RES Southern Cross Pty Ltd v Minister for Planning and Anor

[2008] NSWLEC 332

Reported Decision: 166 LGERA 116

Land and Environment Court

of New South Wales

CITATION:

RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332

PARTIES:

APPLICANT:
RES Southern Cross Pty Ltd

FIRST RESPONDENT:
Minister for Planning

SECOND RESPONDENT:
Taralga Landscape Guardians Incorporated

FILE NUMBER(S):

11216 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Appeal :- what is a "decision" within the meaning of s 56A Land and Environment Court Act 1979?

LEGISLATION CITED:

Administrative Decision (Judicial Review) Act 1977 (Cth), s 5
Environmental Planning and Assessment Act 1979, ss 80, 96, 98(1)
Land and Environment Court Act 1979, ss 17(d), 56A

CASES CITED:

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321
Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173
RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc [2008] NSWLEC 1333
Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200, (2004) 60 NSWLR 585
Taralga Landscape Guardians Inc v Minister for Planning and Another [2007] NSWLEC 59, (2007) 161 LGERA 1

DATES OF HEARING:

26 November 2008

 
DATE OF JUDGMENT: 

24 December 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Robson SC and Mr A Pickles
SOLICITORS
Middletons

FIRST RESPONDENT:
Submitting appearance
SOLICITORS
Department of Planning

SECOND RESPONDENT:
Ms M Grahame, in person
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 December 2008

11216 of 2007

RES SOUTHERN CROSS PTY LTD v MINISTER FOR PLANNING AND ANOR

JUDGMENT

1 HIS HONOUR: This is a part heard appeal under s 56A of the Land and Environment Court Act 1979 against two conditions of a modified development consent for a wind farm proposed by two Commissioners of the Court in RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc [2008] NSWLEC 1333. Under s 56A, an appeal is against an “order or a decision” and is limited to a question of law. No orders have yet been made by the Commissioners. There is a preliminary question whether they have relevantly made a “decision” within the meaning of s 56A. Submissions have closed in relation to the preliminary question. In this judgment I rule on the preliminary question.

The development consent

2 The appellant, RES Southern Cross Pty Ltd (RES), made a development application for the construction and operation of a wind farm on land at Taralga. The Minister for Planning, the first respondent, granted development consent. There was an appeal to this Court by an objector, Taralga Landscape Guardians Inc (the Guardians), the second respondent. The Guardians are an incorporated community association, whose members reside in or around Taralga or who have landholdings in the village or in the immediate district. The Guardians’ right of appeal arose pursuant to s 98(1) of the Environmental Planning and Assessment Act 1979 as the proposal was for designated development and the Guardians were an objector. The Court allowed the appeal and granted conditional development consent for the construction and operation of 62 wind turbines and associated infrastructure: Taralga Landscape Guardians Inc v Minister for Planning and Another [2007] NSWLEC 59, (2007) 161 LGERA 1 (Preston J).

3 In 2007, RES applied to the Court for modification of the development consent pursuant to s 96(8) of the Environmental Planning and Assessment Act, in three respects:

(a) an increase in the height of the tip of the rotors from 110 metres above ground level to 131.5 metres;
(b) consequently, incorporation of aviation safety lighting on some of the turbines; and
(c) deletion of one of the originally approved turbines.

4 The modification application was heard by two Commissioners of the Court. In their judgment (referred to at [1] above), they expressed their conclusions as follows, at [226]:

“ · The modification application, when approved, will result in a development which is substantially the same as that for which the original approval was given;
· Although there are a number of adverse impacts arising from the modifications proposed, they are not sufficient to warrant refusal of the modification application; and
· A variety of alterations to the conditions of consent, including the addition of two properties in the schedule of acquisition properties, is warranted.”

5 This appeal under s 56A relates to two matters, which RES submits were “decisions”, in the Commissioner’s judgment:

(a) the proposed imposition of revised conditions of consent relating to noise monitoring (judgment at [93]);
(b) the proposed imposition of an additional condition of consent requiring the acquisition of the Cushendall Vineyard (judgment at [225]).

6 In relation to their proposed noise monitoring condition, the Commissioners said that they proposed to provide the parties with the opportunity to consider that issue and to settle on an appropriate monitoring regime in the altered conditions of consent: at [94]. This has not yet been done. They also said that: “Although the orders of the Court will be that the modification application is approved, before the orders can be made, the parties need to settle the terms of the revised conditions of consent to give effect to this decision”: at [227].

