cl. 29(2)(d) of SEPP ARH); 7. the communal area is effectively shielded by three sides of the building; 8. the applicant agrees to a condition of consent requiring an acoustic screen (and acoustic gate) to be erected along the western and southern edges of the common open space to a height of 1.8 metres; 9. the applicant agrees to a condition which requires the installation of acoustic absorption material around the walls to the communal open space, acoustic treatment of the carport and both side boundary fences (as recommended by the experts in Exhibit 9 for the eastern fence); 10. the applicant agrees to a condition which requires noise from plant and machinery to comply with the relevant criteria; 11. the applicant proposes a further condition that the car lift is programmed so that the platform returns to ground level when not in use, to avoid noise from cars waiting for the car lift. (Applicant's written submissions, 9 December 2019 p.3-4). 1. Consistent with the evidence of Mr Polvere, Mr O'Gorman Hughes submits that the preceding measures are 'adequate to prevent unreasonable noise impacts arising from the residential use of the land' (Applicant's written submissions, 19 December 2019 p.4). Further, he submits that conditions of consent (which include the requirement to comply with the POM) are routinely applied by consent authorities, including the Court. 2. In seeking to address the deficiencies in the POM identified by the acoustic consultants the applicant seeks the following amendments to the POM, imposed through conditions of any consent: 1. the door to the internal common room is to be kept closed between 10pm and 8am; 2. the statement 'Recorded and/ or amplified music is not permissible' is to be deleted (note the POM already has a condition preventing amplified music in the common room); 3. the telephone number of the manager is to be displayed on the front exterior of the building. The manager is to be contactable 24 hours a day; 4. signs are to be displayed inside the building adjacent to the entrance way, and inside the common lounge adjacent to the common open space, advising lodgers that (i) the outdoor common area is not to be used between 10pm and 8am (ii) the doors leading to those areas is to be kept closed during those hours (iii) no amplified music is allowed within the outdoor communal areas (iv) a maximum of 10 people may use the outdoor common area at any time (v) lodgers are to keep noise to a reasonable level (vi) alcohol is not to be consumed in the indoor or outdoor common areas. (Applicant's written submissions, 9 December 2019 p.5). 1. Mr O'Gorman Hughes argues that it is unreasonable for a residential use to have conditions or restrictions on matters such as: the extent to which windows of private rooms are to be closed whilst occupants are watching TV; the installation of sound limiters on equipment; or the imposition of prescriptive sound limits on all land uses on the land. Rather Mr O'Gorman Hughes argues that: 'restrictions of that nature go beyond what is reasonable for the residential use proposed. The development should be designed in such a way that restricts such impacts, coupled with appropriate supervision and complaint handling procedures' (Applicant's written submissions, 9 December 2019 p.5). 2. Mr O'Gorman Hughes argues that this approach is consistent with the planning controls in DCP 2016 (refer paragraph [19]) which focus on the POM as the control/ tool to maintain neighbourhood amenity. 3. Mr O'Gorman Hughes notes that, concerning mechanical noise generated by the proposed development (air-conditioning units, the car lift, roller doors), the Council has imposed a condition requiring these items to comply with the relevant noise criteria. He argues that nothing about the development warrants a different approach in this instance and that any issue of mechanical noise is dealt with appropriately by the following agreed condition: Noise Mechanical Services To minimise the impact of noise onto receivers on surrounding land, all mechanical services shall be designed to ensure 'offensive noise', as defined under the provisions of the Protection of the Environment Operations Act 1997, is not emitted from the development. Details of the proposed equipment, siting, appropriate noise criteria and any attenuation required shall be prepared by an appropriately qualified acoustic consultant and accompany the application for a construction certificate. 1. Mr O'Gorman Hughes argues that the approach taken by Mr Cooper to noise generated vocal and music sources is inconsistent with the Noise Guidelines for Local Government. Mr O'Gorman Hughes argues this is because Mr Cooper has applied an approach to the application dictated by his nomination of the development as a 'potentially noisy development'. Mr O'Gorman Hughes argues this is incorrect and that the use of rooms within a boarding house is a residential use and that the Court should apply a reasonable and proportionate response to any need to mitigate that noise. 