Protect Penrith Action Group Inc v Penrith City Council

[2015] NSWLEC 199

Land and Environment Court

New South Wales

Medium Neutral Citation:	Protect Penrith Action Group Inc v Penrith City Council [2015] NSWLEC 199
Hearing dates:	30 November 2015
Date of orders:	30 November 2015
Decision date:	30 November 2015
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [42]
Catchwords:	JUDICIAL REVIEW – decision to grant development consent for place of public worship – whether failure to consider relevant matter – aircraft noise intrusion from proposed new airport – applicable local environmental plan requiring consideration of relevant matter – local council considered and was satisfied about relevant matter – proceedings dismissed – order that costs follow the event
Category:	Principal judgment
Parties:	Protect Penrith Action Group Inc (Applicant) Penrith City Council (First Respondent) Muhammadi Welfare Association Inc (Second Respondent)
Representation:	Counsel: Mr J Loxton (Applicant) Ms V McWilliam (First Respondent) Mr P E King (Second Respondent)   Solicitors: Robert Balzola & Associates (Applicant) Sparke Helmore (First Respondent) The People’s Solicitors (Second Respondent)
File Number(s):	40130 of 2015
Publication restriction:	No

Judgment

A development consent is challenged

1. A local community group, Protect Penrith Action Group Inc (‘the Action Group’), has brought proceedings to judicially review the determination of Penrith City Council (‘the Council’) to grant consent to a development application made by a non-profit Muslim community organisation, the Muhammadi Welfare Association (‘the Welfare Association’), for the development of the construction of a meeting hall building, shed, carpark, associated landscaping and waste water management system, and use as a place of public worship (‘the development’) on land at 81-89 Clifton Avenue, Kemps Creek (‘the Kemps Creek land’).

2. Although the Action Group had pleaded many grounds of challenge, at the hearing today it relied on only one ground, the failure to consider and be satisfied about the relevant matter in cl 6.14(3)(c) of Penrith Local Environmental Plan 2010 (‘PLEP 2010’). This clause required the Council, as the consent authority with respect to the Welfare Association's development application, before determining the development application, to be satisfied that the development will meet an Australian Standard concerning aircraft noise intrusion, AS 2021–2000, with respect to interior noise levels for the development.

3. The Action Group contended that the Council failed to consider and be satisfied of this matter in determining the development application. The Council and the Welfare Association joined issue with the Action Group and relied on the evidence of consideration in the Council officer's report to the Council meeting and the recommended conditions of consent that addressed the matter, which were considered and adopted by the Council at its meeting on 24 November 2014 when the Council determined to grant consent to the development application.

The applicable local environmental plan

4. The Action Group's grounds of challenge changed because of confusion as to which local environmental plan applied at the time of the Council's determination. The Action Group had originally thought that Penrith Local Environmental Plan No 201 (Rural Lands) (‘PLEP No 201’) applied at the time of the Council's determination. PLEP No 201 had a particular provision, cl 31, dealing with airport noise. That clause provided that the Council "shall not consent to the carrying out of development for the purposes of … churches … on land within the boundaries of the 20 ANEF contour line" (cl 31(2)(a)), and that the Council "shall only consent to the carrying out of development within the boundaries of the 20 ANEF contour line where it is satisfied that the development will not hinder the future development of the Badgery’s Creek Airport" (cl 31(3)).

5. The Action Group thought that PLEP No 201 and cl 31 in particular applied because the Action Group had read on the Council's website that PLEP No 201 still applied to Penrith City Council, notwithstanding the coming into force of PLEP 2010.

6. In fact, however, PLEP No 201 only continued to apply to certain lands that were made deferred matters when PLEP 2010 came into force. PLEP 2010 commenced on 22 September 2010. It was a new local environmental plan that repealed all local environmental plans and deemed environmental planning instruments that applied to the land on the commencement of PLEP 2010 (cl 1.8). One of those local environmental plans was PLEP No 201. However, there were specified parcels of land to which PLEP 2010 did not apply. These were the parcels of land identified on the Land Application Map for PLEP 2010 as a deferred matter (cl 1.3).

7. The Kemps Creek land was not identified on the Land Application Map as a "deferred matter". Accordingly, PLEP 2010 applied to the land from the commencement of PLEP 2010 on 22 September 2010.