7 Three grounds of appeal are pressed, as follows:

(1) Absence of power: the Commissioners erred in law in concluding that they had power to re-consider the impact of noise in the modification application (judgment at [87]) and that they had power to impose additional conditions requiring additional noise monitoring (judgment at [93]) and the acquisition of the Cushendall Vineyard (judgment at [198] and [225]);

(2) No evidence: the Commissioners erred in law in concluding, without evidence:
(a) that there would be some change in noise levels (judgment at [87]);
(b) that the subject matter of the application for modification of the turbines warranted a different monitoring regime to that approved by Preston J (judgment at [89]);
(c) that a testing regime of random testing six times per annum should be imposed (judgment at [93]);
(d) that there will be some unquantified increase in noise experienced at the Cushendall Vineyard (judgment at [212]); and
(e) that there will be an increase in qualitative terms in shadow flicker at the Cushendall Vineyard (judgment at [206]).

(3) Procedural fairness: the Commissioners erred in law by denying procedural fairness to RES by concluding that a condition should be imposed requiring random noise monitoring (judgment at [93]), without first affording an opportunity to RES to bring evidence concerning the imposition of such condition.

8 Conditions of the development consent relating to noise standards included the following:

“ Operation Noise and Vibration Management Sub Plan
39 As part of the OEMP [Operational Environmental Management Plan] for the development, the Applicant must prepare and implement an Operation Noise and Vibration Management Sub Plan to outline measures to minimise noise emissions associated with the operation of the development. The Plan must address the requirements of the EPA, should there be any and must include, but not be limited to:
(a) identification of all major sources of noise that may be emitted as a result of the operation of the development;
(b) specification of the noise criteria as it applies to each of the relevant receiver locations specified in condition 42 having regard to the results of the monitoring program required under condition 41 and any revised noise prediction modelling;
(c) identification and implementation of best practice management techniques for minimisation of noise emissions from the development;
(d) procedures for the monitoring of noise emissions in accordance with the conditions of this consent; and
(e) a description of the procedures to be undertaken if any non-compliance is detected.
…


Operation
…

42 The Applicant must design, operate and maintain the development to ensure that for the relevant receiver locations of H1, H5, H7, H12 and ‘The Farm’, while they continue to be not associated with the development the equivalent noise level (LAeq, (10 minute)) from the development at each of these receiver locations does not exceed:

a) 35 dB(A); or
b) the pre-existing background noise level (LA90, (10 minute)) at each receiver location (as determined under condition 41), respectively, by more than 5 dB(A),
whichever is the greater, for each integer wind speed (measured at 10m height) during operation of the development, measured in accordance with the SA Guidelines.”

(emphasis added)

9 The obligation of RES to undertake noise compliance monitoring within six months of commissioning and to submit a noise compliance assessment plan were required by the following conditions of the development consent:

“ Noise Compliance

Noise Compliance Assessment Plan

51 The Applicant must prepare a Noise Compliance Assessment Plan which must be submitted to, and approved by the Director-General, in consultation with the EPA, prior to Commissioning. The Noise Compliance Assessment Plan must outline how the noise compliance assessment will be achieved and be consistent, to the extent applicable, with the data acquisition methods outlined in the SA Guidelines.

Compliance with Noise Limits during Operation

52 Within six months of Commissioning, compliance monitoring of noise during operation of the development is to be undertaken at the locations identified in condition 42. If prevailing meteorological conditions do not allow the required monitoring to be undertaken in this period, the Director-General must be notified and an extension of time may be sought.

53 A Noise Compliance Assessment Report, must be submitted to the Director-General and the EPA within one month of completing the compliance monitoring outlined in condition 52. The Noise Report must include, but not be limited to:
(a) an assessment of the performance of the development against the noise limits contained in condition 42 and where relevant, condition 43; and
(b) in the event that the assessment indicates that noise from the wind turbines exceeds the noise limits set under this consent, details of proposed mitigation and management measures that are available to achieve compliance, including a timetable for implementation.

Following approval by the Director-General, in consultation with the EPA, the Applicant must implement the mitigation and management measures outlined in the Noise Compliance Assessment Report with such amendments as required by the Director-General in order to achieve compliance with the conditions of this consent, within such period as may be directed. The Noise Compliance Assessment Report must be made publicly available.”

10 Conditions 16 and 17 of the development consent provided that the Director-General may require update reports on compliance with all or any part of the conditions of consent and that RES must meet the request of the Director-General in respect of any measure necessary to ensure compliance with the conditions of consent.