2. To assist the Court in determining what is an appropriate and proportionate response Mr O'Gorman Hughes identifies several decisions that provide guidance to the Court. These decisions include: Al Ali v Canterbury Bankstown Council [2019] NSWLEC 1115 at [72]-[73]; Gow v Warringah Council [2013] NSWLEC 1093 at [14]; and Prillis v Marrickville Council [2012] NSWLEC 1348 at [12]-[13]. I have reviewed each of these cases. 3. Finally, in response to the oral evidence of Mr Cooper expressing concern about the reverberance of the communal open space Mr O'Gorman Hughes notes that a condition is proposed by the Applicant to utilise absorptive material as well as apply an acoustic screen wall along the western and southern edge of the communal open space to address Mr Cooper's concerns. 4. In the alternative, Ms Gerathy, for the Respondent, makes the principal submission that a boarding house, as a form of development is 'a form of accommodation which can engender additional impacts and operate differently to other forms of residential accommodation, especially in residential contexts (Respondent's written submissions, 19 December 2019 p.1). 5. Further, Ms Gerathy argues that the suite of planning controls that apply, in both SEPP ARH and LEP 2012 recognise that the use of a boarding house is not analogous to a residential flat building or a townhouse development. It is her submission that 'boarding house development results in a more dense form of development in terms of persons accommodated on site, in smaller largely self-contained rooms with shared common spaces utilised by more transient residents with a minimum three month stay (Respondent's written submissions, 19 December 2019 p.2). 6. As a further illustration of the applications density Ms Gerathy submits that the proposed FSR is an almost 30% increase over the maximum permissible under the LEP and notes that Mr Polvere conceded that a site area of over 1100m² would be required to develop the site for multi dwelling housing, which is more than the site area of 923.3m² for the subject site. 7. Ms Gerathy argues that the impact that arises from this intensity of use that has not been mitigated by the applicant is the acoustic impacts. 8. Ms Gerathy submits that the application should be refused on the following grounds: The Court cannot be satisfied that the development is compatible with the character of the local area, having regard to the noise impacts of the proposal arising from the intensity of the use in the residential context and/ or the Court cannot be satisfied the proposal will have an acceptable amenity outcome for adjoining properties as: (a) the acoustic environment has not been properly established. The applicant failed to accurately measure, or to measure at all in one instance, background levels at receiver locations to obtain criteria; (b) consequently, the mitigation measures required to achieve the agreed noise criteria are uncertain; (c) absent background levels or accurate levels (it) is not possible to determine the height, length, dimension or effectiveness of acoustic barriers – particularly to 18 Warners Avenue; (d) even though agreed by the Applicant's expert, the applicant has not adopted noise levels at 50dba in rooms and an inaudibility criteria at the boundaries in the Applicants proposed conditions and Plan of Management; (e) in light of the deficiencies there is inherent uncertainty as to the effectiveness of measures offered to mitigate that impact both passive and active; and (f) reliance on the Plan of Management (POM) to ameliorate impact is impractical and unrealistic in some respects. Inter alia, it requires management vigilance to ensure noise from rooms achieves agreed criteria. (Respondent's written submissions, 19 December 2019 p.3). 1. Ms Gerathy argues that consistent with the decision of the Court in Moscaritolo and Anor v The Hills Shire Council [2013] NSWLEC 1014 at [27], consideration should be given to the planning principal in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ('Project Venture v Pittwater') at [24] in determining if the proposal is compatible with the character of the local area. That being the test cl.30 of SEPP ARH. She notes that the principal in Project Venture v Pittwater asks two questions in determining whether a proposal is 'compatible with its context', namely: * Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites, * Is the proposal's appearance in harmony with the buildings around it and the character if the street? 1. On the preceding basis, Ms Gerathy argues that 'the test for character compatibility therefore (is) not limited to the appearance or fit of the building in the streetscape. Compatibility with the existing residential character is also viewed through the lenses of use, operation and impacts.' (Respondent's written submissions, 19 December 2019 p.5). Applying the principal Ms Gerathy concludes that the acoustic impacts of the development are such that the Court would not be able to be satisfied that the proposal is compatible with the existing character. 2. Ms Gerathy submits that in relation to acoustic evidence the Court cannot be satisfied that: (a) the acoustic modelling upon which the Acoustic Report, mitigation recommendations and Plan of Management are based have been properly carried out, and/or that, (b) regardless of flawed modelling, acoustic impacts could be effectively managed by passive measures such as acoustic barriers or carports or active management under a POM. (Respondent's written submissions, 19 December 2019 p.5). 