HUACHONG DEVELOPMENT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2008] WASAT 188

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HUACHONG DEVELOPMENT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 188

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 5, 7 AND 8 AUGUST 2008

DELIVERED : 21 AUGUST 2008

FILE NO/S: DR 30 of 2008

BETWEEN: HUACHONG DEVELOPMENT PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Development application - 139 grouped dwellings and community centre - Rural zoning - Site located on extended centre line of and 6.3 kilometres from east-west runway at Perth Airport - Site mostly within 25‑30 ANEF contour and partly within 20‑25 ANEF contour - Aircraft noise - Urban consolidation - State Planning Policy No 5.1 - Land Use Planning in the Vicinity of Perth Airport - "Unacceptable" building site under State Policy - Whether development may be "necessary within existing built-up areas" - Whether site is "greenfield site" - Whether internal noise acceptable if proposed noise insulation satisfies indoor design sound levels and notice placed on titles - Whether external noise acceptable with roofed pergola or enclosed area with openable bifold doors and notice placed on titles - Words and phrases: "greenfield site"

Legislation:

Airports Act 1996 (Cth)
City of Swan Local Planning Scheme No 17, cl 4.2, cl 6.2, cl 9.4
City of Swan Town Planning Scheme No 9
Metropolitan Region Scheme, cl 30(1), cl 32
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
Residential Design Codes of Western Australia (2008)

Result:

Development application refused

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen with Mr A Carr
Respondent: Ms C Ide

Solicitors:

Applicant: Lavan Legal
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2001] WATPAT 19; 28 SR (WA) 20
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Ryan v Port Stephens Council [2008] NSWLEC 66

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for 139 grouped dwellings and a community centre on a 7.2 hectare allotment located on the extended centre line of and approximately 6.3 kilometres from the east-west cross runway at Perth Airport. About 73% of the site, and about 80% of the proposed dwellings, are within the 25‑30 Australian Noise Exposure Forecast plan for Perth Airport.
The principal issues in the case were whether the proposed development is inconsistent with State Planning Policy No 5.1 ‑ Land Use Planning in the Vicinity of Perth Airport, and, if so, whether that State Policy should be departed from in the circumstances of the case. The objectives of the State Policy are to protect Perth Airport from unreasonable encroachment by incompatible noise‑sensitive development and to minimise the impact of aircraft operations on existing and future communities with reference to aircraft noise.
The Tribunal determined that the proposed development is materially inconsistent with the State Policy because:
•the scale of the development is inconsistent with the Rural zoning;
•the Policy designates the siting of 80% of the dwellings as "unacceptable";
•the site is a "greenfield" site, because it is a relatively large development site that is generally devoid of substantial physical development in the form of buildings or other structures, whereas the Policy states emphatically that no new development should take place in greenfield sites deemed "unacceptable";
•the noise impact of aircraft would be unacceptable, at least in relation to the 80% of dwellings in the 25-30 Australian Noise Exposure Forecast contour, even if the development were conditioned so that its construction would achieve designated indoor design sound power levels, with windows closed, and so as to require notification and information about aircraft noise for potential purchasers and renters; and
•in consequence, the development is inconsistent with the objectives of the State Policy.
The Tribunal determined that there is no cogent reason, in the circumstances of the case, to depart from the State Policy. In particular, while future Australian Noise Exposure Forecast contours may reduce slightly from the presently endorsed contours in consequence of factors such as changing technologies, it would be highly speculative and inappropriate to grant development approval on the assumption that changing technologies will ultimately transform an unacceptable level of exposure to aircraft noise to an acceptable level.
The Tribunal affirmed the decision of the Western Australian Planning Commission to refuse development approval for the proposed development.

Introduction

These proceedings involve an application brought by Huachong Development Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission) to refuse to grant approval under the Metropolitan Region Scheme (MRS) for a development comprising 139 two and three bedroom grouped dwellings and a community centre at Lot 241 Clayton Street, Bellevue (site).
The site is located within the local government area of the City of Swan (City). Although the City has a general delegation from the Commission to determine development applications under the MRS, the City referred the development application to the Commission in this case in accordance with resolution 52 made by the Commission under cl 32 of the MRS, which requires applications for development on land in the Rural zone to be referred to the Commission for determination where, in the opinion of the local government or the Commission, the use may be inconsistent with the Rural zone. The Council of the City resolved to recommend to the Commission that it should approve the development application subject to conditions.