11 The “SA Guidelines” referred to condition 51 of the development consent are the South Australian Environmental Noise Guidelines: Wind Farms (2003). The judgment of Preston J recorded the Guardians’ submission that RES cannot meet, at a number of relevant receivers, the 35 dB(A) noise standard required by those guidelines: at [103], [218]. Preston J did not accept the submission and emphasised why he proposed to use the SA Guidelines:

“219 However, RES Southern Cross accepts that it should be required to meet the 35 dB(A) standard at existing non-associated dwellings. Mr Liebmann gave evidence on behalf of RES Southern Cross that it could and would meet the 35 dB(A) standard. I accept that it is feasible for the windfarm to meet the standard.

220 It is long settled in this Court that there is a presumption that those who are given development consent subject to conditions will satisfy those conditions. There is no other basis upon which I can proceed.
…
228 The SA guidelines should be used for the purposes of noise assessment of this proposal, both because they are sound and to ensure a consistent policy approach. Reaching that conclusion also deals with one issue of difference between the parties as to conditions of consent where the Guardians had proposed a shift from the SA guidelines.”

12 Sections 3.1 and 4.1 of the SA Guidelines provide in relation to compliance checking:

3.1 Background noise

…

Compliance checking will require the background noise level data collection process to be repeated when the wind farm is operational (see Section 4).
Background noise varies naturally throughout the year, with different prevailing wind directions, foliage on trees, atmospheric conditions and the like.
A community concern is that the developer may measure during a limited (minimum 2 week) period that is not representative of the rest of the year.
This guideline recommends that compliance checking be repeated at different periods of the year where valid concerns exist.
The developer must collect representative background noise data. Non-compliance may result in one or a number of WTGs [wind turbine generators] being stopped under certain conditions.

4.1 Procedure

Compliance checking follows a similar procedure to compliance prediction (Section 3).

Ambient noise levels with the wind farm operating are measured at relevant receiver locations, over continuous 10-minute intervals and over at least the range of wind speeds at which the WTGs operate. The data must cover approximately 2000 intervals.

Wind speed is measured at 10 m above the ground and in intervals that correlate with the ambient noise measurements.

Compliance checking should collect data associated with the worst case wind direction from the wind farm to the relevant receiver. A wind direction spread of 45 degrees either side of the direct line between the nearest WTG and the relevant receiver is considered acceptable (International Electrotechnical Commission 1998, 1(j) p9). This will not always be practical, given prevailing wind conditions.

Cases in which it appears to be impractical to collect 2000 data points under worst case wind direction conditions or in which all WTGs are not operating, should be discussed with the EPA.”

13 In the Commissioners’ judgment on the modification application, they addressed the noise issue as follows:

“80 Here, we deal with the broader question of whether there is adequate data to consider the noise implications of the modification proposal and, indeed, whether it is necessary for us to do so.

81 The conditions of the current approval place limits on noise levels at various receptor locations. Those noise levels are capable of accurate determination.

82 The position which RES Southern Cross takes in these proceedings is that it remains bound by those conditions; it proposes to manage the wind farm in a fashion to comply with those conditions; and, as a consequence, there is no need to (nor any power to) re-visit the conditions of consent relating to noise.

83 In the alternative, RES Southern Cross says that any variation to the conditions of consent dealing with noise should be limited to the adoption of the draft Operational Noise Management Plan, a document required to be prepared by condition 39(d) of the original consent and presented to us.

84 The Guardians, on the other hand, submit that there is inadequate information about the effect of the modification on noise. RES Southern Cross concedes that there will be some increase. The uncertainty should lead us to re-visit the question of monitoring to ensure that RES Southern Cross meets the performance standard for the various locations established by the existing conditions of consent (particularly those sensitive receivers listed in Condition 42).

…

87 We are satisfied that the fact that there will be some change in the noise levels and that we do not have precise information (such as an updated version of the noise contour map in the Environmental Impact Statement reflecting the change in noise levels by the modification proposed) provides the basis for us to reconsider this issue.

…

89 …we believe that there is sufficient uncertainty to require a regime of random compliance testing to be undertaken in a fashion similar to that used for licensed premises.

90 This would permit random testing (using equipment which complies with condition 48 within the present conditions of consent to avoid wind noise on the testing equipment) to be undertaken without notice to Southern Cross on a limited number of occasions in any 12 month period. Noise testing undertaken on this basis should be paid for by RES Southern Cross but should be organised by an independent body.

…

93 We propose that a testing regime should be undertaken; paid for by the applicant; and independently organised, on six occasions during each year at the locations identified in condition 42 (provided their owners give consent to such testing occurring and the properties do not become associated with the development). The results of such tests should be made available to the company, the Guardians, and each property owner whose property was tested within 28 days of the tests being conducted.

94 …we propose to provide the parties with the opportunity to consider this issue and settle an appropriate monitoring regime in the altered conditions of consent.