1. Further, Ms Gerathy argues that the assessment of the acoustic impacts of the development and an assessment of the effectiveness of acoustic measures are not capable of deferral to post consent. 2. Ms Gerathy argues that the previous decisions of the Court relied on by the Applicant (refer paragraph [74]) to establish that acoustic impacts could be managed or mitigated through the implementation of operation acoustic conditions is not appropriate on the following grounds: * the cases cited are not factually analogous and there is no commentary in the applicants submissions as to the adequacy of the acoustic measures, * the applicant's conditions conflict with the evidence of Mr Zaioor and the agreed condition of the acoustic experts, which required further testing for the purposes of identifying any additional noise control measures. * Consistent with the decision of the Court of Appeal in Weal v Bathurst City Council & Anor [2000] NSWCA 88 (Weal v Bathurst), Ms Gerathy argues '…the Court could not be satisfied on the evidence before it, or on the applicant's proposed conditions, that the impacts of the noise emitted from 31 boarding rooms containing 53 lodgers and only 1 manager can be sufficiently regulated and controlled. Not being able to reach that point of satisfaction the issue with respect to acoustic impact from occupants using the proposal remains unresolved, (an) issue which should not be left to deferred or operational conditions to be determined at a future date.' (Respondent's written submissions, 19 December 2019 p.11). * Finally that 'if (the) acoustic impact of the development was deferred to conditions, the Court would not be giving the development application the consideration required by law, leaving the critical impact of noise impact to further testing and implementation of mitigation measures it has not had the opportunity to consider in the subjective context of the character of the development' (Respondent's written submissions, 19 December 2019 p.11). 1. Ms Gerathy, on the basis of the evidence of Mr Zaioor and Mr Polvere, submits that the appropriate management of the acoustic impacts of the development is either critical or very important, being the respective views of the Applicant's experts. 2. Ms Gerathy submits that on the evidence before the Court the current POM is inadequate and does not achieve the appropriate management of the acoustic impacts of the development. Her reasoning is summarised as follows: * the failure to include either a sound level of 50dba, or a criteria of inaudibility at the boundary in the POM, despite the agreement of the acoustic experts that they should be included, will leave the boarding house manager to determine what a 'reasonable' sound level will be; * it is insufficient for the relevant to be 'reasonableness' in the subject opinion of the manager; * the POM is a complaints driven management tool and therefore will only act retrospectively after any impact has been experienced by the adjoining residents; * it is inappropriate for the POM to 'seek to cure the defects of the acoustic analysis' (Respondent's written submissions, 19 December 2019 p.13). 1. Further, Ms Gerathy argues that the POM is inadequate when measured against the Court's planning principle established in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [53-55] which poses eight questions, namely: 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 1. When the POM, and the proposed development, is assessed against these questions Ms Gerathy argues that: * the POM fails to include relevant noise levels and inaudibility requirements (objective criteria) and relies on the subjective opinion of the boarding house manager to determine acceptability. * It requires people to self-regulate their behaviour and act in an unlikely/ unreasonable manner. * For a 53 occupant boarding house, the 10 person limit on the use of the communal space is restrictive and unlikely to be maintained consistently. * It is unrealistic to expect occupants to self-regulate their behaviour and know how to maintain noise levels to 50db(A) to meet the criteria of inaudibility at the boundary. Behavioural breaches are unlikely to be able to be controlled by the Manager. * The control in the POM making recorded, or amplified music, not permissible throughout the development is unrealistic given the prevalence of the technology. * Given the acoustic environment has not been properly established a conservative approach is required, based on fixed acoustic measures to ameliorate the impact. * It is the experts evidence that 'the physical and numerical controls (closing windows and doors, prohibiting access to the landscape area to the rear and limitation on the time periods and numbers of persons in communal areas) are necessary to meet the agreed criteria for an acceptable outcome for adjoining residents' (Respondent's written submissions, 19 December 2019 p.15). All of these requirements are not incorporated into the POM. 1. Ms Gerathy