Site and locality

The site has an area of approximately 7.2 hectares and is roughly rectangular in shape. The site is predominantly cleared with some mature trees along the eastern boundary and in the south-eastern corner around a creek that traverses this part of the site. While the Tribunal was informed that the site was once used as an abattoir, there appears to be no physical development in the form of any substantial structures on the site. The site has an open, grass-covered appearance.
The site is used together with the adjoining smaller property to the west at Lot 137 Clayton Street, Bellevue (Lot 137), as the Palm Grove Golf Course. Lot 137 is also substantially cleared and contains a mini golf course and associated facilities. It appears that the site comprises the driving range of the golf course.
Between the southern boundary of the site and Clayton Road, there is a triangular allotment which appears to be traversed by the creek and is substantially covered by mature trees. To the south‑west of the triangular allotment, across Clayton Street, there is an area that appears to be public open space with some mature trees, and to the south of triangular allotment, across Clayton Street, there is a residential precinct comprising single houses. To the south‑east of the site, there is an area that appears to be public open space with some mature trees and then a school oval and school buildings. The site also adjoins five single residential properties to the north-east which form part of a residential precinct. Between the northern boundary of the site and Croydon Street, there is a strip of open space, and to the north of Croydon Street is a developed residential area. To the west of Lot 137 is Lot 134 Clayton Street, Bellevue which, although zoned for industrial purposes, appears from an aerial photograph to be used in conjunction with the Palm Grove Golf Course. To the west of this property are a number of properties zoned and used for industrial purposes.
The site is located on the extended centre line of and approximately 6.3 kilometres from the east-west cross runway (runway 06/24) at Perth Airport. If a proposed, but not yet approved, extension of this runway to the north‑east were to be constructed, the site would be approximately 5.5 kilometres from the threshold.
On 2 July 1997, the Commonwealth Government granted Westralia Airports Corporation a 50 year lease with a 49 option to operate Perth Airport. In accordance with the Airports Act 1996 (Cth), Westralia Airports Corporation prepared a Master Plan for Perth Airport which was approved on 10 August 2004. The Master Plan incorporates the current Australian Noise Exposure Forecast (ANEF) plan for Perth Airport which is based on 350,000 annual aircraft movements. The ANEF is a single number index for predicting the cumulative exposure to aircraft noise in communities near aerodromes during a specified time period. There are currently approximately 110,000 annual aircraft movements at Perth Airport. The evidence of Mr Torben Petersen, an engineer who is the Terminal Strategy Manager with Westralia Airports Corporation at Perth Airport, indicates that the airport is likely to reach 350,000 aircraft movements per annum in approximately 30 ‑ 40 years.
Approximately 73% of the site is located within the 25‑30 ANEF contour under the currently endorsed ANEF plan, with the remainder of the site located within the 20‑25 ANEF contour. Because the area within the 20‑25 ANEF contour includes the creek traversing the south-east corner of the site and mature trees that are proposed to be retained as open space for residents within the proposed development, approximately 80% of the proposed dwellings would be located within the 25‑30 ANEF contour and approximately 20% of the dwellings would be located within the 20‑25 ANEF contour.
The noise experts who gave evidence agree that the proposed dwellings within the 25‑30 ANEF contour are within an area ranging between 25‑27 ANEF. They also agree that the site would be subject to an average of approximately 206 daily aircraft movements when Perth Airport has reached 350,000 annual aircraft movements. Of the average 206 daily aircraft movements, 136 (66%) would occur between 7 am and 7 pm, and 70 (34%) would occur between 7 pm and 7 am. Seventeen percent of aircraft movements would be above 80 dB(A), which is approximately equivalent to the noise level of a truck travelling at 80 kilometres per hour on a highway passing at 15 metres.
Attachment A shows the location of the site in bold outline and the currently endorsed ANEF contours. Attachment A also usefully shows the site as the termination of a finger or corridor of generally larger sites emanating from the airport. Finally, Attachment A shows that the site is considerably larger than other allotments in the suburb of Bellevue. Attachment B is an aerial photograph showing the location of the site on the extended centre line of the east‑west runway. Attachment B shows that most of the land between the airport and the site is open and does not contain any substantial physical development in the form of structures. Most of the structures that are located on or near the extended centre line of the east‑west runway between the airport and the site are industrial developments. The only residential development within the 25‑30 ANEF contour between the airport and the site comprises 12 existing single residential lots and a strata development approved by the City that is currently under construction to the south‑west of the site. As seen on Attachment A, the 25‑30 ANEF contour tapers and ends to the north‑east of the site. This area contains single residential allotments that were developed well before the currently endorsed ANEF plan.