The relevant matter to be considered

8. From its commencement, PLEP 2010 had a particular provision, cl 6.14, dealing with development of land in the flight paths of the site reserved for the proposed airport at Badgerys Creek. Clause 6.14 was in force until it was repealed and replaced by an alternative provision to similar effect, cl 7.9, by Penrith Local Environmental Plan 2010 (Amendment No 4) which came into effect on 25 February 2015. This was after the Council's determination to grant consent on 24 November 2014.

9. Clause 6.14 of PLEP 2010 applied to certain land in the vicinity of the proposed Badgery’s Creek Airport site. Clause 6.14(2) provided:

This clause applies to development that:

(a)   is on land that:

(i)   is near the proposed Badgery’s Creek Airport site, and

(ii)   is in an ANEF contour of 20 or greater, and

(b)   the consent authority considers is likely to be adversely affected by aircraft noise.

10. The term "ANEF contour" was defined in cl 6.14(4) to mean:

ANEF contour means a noise exposure contour shown as an ANEF contour on the map in Appendix U of the draft environmental impact statement for the Second Sydney Airport, copies of which are deposited in the office of the Council and of the Commonwealth Department of Infrastructure, Transport, Regional Development and Local Government.

11. The Kemps Creek land met both of these criteria. It was near the proposed Badgery’s Creek Airport site and it was in an ANEF contour of 20 or greater. In respect of the latter, the statement of environmental effects lodged by the Welfare Association with its development application identified the Kemps Creek land to be in the ANEF contour of 20 or greater.

12. Clause 6.14(3) required the Council to consider and be satisfied about certain matters concerning aircraft noise. Of relevance to the Action Group's challenge is cl 6.14(3)(c)(i) which stated:

Before determining a development application for development to which this clause applies, the consent authority:

…

(c)   must be satisfied that the development will meet AS 2021–2000 with respect to interior noise levels for the purposes of:

(i)   if the development will be in an ANEF contour of 20 or greater – child care centres, educational establishments, entertainment facilities, hospitals, places of public worship, public administration buildings, or residential accommodation, …

13. Although the Welfare Association originally proposed the use of the development to be a "community facility", subsequently the Council considered it to be better categorised as a "place of public worship", having regard to the fact that there will be many days when the meeting hall will be used for religious gatherings. Both uses, community facility and place of public worship, were permissible with consent in the relevant zone. The significance of the purpose of the use, being a place of public worship, was that it made the relevant consideration in cl 6.14(3)(c)(i) of the LEP 2010 applicable. The Welfare Association's development application was thereafter assessed on the basis that the purpose of the use was as a place of public worship.

Consideration in the development application

14. In its development application and supporting documents, the Welfare Association addressed the subject matter of the interior noise levels of the proposed buildings as a result of aircraft noise from the proposed Badgerys Creek Airport.

15. In its original statement of environmental effects dated October 2013, the Welfare Association's planning consultant referred (mistakenly) to cl 31 of PLEP No 201 and commented:

Council has advised that building construction with respect to interior noise levels must meet the requirements of AS 2021–2000 (Acoustics – Aircraft noise intrusion – Building siting and construction) where the ANEF exceeds 20, which is within the building area.

An aircraft noise impact statement for the proposal prepared by an accredited acoustical consultant is required in accordance with the DCP requirements.

The area of the development on the site is within the 20 ANEF contour, and outside the 25 ANEF contour. As a community facility the development is permissible.

The building will be fitted with climate control for heating and cooling, and all activities will be inside except for landscape development and bushcare, where noise from aircraft would not be a major issue for the community users. Amplification will only be used inside, for normal speech only, and that no disturbance is likely outside the building and not beyond the boundaries of the property.

There are a number of issues with the development application that need to be satisfied. The acoustic report will be a major expense for the applicant. If Council requires more information concerning aircraft noise, we request it be considered as a condition of consent.

16. In fact, the Council did require the submission of an acoustic report. On 14 August 2014, the Welfare Association's planning consultant lodged with the Council an amended acoustic report for the development (the issue date of the report was stated to be 28 July 2014). The section dealing with aircraft noise stated:

The proposal falls within the ANEF 25 Badgerys Creek Airport contour line. Table 3.13 in AS 2021–2000 was determined for aircraft dBA. Using a DL of 5000 m and a DS of 200 m the aircraft dBA will be 77 dBA.