concludes that: …as is evident from the evidence referred to above as regarding the adequacy of the acoustic report, the Court could not be satisfied that any of the amendments or measures proposed by the applicant in its suggested amendments to the POM or draft conditions would be capable of managing or mitigating the impact because the raw data, the background levels, was not been (sic) collected in order to enable the Court to make an accurate assessment of whether it could grant consent to a further revised POM and or conditions requiring further acoustic assessment and then design of noise controls as being sufficient to mitigate against the impact caused by the proposal. To do so may result in a development consent which lacks the requisite level of finality and certainty of valid development consents: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 739 to 740. (Respondent's written submissions, 19 December 2019 p.16). 1. In response to Ms Gerathy's submissions, Mr O'Gorman Hughes disagrees that the test at cl. 30A of SEPP ARH in regards to the character of the area necessarily includes an assessment of noise impacts. However, he acknowledges that given the centrality of noise impacts to the case the Court will consider the noise impacts of the proposed development. 2. Mr O'Gorman Hughes distinguishes the current case from the precedent of Weal v Bathurst and argues that the conditions and amendments to the POM proposed by the Applicant are appropriate. He argues that the impacts have been assessed and are mitigated by the presence of an on-site manager; the boarding house rules; and the complaints management system. Further, he argues that the impacts from the use of the communal open space are addressed by a physical barrier and several restrictions on use. He disagrees that in approving the application the Court could be argued to be failing to assess and take into consideration the noise impacts of the development and the proposed mitigation measures. 3. Finally, Mr O'Gorman Hughes disagrees with Ms Gerathy's submission that the imposition of a requirement that noise from rooms not exceed 50 db(A), or be audible at the boundary is unreasonable and or unlikely to be complied with. He clarifies that 'this is not a requirement of the POM, nor does the Applicant suggest it should form part of the conditions of consent' (Applicant's written submissions, 20 December 2019 p.6). Findings 1. I am satisfied that the determination of the potential acoustic impacts arising from the proposed development is a relevant consideration in the determination of the development application. My reasoning is that: * an acoustic assessment forms part of the Class 1 application and the amended application before the Court. The applicant has provided this information as part of its Statement of Environmental Effects in support of the development, which at 6.3.7 of that report identifies the potential for the proposed development to generate noise impacts. The Applicant identified the potential for acoustic impacts to arise from the boarding rooms as part of its development application: Part 1 Schedule 1 Environmental Planning and Assessment Regulation 2000. * s. 4.15(b) of the EPA Act requires the evaluation of the application to include the likely impacts of that development, including environmental impacts on built environment, of which acoustics is one such impact. * I accept and adopt the submission of Ms Gerathy at paragraph [76] that a boarding house in this context and the form proposed by the application is a form of development that can produce additional impacts and operate differently to other forms of residential accommodation. 1. I accept the agreement of the acoustic experts that mechanical noise impacts arising from equipment and plant can be appropriately managed through the agreed conditions, refer paragraph [37]. 2. I accept the evidence of Mr Cooper, detailed at paragraph [28-30] and [32] that the lack of a background noise reading for the property adjacent the western boundary of the subject site (18 Warners Avenue) is a deficiency in the acoustic assessment of the potential impacts of the development. My reasoning is as follows: * the location of the proposed communal room, and outdoor communal space (both potential noise generating activities) are located proximate to this boundary. * The background noise readings that have been provided for the adjoining properties to the south and east show a variability of between 1dB(A) and 2dB(A). * The cross-sections of the subject site and the adjoining properties to the east and west (Exhibit K) demonstrate a material difference in the natural ground level between the neighbour to the east and the west (some 4m). This makes the utilisation of the same background noise level potentially unrepresentative of the actual noise environment at 18 Warners Avenue. * The Revision 5 report does not follow the guidance of the Noise Guide which states: If more than one valid measurement of the background noise for a location is obtained, use the lowest reading as the background noise level. * Further, I accept the evidence of Mr Cooper that the background reading at A (the eastern boundary) is unable to be adjusted for the weather as observations were not taken (refer paragraph [32]). 