Planning framework

The site is zoned "Rural" under the MRS and "General Rural" under the City of Swan Local Planning Scheme No 17 (LPS 17). Lot 137 and the triangular shaped lot that adjoins the southern boundary of the site are also zoned "Rural" under the MRS and "General Rural" under LPS 17. The public open space to the south-west of the site across Clayton Street and to the south‑east of the site between the site and the school is zoned "Urban" under the MRS and "Public Open Space" under LPS 17. The industrial properties to the west of Lot 137 are zoned "Industrial" under the MRS and "General Industrial" under LPS 17. The strip of open space to the north of the site is reserved for "Parks and Recreation" under both the MRS and LPS 17. The residential areas in the general vicinity of the site referred to in the previous part of these reasons are zoned "Urban" under the MRS and "Residential" under LPS 17.
Grouped dwellings are capable of approval in the exercise of planning discretion on the site under both the MRS and LPS 17.
Clause 30(1) of the MRS states as follows:
The Commission or a local authority exercising the powers of the Commission so delegated to it under the [PD Act] may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
The Zoning Table of LPS 17 indicates that, in the General Rural zone, a grouped dwelling is a use that is not permitted unless the City has exercised its discretion by granting planning approval after giving special notice in accordance with cl 9.4 of LPS 17. The site is located in an aircraft noise exposure area that is subject to cl 6.2 of LPS 17. Clause 6.2.4 of LPS 17 states as follows:
The local government may refuse any application for planning approval or impose conditions on any planning approval so as to:
(a)require noise attenuation measures to be incorporated into the design of buildings;
(b)require the registration of notifications on title advising of the potential for aircraft noise nuisance.
The City advertised the proposed development for public comment for a period of 28 days and received 12 submissions, of which three were objections. The City also referred the development application to the Department of Environment and Conservation, Westralia Airports Corporation, the Department of Water, the Department of Health, the Water Corporation, Western Power, Telstra and Alinta Gas. The Department of Environment and Conservation and Westralia Airports Corporation each objected to the proposed development on the basis of the site's exposure to aircraft noise under the currently endorsed ANEF plan. The other referral authorities did not object to the proposal. However, the Department of Health required that noise control measures be acceptable to the Department of Environment and Conservation.
Of particular significance in this review is State Planning Policy No 5.1 ‑ Land Use Planning in the Vicinity of Perth Airport (SPP 5.1). Section 241(1) of the PD Act requires the Tribunal to have due regard to SPP 5.1 in determining these proceedings. SPP 5.1 applies to land in the vicinity of Perth Airport which is, or may in the future, be affected by aircraft noise, including the site. SPP 5.1 is premised on the currently endorsed ANEF plan under which approximately 73% of the site and approximately 80% of the proposed dwellings are within the 25‑30 ANEF contour.
The objectives of SPP 5.1 are:
•protect Perth Airport from unreasonable encroachment by incompatible noise-sensitive development, to provide for its ongoing development and operation; and
•minimise the impact of airport operations on existing and future communities with reference to aircraft noise. (Clause 3).
SPP 5.1 contains the following introductory and background provisions:
1.1Perth Airport as an Element of Regional Development
Perth Airport is fundamental to the continued development of the Perth Metropolitan Region and the State as a whole. Investment in airport infrastructure and the economic opportunities associated with the operation of the airport are now recognised as an important, and perhaps critical[,] element in the prosperity of a city such as Perth.
Accordingly, the airport and its ongoing development need to be recognised in the planning of the region, and its operation protected as far as practicable from development with the potential to prejudice its performance. One of the main issues to be addressed in the planning of areas in the vicinity of the airport is aircraft noise, which is the focus of this Policy.
1.2Development in the Vicinity of Perth Airport
While aircraft noise is a significant environmental factor to be considered in relation to land use planning in the vicinity of Perth Airport, there are other issues which need to be addressed. A more sustainable pattern of development requires a greater level of consolidation, which means that it is not feasible to exclude all noise-sensitive development from the environs of Perth Airport.
There are a number of existing built-up areas in the vicinity of Perth Airport which are already affected by significant levels of aircraft noise, and the extent of affected areas is likely to expand in the future as a consequence of the growth in air traffic and the development of new runway facilities. The challenge in planning for these areas is to manage the impact of aircraft noise, taking into account the interests of existing communities and the needs of a growing metropolitan region.
The introductory and background provisions of SPP 5.1 also contain the following:
1.7Policy Measures
Policy measures have been based on the Building Site Acceptability table from [Australian Standard – Acoustics ‑ Aircraft Noise Intrusion ‑ Building Siting and Construction ‑ AS 2021 ‑ 2000 (Australian Standard)]. However, the policy measures included in this Policy provide more definitive guidance with respect to those matters identified as discretionary in the [Australian Standard]. [Footnote: '[The Australian Standard] is purely advisory, and has no direct statutory application.'].
Mr P McQueen, counsel for the applicant, referred to this provision in support of an argument that cl 4.4.4(2) of the SPP 5.1 provides an exception to Note 4 and Note 5 to Appendix 1: Building Site Acceptability (Appendix 1) in SPP 5.1. That argument is addressed, and rejected, later in these reasons, although, for reasons discussed below, the result in this case would be no different if the argument were correct. Specifically in relation to cl 1.7 of SPP 5.1, while its drafting is somewhat unfortunate, the footnote indicates that by the word "discretionary", cl 1.7 means "purely advisory" and that by "more definitive guidance", it means that SPP 5.1 has status as a State Planning Policy under the PD Act.
Clause 4.4 of the SPP 5.1 contains policy measures in relation to planning proposals in the 25‑30 ANEF contour. Relevant provisions are set out and discussed later in these reasons. In addition, Appendix 1 identifies building site acceptability for the purposes of SPP 5.1 in a table on the basis of the building type and the ANEF contour. Appendix 1 states that building type house, home unit or flat is "acceptable" at less than 20 ANEF, "conditionally acceptable" at 20‑25 ANEF, "unacceptable (Note 4)" at 25‑30 ANEF and "unacceptable (Note 4)" at 30‑35 ANEF.
Note 4 and Note 5, which is also relevant, are set out and discussed later in these reasons.
On 21 March 2007, the Council of the City resolved that the proposed development is consistent with SPP 5.1 and recommended that the Commission approve the development application subject to conditions including the following:
All dwellings and the communal facility building being constructed with the package of noise attenuation measures (as listed by the applicant) to comply with, or exceed, the standards specified in [the Australian Standard] …
A Notification under Section 70A of the Transfer of Land Act 1893 must be registered over the Certificate of Title to the land the subject of the proposed development prior to the issue of a building licence to notify owners and prospective purchasers of the land that the land is located above the 20 ANEF Contour as identified by Figure 1 of Western Australian Planning Commission Statement Planning Policy 5.1 and may be affected by aircraft noise.

Issues for determination

The principal issues in this review are:
1)whether the proposed development is inconsistent with SPP 5.1; and, if so,
2)whether the provisions of SPP 5.1 with which the proposed development is inconsistent should be departed from in the circumstances of the case.

Is the proposed development inconsistent with SPP 5.1?