AS 2021 requires that the indoor design sound levels from aircraft fly-overs be 50 dBA within public buildings. An Aircraft Noise Reduction (ANR) of 27 dBA is required for the main hall.

17. Section 7 of the acoustic assessment titled Recommendations set out:

the type of construction required to achieve the noise goals as previously recommended. These constructions have been certified during the construction certificate stage.

18. In the conclusion, the acoustic assessment reiterated:

An Aircraft Noise Reduction (ANR) of 27 dBA is required for the main hall.

and:

It is concluded that the proposed development is predicted to comply with the noise goal providing the construction details as given in Section 7 above are adhered to.

Consideration by the local council

19. The Council officer’s report to the Council meeting on 24 November 2014 correctly identified that PLEP 2010 applied to the Kemps Creek land and assessed the development on the basis that it was for the purpose of a place of public worship. The Council officer's report addressed cl 6.14 of PLEP 2010:

Clause 6.14 – Development of land in the flight paths of the site reserved for the proposed Second Sydney Airport.

The objective of this clause is to ensure that the development in the vicinity of the proposed Badgery’s Creek Airport site:

(a)   has regard to the use or potential future use of the site as an airport, and

(b)   does not hinder or have any other adverse impact on the development or operation of an airport on that site.

The proposed development will be located within the 20 ANEF contour and outside the 25 ANEF contour. The proposed building will include climate control for heating and cooling as all activities will be inside buildings where noise from aircraft would not be a major issue for the users. Amplification will only be used inside the halls for normal speech and with closed windows and doors so that there is no noise disturbance outside the building and beyond the boundaries of the property.

The Acoustic Assessment submitted with the application prepared by Envirotech dated 14 July 2014 indicates that aircraft noise reduction of 27 dBA is required for the main hall. A condition of consent is recommended to design the building to comply with noise standard AS 2021–2000 to ensure that the sound level complies with this requirement. (Special Condition No 2.42).

20. Special Condition No 2.42 was set out in the recommendation at the end of the Council officer's report. The Council officer's report next addressed the Penrith Development Control Plan 2010 (‘DCP 2010’) and said that: "An assessment of the proposed development against the relevant controls of DCP 2010 has been undertaken and attached at Appendix 7." In fact, the appendix was numbered and named "Appendix No 6, Penrith DCP 2010 Development Control Table." Along the row, "C12.3 Aircraft Noise," the report stated:

The building site is considered acceptable for the proposed development based upon AEF zones in accordance with AS.

Indoor design sound levels to be in accordance with AS 2021–2000.

21. In the column "Comment", the report stated:

This is detailed in the report and found to be satisfactory and have recommended imposition of conditions.

22. In the column "Compliance", the report stated, "Yes."

23. Later in the Council officer's report, under the heading of "Noise Impacts," it stated:

The applicant has submitted an 'Acoustic Assessment Report' prepared by Envirotech dated 28 May 2014 followed by an additional Acoustic Report dated 14 July 2014. These assessments have examined potential noise emissions generated by the proposed development including noise emissions from operations of the main hall, other meeting rooms, and carpark areas. The NSW Environment Protection Authority (EPA) Industrial Noise Policy (INP) has been used as a basis for the assessment of operational noise emissions.

Council's Environment Section has assessed the additional information submitted by the applicant and they are satisfied with the proposal subject to the recommendations provided in the acoustic report to be implemented and incorporated into the design and construction of the development. A certificate is to be obtained from a qualified acoustic consultant certifying that the building has been constructed to meet the noise criteria in accordance with the approved acoustic report. The certificate is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate (see Special Condition No 2.8).

24. Special Condition 2.8 was set out in the recommendation at the end of the Council officer's report. The Council officer's report concluded that the proposed development was "worthy of Council's support" and recommended that the development application "be granted consent subject to the following conditions." Amongst the recommended conditions were special conditions 2.3, 2.8, and 2.42, which read as follows:

2.3   The buildings shall be constructed to comply with noise standard AS 2021–2000 to ensure that the sound level internal of building is satisfactory and is not impacted by the aircraft noise.