1. This uncertainty of the relevant background noise level at one of the nearest residential receivers inhibits an assessment of the likely impacts of the development on the amenity of that property. Further, the consent authority is unable to undertake the balancing of those impacts against the benefits of the proposed development and the provisions of the relevant planning instruments as required by s 4.15 of the EPA Act. 2. The Revision 5 report, on which the Applicant relies, does not nominate an acoustic criterion for the noise emanating from the boarding rooms. I do not accept Mr Zaioor's evidence that the noise from the boarding rooms is equivalent to a standard residential form of development. I am satisfied that the intensity of development evident in the number of boarding rooms (which are in effect the sole space for private recreation for each of the occupants) proposed on the site is distinguishable from the comparisons of other forms of residential development on which he relies. 3. I accept the oral evidence of Mr Zaioor and Mr Cooper that in this matter it is appropriate to consider and mitigate noise impacts from boarding rooms, as well as common spaces, car parks and mechanical plant. 4. Further, I note the agreed, final position, of the acoustic experts that the noise from boarding rooms should be assessed at 50dB(A). That acoustic assessment has not been undertaken and is not before the Court. 5. I accept the evidence of Mr Cooper that any noise arising from the site should achieve the measured background noise level plus 5dB(A), and measured background noise level plus 15dB(A) between 10 pm and 7am Monday to Saturday and 8am on Sundays and Public Holidays. This position is not inconsistent with the evidence of Mr Zaioor who nominated in the Revision 5 report a sleep disturbance level (between 10pm and 7am) of background noise level plus 15dB(A). Given the lack of acoustic assessment of the agreed noise levels from the boarding rooms it is not clear of or how these criteria are met by the proposed development. 6. Importantly, notwithstanding the lack of nomination of an acoustic criterion for the noise generated from the boarding rooms, Mr Zaioor provides detailed recommendations in the Revision 5 report (refer paragraph [45]). These recommendations include proposed controls limiting the opening of windows in the boarding rooms whilst TV's or other noise sources are being utilised. This recommendation is not adopted by the Applicant. 7. In the joint report Mr Zaioor proposes the following alternative control: …I am of the opinion that the noise management from the boarding house can be easily, feasibly and reasonably mitigated through a revised POM. The noise from the boarding rooms' TVs/radios could be limited through noise limiters available on the market if noise control such as signs and the presence of the site manager are found to be ineffective. Noise from the rooms can also be mitigated through closed windows with the use of silence air grills for ventilation. (Exhibit 6) 1. These alternative mitigation options are not adopted by the Applicant. 2. Contrary to the submissions of Mr O'Gorman Hughes I am satisfied that preceding leaves the Court with a lack of certainty of what noise will be generated by the boarding rooms, an absence of modelling of the expected noise at the adjoining residential receivers, and a lack of certainty about what to modelled impact on those expected noise levels will be given the mitigation measures in the Revision 5 are not adopted in totality. 3. I find that it is not clear from the evidence before the Court what the potential adverse (noise) impact from the development on adjoining properties is, in particular for 18 Warners Avenue. It is therefore unclear how effective they would be in mitigating these potential adverse impacts. 4. The mitigation measures proposed by the Applicant in their submissions are detailed in paragraph [67]. A number of these mitigation measures have not been the subject of expert evidence and/or have not been considered as a collective in addressing the potential noise generated by the development. 5. In addressing the proposed mitigation measures of the POM I find as follows: * the omission from the POM of the acoustic mitigation recommendations of Mr Zaioor creates uncertainty that the acoustic criteria of 'inaudibility at the boundary' will be met by the development; * I accept the agreed evidence of the experts that the POM is deficient for the reasons they identify at paragraph [59]. * I note that the Applicant has sought to cure some of the identified deficiencies in the POM through proposed conditions, refer paragraph [69]. Coming after the closing of the hearing, these have not been the subject of expert evidence. I am not satisfied that these amendments are sufficient to provide effective measures or controls over the operation of the proposed boarding house to mitigate its potential impacts. * The measures seek to control resident behaviour and are retrospective to the noise impact. 