The Tribunal considers that the proposed development is inconsistent with SPP 5.1 in five respects.
First, the proposed development is inconsistent with cl 4.4.4(1) of SPP 5.1 which states as follows:
No further development is to take place where it would result in an increase in the number of people likely to be accommodated, unless it is consistent with the zoning and density coding of the land.
The Commission relied on expert planning evidence from Mr Joe Algeri, who is a consultant town planner. Mr Algeri acknowledged that the immediate locality of the site is not rural in character, having regard to the residential and industrial uses adjoining and adjacent to the site. However, Mr Algeri noted, correctly, that the site is still zoned "Rural" under the MRS and "General Rural" under LPS 17. He expressed the opinion that the proposed development is inconsistent with the Rural zoning.
The Tribunal agrees with Mr Algeri that the Rural zoning of the site does not contemplate intensive residential development of the nature that is proposed. While a grouped dwelling is a land use that is capable of approval under both the MRS and LPS 17, intensive residential use in the form of 139 dwellings occupying most of the site is inconsistent with Rural zoning. In this regard, although LPS 17 is not the operative planning scheme for the purposes of this review, it is relevant to note that cl 4.2 of LPS 17 states the intention of the Scheme that the following objectives will be applied by the City to determine the appropriateness of discretionary uses, including grouped dwellings, in the General Rural zone:
The objectives of the General Rural Zone are to ‑
(a)facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
(d)ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
Having regard to these objectives, it could not be determined that an intensive residential development of the nature proposed is appropriate in the General Rural zone under LPS 17.
As a matter of orderly and proper planning, as Mr Algeri explained, the proposed development is premature and should only be pursued subject to a rezoning amendment. The fact that the surrounding locality does not have a rural character does not alter the correctness of this proposition. Zoning is a fundamental element of land use planning. It would be contrary to orderly and proper planning to, in effect, ignore the contemplation of the applicable zoning on the basis that it no longer accords with the character of the locality. Rather, the zoning must be changed.
Mr Algeri's evidence in relation to the inappropriateness of the proposed development as a matter of orderly and proper planning is further supported by the following emphatic statement in cl 4.4.1(5) of SPP 5.1:
Under no circumstances should Rural or other non‑residential zoned land be rezoned for residential development or any other form of development involving building types identified as unacceptable with reference to the Building Site Acceptability table in Appendix 1.
While the proposal does not involve an application for rezoning, this provision conveys a clear implication against any substantial residential development on Rural zoned land.
Second, the proposed development is inconsistent with Appendix 1 which identifies the part of the site within the 25‑30 ANEF contour as "unacceptable" for building types house, home unit and flat. Dr Robert Bullen, an acoustics engineer with over 25 years' experience in the assessment of aircraft noise who was one of the authors of a study of reaction to aircraft noise which formed the basis of the ANEF system of land use planning, described the building site acceptability table in the Australian Standard on which Appendix 1 is substantially based as "the only generally-accepted well-grounded method of taking account of aircraft noise impacts when making [planning] determinations". Dr Bullen notes that the Australian Standard is endorsed by the organisations represented on its Committee, which include Airservices Australia, the Association of Australian Acoustic Consultants, the Australian Acoustical Society and the Australian Air Transport Association. Dr Bullen gave the following evidence which the Tribunal accepts in light of his qualifications and extensive, relevant experience:
I believe [the Australian Standard's] recommendations are consistent with current practice and community expectations, and should be overridden, either toward more or less leniency in land use planning decisions, only in very unusual circumstances.
Dr Bullen referred to the social survey research of which he was one of the authors and which led to the ANEF system. Among other things, the study found that the number of people "highly annoyed" or "seriously affected" by aircraft noise in existing aircraft noise exposed populations increased from 12% at 20 ANEF to 18% at 25 ANEF and to 27% at 30 ANEF. The number of people "moderately" affected increased from about 45% at 20 ANEF to about 56% at 25 ANEF and to about 66% at 30 ANEF. Dr Bullen explained that the Committee developing the Australian Standard concluded that at a point where 12% of people would be seriously affected, measures should be required to try and limit the potential impacts by providing acoustic insulation to their houses. Hence, the Committee determined that, at 20‑25 ANEF, houses, home units and flats are "conditionally acceptable". Dr Bullen described the 20‑25 ANEF contour as "the grey area" where conditions to limit impact by providing acoustic insulation can be contemplated. However, the Committee considered that, at a point where 18% of people would be seriously affected by aircraft noise, "the disbenefits to noise‑sensitive people are judged to outweigh the benefits to others wishing to live in the area, and new residential development is considered 'unacceptable'". Dr Bullen said:
This clearly represents a value judgment, but it is a judgment that has been endorsed by planning authorities throughout Australia. In my experience the ANEF system is more often criticised for being too lenient, in allowing development up to the 20 ANEF contour, than for being too strict. However, my view is that it provides a fair, consistent and justifiable method of taking account of aircraft noise impacts in planning decisions. There are, of course, exceptional circumstances that would require departure from the system, but in my view these would be rare.
Having regard to Dr Bullen's qualifications and significant, relevant experience, the Tribunal accepts this evidence.
As noted earlier, after the word "unacceptable" in relation to the siting of a house, home unit or flat in the 25‑30 ANEF contour, Appendix 1 includes a reference to Note 4. Note 4 states as follows:
This Standard does not recommend development in unacceptable areas. However, where the relevant planning authority determines that any development may be necessary within existing built-up areas designated as unacceptable, it is recommended that such development should achieve the required ANR determined according to Clause 3.2. For residences, schools, etc., the effect of aircraft noise on outdoor areas associated with the buildings should be considered. (Emphasis added)
Appendix 1 has been substantially, if not entirely, copied from Table 2.1 of the Australian Standard. The reference in Note 4 to cl 3.2 is to that clause in the Australian Standard. The acronym "ANR" refers to "aircraft noise reduction" in accordance with the indoor design sound levels set out in Table 3.3 of the Australian Standard. Table 3.3 of the Australian Standard has been substantially, if not entirely, reproduced as Appendix 2: Indoor Design Sound Levels (Appendix 2) in SPP 5.1.
The applicant contends that the proposed development is "necessary within existing built-up areas" and consequently contemplated by Note 4 to Appendix 1. It relies on the evidence of Mr Edward Turner, a consultant town planner, and Mr Phillip Russell, the City's coordinator of statutory planning. Mr Turner and Mr Russell consider that the proposed development is "necessary" because it is consistent with urban consolidation contemplated by Network City. They note that the site is well located in terms of access to public transport, shopping and other community facilities.
In contrast, Mr Algeri observes that Network City is a broad, strategic document that is not intended to override considerations of orderly and proper planning or environmental planning considerations such as aircraft noise. Mr Algeri considers that "necessary" relevantly means that there is already in place a planning framework that contemplates development of the land for residential purposes at the density proposed.
The Tribunal prefers Mr Algeri's evidence on this issue. The adjective "necessary" is relevantly defined in The Macquarie Dictionary (4th Edition, Macquarie, Sydney, 2005) at page 958 as:
1. that cannot be dispensed with: a necessary law. 2. happening or existing by necessity. 3. acting or proceeding from compulsion or necessity; not free; involuntary; a necessary agent. … 5. something necessary, indispensable, or requisite.