2.8   Noise levels from the premises shall not exceed the relevant noise criteria detailed in 'Noise Impact Assessment' prepared by Envirotech dated 11 August 2014. The recommendations provided in the above-mentioned acoustic report shall be implemented and incorporated into the design and construction of the development. A certificate is to be obtained from a qualified acoustic consultant certifying that the building has been constructed to meet the noise criteria in accordance with the approved acoustic report. This certificate is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

The provisions of the Protection of the Environment Operations Act 1997 apply to the development, in terms of regulating offensive noise.

2.42   The following recommendations outlined with Acoustic Assessment 81-89 Clifton Avenue, Kemps Creek, NSW–REP–121014–C prepared by Envirotech dated 14 August 2014 shall be followed at all times for the duration of the operation of the development.

• Windows and external doors are to remain closed during all services.

• Management shall monitor the behaviour of the persons outside the meeting hall to prevent loud speech, other loud vocal sounds and unsociable behaviour in the area.

• Management shall ensure that all activities onsite cease by 1.30pm on weekdays and 10pm on Saturdays and Sundays.

• A notice shall be clearly displayed at the front of the premises reminding patrons to arrive and leave in a quiet manner to avoid disturbance to the neighbouring properties.

• The occupants of neighbouring premises shall be informed of all special events that are to be conducted onsite. Information provided to neighbouring occupants is to include proposed start and stop times of the event and a contact name and telephone number of the facility so that noise complaints can be received.

• There is no amplified music or use of the Public Address system external of the main hall or outbuilding.

25. The development application was considered by the Council at its ordinary meeting on 24 November 2014. Two representatives of the Welfare Association and its planning consultant addressed the Council in support of the development. Three citizens spoke in opposition to the development. The Council then debated the development application. Eventually, the motion was put that:

1.   The information contained in the report on Development Application DA13/1271 Proposed Place of Public Worship at Lot 2 DP 812284 (No 81-83) Clifton Avenue, Kemps Creek be received.

2.   Development application DA13/1271 Proposed Place of Public Worship at Lot 2 DP 812284 (No 81-83) Clifton Avenue, Kemps Creek be granted consent subject to the following conditions.

26. The conditions included conditions 2.3, 2.8, and 2.42 in the same terms as had been recommended in the Council officer's report. The motion was put and carried by a majority of councillors. As a result, the Council thereby determined to grant consent to the development application.

27. Some councillors gave notice of their intention to move a notice of motion at an extraordinary meeting of the Council on 8 December 2014 to rescind the resolution of the Council of 24 November 2014 to grant consent to the development application.

28. At the extraordinary meeting on 8 December 2014, three citizens spoke in support of the notice of motion to rescind, and a parish priest, a representative of the Welfare Association and its planning consultant spoke in opposition to the notice of motion to rescind the resolution. The Council debated the notice of motion to rescind the resolution. The motion to rescind the resolution was put but was lost. The resolution to grant consent therefore remained on foot.

29. Notice of determination of the grant of consent was subsequently issued. The conditions of consent were renumbered so that recommended condition 2.3 became consent condition 48, recommended condition 2.8 became consent condition 30, and recommended condition 2.42 became consent condition 17. However, there was no change to the wording or substance of the conditions.

No failure to consider relevant matter established

30. The Action Group's argument that the Council failed to consider and be satisfied about the relevant matter in cl 6.14(3)(c)(i) of PLEP 2010 cannot be sustained on the evidence. The Council had its attention drawn expressly to cl 6.14 and the applicability of that clause to the development. The Council had before it evidence establishing that the development, which was for the purpose of a place of public worship, would meet AS 2021–2000 with respect to interior noise levels. This was to be achieved by designing the building to reduce the noise from aircraft to the indoor sound levels required by AS 2021–2000.

30. Conditions of consent were imposed to ensure that this outcome would be achieved. One condition (condition 30, but formerly the recommended condition 2.8) required that the recommendations in the acoustic assessment submitted to the Council on 11 August 2014 be incorporated into the design and construction of the building. These recommendations included the recommendation to achieve an aircraft noise reduction of 27 dBA for the main hall so as to meet the requirement of AS 2021–2000 of an indoor design sound level from aircraft flyovers of 50 dBA.