1. I accept and adopt the submissions of Ms Gerathy at paragraphs [89-90] and conclude that the POM fails to address the planning principle established in Renaldo Plus 3 Pty Ltd v Hurstville City Council and I find that the POM is not appropriate for the proposed development or in the context of the subject site. In addition to the grounds advanced by Ms Gerathy, I am not persuaded that the location of the proposed Manager's residence within the development (being on the second floor) would assist in them maintaining either passive or active observation of the boarding rooms, communal room or the communal open space which would be essential to the effectiveness of the POM. 2. Finally, I note that Mr O'Gorman Hughes submits that the required amendments to the POM and the development to rectify any deficiency are appropriately dealt with by condition, including the condition proposed by the acoustic experts (refer paragraph [52]). I am not persuaded by this submission. My reasoning is that: * on the evidence before the Court it is not possible to determine the potential acoustic impact from the development; * I am satisfied that the density, type of use and the context of the site make it necessary that the determination of the potential acoustic impacts occurs before the grant of consent. * Without a conclusion on the likely impacts of the development, it is not possible for the consent authority to undertake the required assessment of the application under s4.15(1) of the EPA Act (including balancing any impact against the relevant planning controls and the benefits of the application) prior to determination. * I accept and adopt Ms Gerathy's submission at paragraph [90]. 1. On the basis of the preceding I find that the application warrants refusal. Costs: 1. The Respondent seeks for the Court to make an order under s 8.15(3) of the EPA Act for those costs of the consent authority that have been thrown away as a result of an amendment of the application for development consent. 2. Section 8.15(3) of the EPA Act states: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. 1. The preceding section is of essentially the same terms as the previous s 97B(1) and (2) of the EPA Act. 2. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'. 1. The first test was met during the proceedings by the grant of leave for the tender or amendment of the material generally detailed at paragraph [119] below. 2. Both parties in their submissions reference the decision of Pepper, J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 [42] (Futurespace Pty Ltd v Ku-ring-gai Council) articulates the principles that may assist in determining whether amendments are minor, as follows: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 1. Ms Gerathy submits that the relevant documents are: (a) Amended Stormwater and sewer plans (Exhibit P) (b) Amended Architectural plans (tendered on 28 November, and revised set tendered on 29 November (Exhibit A as amended by Exhibit Q and Exhibit K) (c) Amended Landscape plans (Exhibit L) (d) Acoustic Report of Mr Zaioor, Revision 5 (Exhibit D) (e) Plan of Management (Revision C) (Exhibit G). (Which was a further revision of the revised Plan of Management (Revision A 24 October) upon which the acoustic experts joint conferenced, and which was different to the Plan of Management for which leave was granted to rely on 4 July 2019. (f) Contamination Report (265 pages and supplementary report) (g) Letters from Ausflow x 2 (Respondent's written submissions, 19 December 2019 p. 19) 1. In brief, Ms Gerathy submits the above documents are amendments and are more than 'minor' on the following grounds, following the framework in Futurespace Pty Ltd v Ku-ring-gai Council: 1. Fact and degree: that the timing of the provision of the material (just prior or on the day of the hearing) 'significantly increases the degree to which Council was required to prepare to ventilate matters before the Court' (Respondent's written submissions, 19 December 2019 p. 20). 2. Cumulative or overall effect: Ms Gerathy argues that the Applicant, in their submissions, focusses only on the plan amendments rather than the additional aspects that were also amended: acoustics, engineering and management of the development. Further, the height was not lowered in totality by 250mm, but rather a variable increment of between 150mm and 350mm. The Respondent was required to engage additional experts to assess the amended engineering aspects of the development, both the sewer and stormwater components. The acoustic amendments included: the abandonment of the previously adopted noise levels from rooms, changed compliance recommendations and further noise readings from Garden Place. The further amended plans include the deletion of the rear communal open space. 1. The deletion of the 90m² communal open space at the rear resulted in the only outdoor space being located in the 20m² west facing courtyard. 2. Ms Gerathy argues these amendments are not minor and 'required significant reassessment from an engineering, planning as well as an acoustic perspective, within 24 hour period' (Respondent's written submissions, 19 December 2019 p. 21). 