The Tribunal, as the relevant planning authority, could not determine that the proposed development may be "necessary". Although the proposed development is capable of approval in the exercise of planning discretion, as found previously, its scale is contrary to the contemplation of the zoning. Furthermore, while urban consolidation is clearly an objective of Network City, and is also recognised as an objective of planning for the Perth Metropolitan Region in cl 1.2 of SPP 5.1, it does not override orderly and proper planning processes as a necessary step towards redevelopment. In particular, in order for the Tribunal to be able to conclude that the proposed development may be "necessary", the land would need to be rezoned for residential purposes and the allocated residential density coding would need to contemplate the scale of the proposed development. Moreover, it is not "necessary" to approve the proposed development in order to achieve the intention of Network City. As Mr Algeri observed, there are many other areas in Perth which are also identified by Network City but which are not subject to the same level of aircraft noise as is the site.
Mr Turner and Mr Russell also consider that the site is "within existing built-up areas designated as unacceptable". They regard the site as an "island" of Rural zoned land surrounded by residential land, including the tapering finger to the north of the site that is also designated "unacceptable" for residential development as it is within the 25‑30 ANEF contour.
In contrast, Mr Algeri considers that the site is not "within" the built‑up area to the north, because it is a large "area" in itself and is part of the finger or corridor of generally open land between Perth Airport and the site.
The Tribunal prefers Mr Algeri's evidence in relation to this issue. As Attachment A clearly shows, the site is significantly larger than the lots in the "built‑up areas designated as unacceptable" to the north of the site. The site is, as Mr Algeri observed, a "area" in itself, because of its size. Furthermore, as Mr Algeri observed, the site forms part of a finger or corridor of land between the airport and the northern boundary of the site which is generally open and free of substantial physical development in the form of structures, with the principal exception of some industrial buildings. In common with most of the properties between the airport and the northern boundary of the site, the site is relatively large, open and generally devoid of substantial physical development in the form of structures. The site is not therefore within existing built-up areas designated as unacceptable.
Third, the proposed development is inconsistent with SPP 5.1 because it is a "greenfield site" within the meaning of Note 5 to Appendix 1. Note 5 states as follows:
In no case should new development take place in greenfield sites deemed unacceptable because such development may impact airport operations.
The term "greenfield site" is not defined in SPP 5.1 or in the Australian Standard. However, the adjective "greenfield" is relevantly defined in The Macquarie Dictionary (4th Edition, Macquarie, Sydney, 2005) at page 624 as follows:
1. of or relating to a location for a business where there has not previously been any building; a greenfield site. Compare brownfield.
The adjective "brownfield" is defined at page 188 as follows:
of or relating to an urban site which has been previously developed or used; a brownfield redevelopment. Compare greenfield.
The expression "greenfield site" in the Australian Standard was discussed in two cases identified by the parties. In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2001] WATPAT 19; 28 SR (WA) 20, the Town Planning Appeal Tribunal found at [29] that a town planner's classification of the development site in that case as a "greenfield site" on the basis that the adjoining land was used for grazing, land to the north was zoned "Rural" and used for golf, and land to the east was public open space, "appears to be appropriate to the site". (The land which was the subject of that case was a property located a short distance to the south-west of the site across Clayton Street and the reference to the land zoned "Rural" and used for golf appears to be a reference to the site and Lot 137.) However, the Tribunal does not appear to have referred to the ordinary meaning of the term "greenfield site" as disclosed in a commonly used Australian dictionary.
In Ryan v Port Stephens Council [2008] NSWLEC 66, Commissioner Brown in the New South Wales Land and Environment Court recently observed as follows:
I agree with Mr Brady [an acoustics engineer] that a greenfield site is more akin to an area of vacant land on the edge of an existing urban development that has been set aside for the expansion of the adjoining urban development. It suggests the opportunity for larger scale development and not the development of a single lot located amongst other developed land.
However, again, it does not appear that the Court consulted the ordinary meaning of the words "greenfield site" as disclosed in a dictionary.
The town planning expert witnesses sought to assist the Tribunal in relation to the meaning of the expression "greenfield site". Mr Turner considered that the site is not a greenfield site, because it is in a built‑up urban area. Mr Russell expressed a similar view. In his opinion, a greenfield site is at the edge of the urban environment, whereas the site is within the urban environment. Mr Turner also expressed the opinion that the term "greenfield site" has probably been imported from the United Kingdom. He said that in Europe there is a fairly clear demarcation between built‑up areas and the country. When a town is developed, it expands from the built-up area to greenfield sites which are outside the original built-up areas. He, therefore, explained that a greenfield site is a "rural site".
In contrast, Mr Algeri gave evidence that the term "greenfield site" describes "the physical state of the land" and typically refers to a larger tract of land with little or no visible physical development. Mr Algeri considers that the development site in this case is a "greenfield site", because of its size and because of the absence of physical structures.
While the other noise experts did not express an opinion in relation to this question, Dr Bullen gave evidence that, in his opinion, the term "greenfield site" applies to the development site in this case "as it is a large area with no existing development of the type considered".
The Tribunal considers that a greenfield site is a relatively large development site that is generally devoid of substantial physical development in the form of buildings or other structures. This interpretation of the term accords with the ordinary meaning of the words disclosed in the dictionary definition set out earlier and the thoughtful evidence of Mr Algeri, an experienced town planner, and Dr Bullen, who has had considerable experience in relation to the operation and application of the Australian Standard that includes the term. As Commissioner Brown observed in Ryan v Port Stephens Council, a greenfield site suggests the opportunity for larger scale development and not the development of a single lot among other similar lots. However, while as a matter of orderly and economic development of land, greenfield sites are usually located at the urban development front, the ordinary and natural meaning of the words in Australia does not require that this be the case. Nor does the natural and ordinary meaning of the words require that adjoining or adjacent land should be open and without physical development.
It follows that the site of the proposed development is a "greenfield site". As the site is deemed unacceptable under SPP 5.1, the Policy states that "in no case should [the proposed] development take place".
Fourth, the proposed development is inconsistent with SPP 5.1, because the noise impact of aircraft on the occupants of the proposed development would be unacceptable. Clause 4.4.4(2) of SPP 5.1 states as follows:
In the case of development which is subject to discretionary control under an operative town planning scheme (as provided for under clause 4.4.1), the impact of aircraft noise on the users or occupiers of the development should be taken into consideration in the determination of applications and where relevant in the imposition of conditions of approval.
Mr McQueen submits that this clause is an exception to the operation of Note 4 and Note 5 to Appendix 1. This submission is incorrect. It is clear from SPP 5.1, when read as a whole, that the building site acceptability criteria in Appendix 1 is critical to the operation of SPP 5.1. Clause 4.4.4(2) does no more than to require a planning authority to consider the impact of aircraft noise on the users and occupiers of the development when considering an application which is capable of discretionary approval. However, even if cl 4.4.4(2) were an exception to Note 4 and Note 5, it would not lead to a different result in this case, because the noise impact of aircraft would be unacceptable, at least in relation to the 80% of dwellings in the 25‑30 ANEF contour, for the reasons discussed below.
The Tribunal had the benefit of evidence from the following expert witnesses to assist it to determine the likely impact of aircraft noise on residents and visitors in the proposed development:
•Mr Daniel Lloyd, an acoustics engineer with over 20 years' experience, who gave evidence on behalf of the applicant;
•Mr Terry George, an acoustics engineer with over 10 years' experience, who gave evidence on behalf of the applicant;
•Dr Russell Synnot, an environmental scientist, who gave evidence on behalf of the applicant;
•Mr Torben Petersen, who gave evidence on behalf of the Commission;
•Mr John MacPherson, an acoustics engineer with 31 years' experience and the Principal Environmental Noise Officer of the Department of Environment and Conservation, who gave evidence on behalf of the Commission; and
•Dr Robert Bullen, who gave evidence on behalf of the Commission.