31. In case there was any doubt that the recommendations included meeting AS 2021–2000, another condition (condition 48, formerly the recommended condition 2.3) expressly required:

The buildings to be constructed to comply with noise standard AS 2021–2000 to ensure that the sound level internal of building is satisfactory and is not impacted by the aircraft noise.

33. A third condition (condition 17, formerly the recommended condition 2.42) supplemented these two conditions by requiring the development (including the main hall) to be operated in a way that would minimise noise being emitted from the buildings, but would also minimise noise intruding inside of the buildings, including aircraft noise intrusion.

34. In these circumstances, the Action Group has not established that the Council failed to consider or to form the necessary satisfaction under cl 6.14(3)(c) of PLEP 2010. As this was the only ground of challenge to the Council's determination to grant consent, the proceedings should be dismissed.

Costs should follow the event

35. In relation to the costs of the proceedings, as between the Action Group and the Welfare Association, those parties agreed that costs should follow the event. As the event is that the Action Group's challenge fails and that the proceedings should be dismissed, the Action Group should pay the Welfare Association's costs of the proceedings. Earlier in the proceedings, on 29 October 2015, by consent, the Court made an order that the Action Group pay into court, by way of security for costs, the sum of $25,000 in respect of the Welfare Association's costs of the proceedings, and that such sum stand as the maximum costs to be paid to the Welfare Association in the event that the Court ordered that the Action Group pay the Welfare Association's costs of the proceedings. Those parties also agreed at the hearing today that if the Court orders the Action Group to pay the Welfare Association's costs, the moneys paid into court by way of security should be applied to pay the amount of costs as agreed or assessed up to the maximum of $25,000.

36. I consider it is appropriate to make orders that the Action Group pay the Welfare Association's costs of the proceedings as agreed or assessed up to the maximum $25,000 and that the sum paid into court be used to pay this amount.

37. As between the Action Group and the Council, the Action Group submitted that it should not be ordered to pay the Council's costs of the proceedings, while the Council submitted that the Action Group should pay the Council's costs of the proceedings. The basis for the Action Group's submission that it ought not be ordered to pay the Council's costs was that it had been misled by the Council's website as to which local environmental plan was applicable. The statement on the Council's website that PLEP No 201 would still apply in Penrith City Council, notwithstanding the coming into force of PLEP 2010, misled the Action Group into bringing and maintaining the judicial review proceedings, relying on the Council's failure to comply with PLEP No 201.

38. The Council submitted that the Council's website was not misleading. PLEP No 201 did still apply to those lands in Penrith City Council that were identified as a deferred matter on the Land Application Map of PLEP 2010. The Kemps Creek land, however, was not one of those lands identified as a deferred matter. The Council's website never said that it was a deferred matter.

39. Ordinarily in judicial review proceedings costs follow the event. Here the Action Group has been unsuccessful in establishing that the Council's determination to grant consent was invalid. The unsuccessful Action Group should pay the successful Council's costs of the proceedings, unless there is any relevant conduct that would disentitle the Council from an award of costs in its favour.

40. The Council's conduct in stating on its website that, in addition to PLEP 2010, PLEP No 201 applies in Penrith City Council was not incorrect or misleading for the reasons the Council has given. The Council never made a representation to the Action Group that PLEP No 201 applied particularly to the Kemps Creek land. A careful reading of PLEP 2010 and the Land Application Map established that there was no deferred matter on or around the Kemps Creek land that was proposed to be developed by the Welfare Association. Hence, the only applicable local environmental plan for that land, and development on that land, was PLEP 2010.

41. In these circumstances, the usual order for costs should be made as between the Action Group and the Council.

Orders

42. Accordingly, I make the following orders:

1. Dismiss the proceedings.

2. Order the applicant to pay the first respondent's costs of the proceedings, as agreed or assessed.

3. Order the applicant to pay the second respondent's costs of the proceedings, as agreed or assessed, up to a maximum of $25,000.

4. Direct that the money paid into court by the applicant may be paid to the second respondent to satisfy the amount of costs agreed or assessed under Order 3.

**********

Decision last updated: 18 December 2015