1. Ms Gerathy concludes that: 'In light of the above assessment of the principles set out in Futurespace, the respondent submits that the amendments made in the further amended application are not minor, and accordingly the Court must make an order for the respondent's thrown away as a result of the amendment' (Respondent's written submissions, 19 December 2019 p. 22). Further, she argues that the Court should define the relevant period for the costs thrown away as 5 July 2019 to and including 29 December 2019. 2. In the alternative, Mr O'Gorman Hughes argues that s 8.15(3) of the Act does not apply when 'a party does not amend the application but merely provides further evidence in support'. Specifically, he argues that the additional acoustic information supplied by the Applicant was 'part of the process of attempting to come to an agreement during the joint conferencing process' and that the contamination report was not an amendment but further evidence in support of the existing application (Applicant's written submissions, 9 December 2019 p.11). 3. Concerning the amended plans, Mr O'Gorman Hughes argues the amendments were minor and of the following scope: (a) Making the plans consistent (ensuring that both the architectural and landscape plans showed the sewerage line in the same location (DA-1001-G, 1003 G); (b) Showing solar collectors on the roof of the adjoining property and providing a cover in front of the car lift to reduce noise (DA 1004 G, 2003H); (c) Incorporating privacy measures (screening and sill heights) requested by the experts which were the subject of a proposed condition in any event (DA 2005 G); (d) Reducing the height of the building by 250mm; (e) Providing for vegetation at the rear of the building and adjusting the levels on the landscape plans to reflect existing levels (Exhibit L) The sections were provided at the request of the Court and did not amend the design of the building. (Applicant's written submissions, 9 December 2019 p.11-12). 1. In applying the principles summarised in Futurespace Pty Ltd v Ku-ring-gai Council, Mr O'Gorman Hughes argues: 'the amendments did not involve a significant reassessment of the application (to the extent they rectified inconsistencies in the plans, and implemented proposed conditions recommended by the experts, those impacts have already been assessed). Whilst the timing of those amendments was unfortunate, this did not convert an amendment which was minor to something which was not' (Applicant's written submissions, 9 December 2019 p.12). 2. Mr O'Gorman Hughes concludes that no order to costs should be made. Findings: 1. In Groeneveld v Wollongong City Council [2009] NSWLEC 149 at [29] – [32] two factors are raised by the Preston CJ to assist in determining whether the amendments, in this case, are minor or not. The first factor is concerned with contextual significance. Contextually, it is clear to me that the amendments went beyond "matters of detail". 2. In particular: the assessment of the contamination report, and it's supplementary report go to the satisfaction of the consent authority at cl. 7 of SEPP 55 which is a precondition to consent; the POM, the Revision 5 acoustic report and the landscape plan, when read together, were of considerable significance to the proposal and changed in material ways how the proposed development was to be developed and operated. 3. I accept Ms Gerathy's submission that the engineering plans required engagement and assessment of the proposed sewer relocation by a new (and additional) expert. 4. The second factor is concerned with the substance of the re-assessment which was required. It is clear to me that the amendments required significant re-assessment of the proposed development, in particular of the acoustic and engineering aspects. 5. I am satisfied that the amendments were both of significance in the context of the proposal and warranted considerable re-assessment. For these reasons, these amendments are not able to be classified as minor, and in that case, there is no discretion and an appropriate order as to costs thrown away by the Council is required. 6. I note that Ms Gerathy seeks the order to specify the period in which these costs are to be assessed. The Applicant makes no submission in reply offering a contrary view concerning the designation of a time period. I am satisfied that, consistent with the decision in Groeneveld v Wollongong City Council that it would be beneficial and of assistance to the assessment process to adopt the time period as advanced by Ms Gerathy. Orders: 1. The orders of the Court are: 1. The Court notes that the Applicant was granted leave to rely on amended plan and material during the hearing of the matter on 28-29 November 2019. 2. That the Applicant is to pay the Respondent's costs thrown away as a result of the grant of leave in (1) for the period 5 July 2019 to 29 December 2019 (inclusive). 3. The appeal is dismissed. 4. Development Application No. 2018/191 for the construction of a 31 room boarding house at 16 Warners Avenue, Willoughby (Lot 13 DP 35206) is refused. 5. Exhibits are returned with the exception of Exhibits 3, 4, A and B. ………………………… D M Dickson 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. Decision last updated: 28 January 2020