The noise experts relevantly agree that it is technically feasible to provide treatment for the proposed dwellings to achieve the indoor design sound power levels set out in Appendix 2, provided that windows are closed. Mr Kevin Chen gave evidence on behalf of the applicant that the proposed development will be constructed with the noise mitigation features required by the noise experts to achieve the indoor design sound power levels referred to in Appendix 2.
However, Dr Bullen and Mr MacPherson, and, from a planning perspective, Mr Algeri, each raised concerns about granting approval to the proposed development having regard to noise impacts, even if the development were carried out in a manner that will achieve the indoor design sound power levels in Appendix 2. Mr MacPherson and Mr Algeri both described the internal environment that would be created in order to achieve an acceptable level of acoustic amenity as a "bunker". Mr MacPherson said that residents of the proposed development would not be able to enjoy, for example, the sound of birds chirping in the morning, because windows would need to be shut in order to sleep. Dr Bullen's concern is that approval of the proposed development would, in effect, increase the "grey area" of conditional acceptability under SPP 5.1 from the 20‑25 ANEF contour, as determined by the authors of the Australian Standard and, in consequence, by SPP 5.1, to 20‑27 ANEF.
Although, as Mr McQueen submits, cl 4.4.5 and cl 4.4.6 of SPP 5.1 and cl 6.2.4 of LPS 17 contemplate the possibility of approving development involving building types identified as "unacceptable" with reference to Appendix 1, where conditions of development approval require noise insulation to be provided and notice to be placed on titles advising of potential for noise nuisance, the Tribunal considers that it would be inappropriate to grant development approval in the circumstances of this case subject to such conditions. Significantly, the proposed development involves a substantial residential development with a large number of residents. The noise experts agree that, according to social surveys that were used to produce the ANEF system and which have been referred to in planning assessments in Australia for over 25 years, 20% of people are "highly annoyed" or "seriously affected" by aircraft noise at 27 ANEF. It is inappropriate to introduce a large residential population into such a significantly noisy environment in which a substantial proportion of the incoming population will be highly annoyed or seriously affected and in which residents would need to keep all windows closed to achieve an acceptable internal acoustic environment while aircraft are flying. Furthermore, given the substantial size of the proposed development, approval of the development application would, as Dr Bullen considers, in effect, increase the "grey area" of conditional acceptability to 27 ANEF, whereas the threshold has been established under the Australian Standard, and more particularly under SPP 5.1, at 25 ANEF. This is not to say that a small residential development on Rural zoned land may not be acceptable, in the exercise of discretion, even though it is within the 25‑30 ANEF contour, if conditioned to require noise insulation and notification on title. Rather, it is to say that the proposal is a substantial development that would introduce a large residential population into a significantly noisy environment, which is not acceptable.
Dr Synnot considers that notification on title and specific and detailed information to potential purchasers and renters would reduce the proportion of people seriously affected by aircraft noise at the site. Dr Bullen agrees that notification and information is likely to produce some reduction in the proportion of people seriously affected by aircraft noise. However, he considers that it is likely to be a small reduction, given that, of the 20% seriously affected, many may not describe themselves as noise-sensitive people. In contrast, Dr Bullen considers that notice and information below the 20 ANEF contour is likely to produce a greater reduction in the number of people seriously affected by aircraft noise, because the 12% of people seriously affected by aircraft noise at 20 ANEF are likely to substantially comprise people who are highly noise‑sensitive in any case and who would, therefore, be aware of their sensitivity. Given the logic of Dr Bullen's position, and the absence of any empirical research to support Dr Synnot's position, the Tribunal considers that notice and information is likely to result in only a small reduction in the proportion of the residents of the proposed development seriously affected by aircraft noise.
Furthermore, the proposed development is unacceptable in relation to aircraft noise that would be experienced in external areas, such as the private open space of dwellings. As noted earlier, the noise experts agree that the site will be subject to an average of approximately 206 daily aircraft movements at the ultimate capacity contemplated in the currently approved ANEF plan, with 17% of aircraft movements, both during the day and at night, above 80 dB(A). The experts also agree that the average maximum noise level of all aircraft movements will be 74 dB LAmax avg. The Tribunal accepts Mr MacPherson's evidence, which was not questioned or contradicted, that noise in this range would be high enough to disturb conversation, such as may occur around a barbeque, and disturb quiet activities, such as reading, relaxing or gardening. As noted earlier, 80 dB(A) is approximately equivalent to the noise level of a truck travelling at 80 kilometres per hour on a highway and passing at 15 metres.
Mr Turner considers that the noise in the external parts of the proposed development is acceptable, because it is a "discretionary" noise that would give warning as it increases in level, thereby allowing residents to "retreat indoors" and obtain "respite". Mr Turner also notes that residents cannot always expect a quiet domestic environment. Some residences are subject to noises from other transport modes, such as road or rail.
Mr Russell considers that the proposed development is acceptable in relation to external noise, because people are generally "tolerant" of noise and they "won't be living" in their courtyards.
In contrast, Mr Algeri considers that the proposed development is unacceptable in relation to noise to outdoor areas. He considers that the effect of aircraft noise on outdoor areas is particularly relevant in Perth, where outdoor living is "an integral feature of the design of contemporary housing and suburban lifestyle due to Perth's climate".
The Tribunal prefers the evidence of Mr Algeri on this issue. The evidence of Mr Turner and Mr Russell is not a meaningful or appropriate response to a serious environmental planning constraint on development and use of the site. Even at the current level of aircraft movements affecting the site, a daily average of 41 events above 70 dB(A) in early 2007, it is not reasonable to expect residents to have to "retreat indoors" in order to maintain a conversation. Much less would it be acceptable to expect residents at full capacity of the airport in accordance with the currently approved ANEF plan to have to retreat indoors 206 times on average per day. In light of the proportion of residents who would be "seriously" or "moderately" affected by aircraft noise, according to the social surveys on which the ANEF system is based, a large number of people would not be "tolerant". While people do not "live" in their private open space, they should be able to use that area and enjoy a reasonable level of amenity while doing so. Although other residential properties may be subject to noise impacts from road and rail transport, as Mr MacPherson observed, there are options available to control noise impacts from road and rail that affect the private open space of dwellings, such as noise barriers. There is no equivalent option in relation to aircraft noise, unless the external areas are covered or enclosed, in which case they cease to be open space.
The noise experts agree that, to protect against noise when aircraft are operating, an outside structure would be required. Two options were discussed in detail. The first option involves the provision of a roof to the outdoor area constructed of 0.42 millimetre thick sheet metal, with R3 insulation to the underside and solid 10 millimetre plasterboard. This option would reduce noise to the outside area under the roof by two to three dB, such that the noise level would be up to that experienced at 25 ANEF. The second option involves the provision of an outdoor area that can be fully enclosed by a roof as in the first option, solid brick walls and minimum 6.38 millimetre thick glass in bifold openable doors. This option would reduce noise by between 8 dB and 15 dB with doors closed, such that noise levels would be up to those experienced in 20 ANEF locations.
Mr McQueen submits that the first option would move the development to a "conditionally acceptable area" under SPP 5.1. However, this option would still result in up to 18% of residents being seriously affected by aircraft noise, even while under the proposed structure. Up to 20% of residents would be seriously affected by aircraft noise outside the proposed structure.
The second option would have the benefit of reducing noise to an acceptable level, provided that the bifold doors are closed and remain closed. However, residents who are seriously affected by aircraft noise would need to close and open the bifold doors up to an average of 206 times per day. This is clearly not a meaningful response to a significant environmental planning constraint on the development and use of the site.
Furthermore, as Mr Algeri observed, either of the options discussed would be contrary to the intent of the Residential Design Codes of Western Australia (2008) (Codes) in relation to open space and outdoor living areas. Although the Codes do not strictly apply to the proposed development, Mr Turner indicated that the Codes can and should be used for guidance. The Codes would exclude both of the proposed options from the calculation of open space and outdoor living area. It is not appropriate to approve a development where, in order to address a particular environmental planning constraint, the "open space" area cannot satisfy the intent of Codes, even if the Codes are only referred to for guidance.
The applicant relied on the approval of two other planning applications in relation to land in the 25‑30 ANEF contour. The first is the approval of a development application in Ryan v Port Stephens Council and the second is the approval by the Commission of two Outline Development Plans in Guildford, which also included a portion of land within the 30‑35 ANEF contour.
However, both of these approvals are distinguishable from the circumstances of the case before the Tribunal. Ryan v Port Stephens Council concerned an application for the construction of a single house on a 4,181 square metre lot. The Guildford Outline Development Plans involved the consolidation of nine existing residential properties with houses, ranging in area from 610 square metres to 2.1 hectares, in two groups separated by a street block, and creation of 38 residential properties. The land was zoned "Urban" under the MRS and "Residential Development" under the City of Swan Town Planning Scheme No 9, and is located within the centre of the Guildford townsite. While approval of the planning applications in the Port Stephens and Guildford cases may have been acceptable when assessed under the Australian Standard and, in the Guildford case, under SPP 5.1, the planning circumstances in each of those cases was fundamentally different to the case before the Tribunal which involves the construction of 139 dwellings on a 7.2 hectare rural zoned lot that is not currently used for residential purposes.
Fifth, having regard to the Tribunal's earlier findings, the proposed development is inconsistent with the objectives of SPP 5.1. In particular, the Tribunal accepts Mr Petersen's evidence that the proposed development has the potential to adversely impact airport operations, because it would introduce a substantial, new residential population into the 25‑30 ANEF contour. This is an unreasonable encroachment by incompatible noise-sensitive development. Furthermore, for reasons discussed, the proposed development does not minimise the impact of airport operations on future communities with reference to aircraft noise, because it involves the introduction of a substantial, new community on land which is not presently used for residential purposes within the 25‑30 ANEF contour.

Should SPP 5.1 be departed from?

As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], a policy will be expected to guide the exercise of planning discretion, but may not replace discretion in the sense that it is to be inflexibly applied regardless of the merits of the particular case. Nevertheless, the relevant consideration in many applications will be why the policy should not be applied or "why the planning principles that find expression in the 'policy' are not relevant to the particular application".
There is no cogent reason, in the circumstances of this case, as to why SPP 5.1 should be departed from and the proposed development approved. Most of the submissions put forward on behalf of the applicant have been addressed earlier in these reasons. In particular, while urban consideration is an objective of regional planning for Perth, it does not relevantly warrant approval of the proposed development in the circumstances. Furthermore, the impact of aircraft noise on residents of the development would be unacceptable, at least in relation to the 80% of dwellings in the 25‑30 ANEF contour, even if the development were conditioned to require insulation and notice and information about aircraft noise.
The only additional substantive argument put for departing from SPP 5.1 was based on the evidence of Dr Synnot that the currently approved ANEF contours may not ultimately prove to be correct, on account of factors such as fewer numbers of aircraft than currently predicted, quieter aircraft, different flight paths and ascent and descent rates keeping aircraft higher over the site. Dr Bullen agreed that technological advances and regulation are likely to decrease future noise levels from aircraft and therefore to slightly reduce ANEF contours. However, approach and departure flight paths for the east‑west runway are likely to remain directly over the site. Furthermore, as Mr Petersen indicated, descent rates over the site are unlikely to change because of the proximity of the airport.
Clause 1.5 of SPP 5.1 contemplates that the noise modelling that produces the ANEF contours will be reviewed approximately every five years. It would be highly speculative and therefore contrary to orderly and proper planning to attempt to prejudge this process to determine whether the site will ultimately be subjected to no higher than 25 ANEF based on Dr Synnot's evidence. In Dr Bullen's words, this "runs the risk of exposing future residents to unacceptable levels of aircraft noise", which is plainly inappropriate.
Consequently, the Tribunal does not consider that SPP 5.1 should be departed from in the circumstances of this case.

Conclusion

The proposed development is materially inconsistent with SPP 5.1. In particular, the Rural zoning does not contemplate intensive residential development of the nature proposed, about 80% of the proposed dwellings are located in a noise contour designated as "unacceptable", the site is a greenfield site where no new development should take place, and, at least in relation to the 80% of dwellings in the 25‑30 ANEF contour, the noise impact of aircraft would be unacceptable. There is no cogent reason to depart from SPP 5.1 in the circumstances of the case.
In consequence, the proposed development is contrary to orderly and proper planning. The decision of the Commission to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse development approval for the construction of 139 grouped dwellings and a community centre at Lot 241 Clayton Street, Bellevue is affirmed.

I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

Attachment A

Attachment B