95 …We consider that the independent monitoring proposed is appropriate for two reasons. First, monitoring independent of an operator is a commonly accepted practice for assessing compliance with conditions of consent. Second, it is desirable the local community have a degree of comfort that noise compliance is being monitored at arm's length from the company. The limited monitoring we propose will ensure that both these objectives are satisfied.”

14 It can be seen from [93] of the Commissioners’ judgment that the proposed revised noise monitoring condition is prescriptive and goes beyond the original development consent noise conditions and the SA Guidelines in requiring independent testing six times per year.

15 The threshold question is whether each of the Commissioners’ statements concerning each of the proposed conditions to which this appeal relates is a “decision” within the meaning of s 56A of the Land and Environment Court Act. That section relevantly provides as follows:

“(1) A party to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.
(2) On the hearing of an appeal under subsection (1), the Court shall:
(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or
(b) make such other order in relation to the appeal as seems fit…”

16 The meaning of “decision” in s 56A must be determined by reference to that section’s text, scope and purpose. Clearly, in s 56A a “decision” means something other than an order, for an appeal lies both from an order and a decision. A “decision” in subsection (1) may be contrasted with “determination” of “the matter” in subsection (2), which suggests that a decision may relate to a specific aspect of the whole matter. A decision, in my view, may be found in a judgment prior to an order being made. A s 56A “decision”, in my opinion, includes a decision for which provision is made under a statute which brings proceedings within Class 1, 2 or 3 of the Court’s jurisdiction. The Land and Environment Court Act gives Class 1 jurisdiction to the Court in respect of, among other things, appeals against refusals to grant development consent and applications to modify a development consent granted by the Court: s 17(d). On such an application to modify a development consent granted by the Court, just as on an appeal against refusal to grant development consent, the Court is empowered to grant approval unconditionally or conditionally, or to refuse the application: Environmental Planning and Assessment Act, ss 80, 96; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [41], [52], per McClellan J. The imposition of a specific condition, as well as a refusal to impose a specific condition, is readily characterised as a decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 390 per Toohey and Gaudron JJ.

17 What are the characteristics of a “decision” within the meaning of s 56A? In Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200, (2004) 60 NSWLR 585 at [109] – [113] Spigelman CJ held (Mason P and Handley JA agreeing at 597):

“The word ‘decision’ is of a protean character and takes its colour from its context. Cases interpreting the word in other statutory contexts must be treated with care. Nevertheless they do provide some guidance.

As Deane J said in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100:
‘In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word ‘decision’ has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, for example, Registrar of Workers' Compensation Commission (NSW) v FAI Insurances Ltd [[1977] 1 NSWLR 422] or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v Winter [[1933] NZLR 289 at 295] and Penniel v Driffill [[1980] WAR 30 at 32]).’

This passage was referred to with approval in Australian BroadcastingTribunal v Bond (1990) 170 CLR 321 at 335, per Mason CJ, with whom Brennan J and Deane J relevantly agreed. Mason CJ went on (at 335):
‘In the context of judicial proceedings, the Privy Council has accepted that 'the natural, obvious and prima-facie meaning of the word ‘decision’ is decision of the suit by the Court': see Rajah Tasadduq Rasul Khan v Manik Chand [(1902) LR 30 Ind App 35 at 39]; The Commonwealth v Bank of NSW [(1949) 79 CLR 497 at 625]. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself.’


Australian Broadcasting Tribunal v Bond was concerned with the construction of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The holding in that case was that the word ‘decision’ meant ‘an ultimate or operative determination’ (at 338; see also at 375–376, per Toohey J and Gaudron J). In other contexts also the word has been confined to a final order or determination. (See, for example, Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720; Bromley v Housing Commission of NSW (1985) 3 NSWLR 407.) Sometimes the word has been found to extend to interlocutory decisions which effectively resolve a substantive issue, even if not finally dispositive of the proceedings. (See, for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501.)

In the present case no interlocutory or other decision has been made. There has been no operative step in the proceedings and no order. I am unaware of any judgment in which the word ‘decision’ has been found to apply in the absence of something in the nature of an operative step or order.”

18 Section 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) authorises the judicial review of a “decision” to which the Act applies. That “will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 337 per Mason CJ (Brennan and Deane JJ agreeing at 365 and 369 respectively).

19 In my opinion, under s 56A a decision must be final or operative and determinative in a practical sense of an issue falling for consideration, and in terms that leave no doubt as to the effect of the order that should be made to give effect to the decision, even if the precise terms of the order may be a matter of drafting preference. If that were not so, there could be an appeal from a “decision” followed by an appeal from a later subsuming order which differs substantively. The preferable course, which avoids this whole question, is for orders to be made, where practicable, before a s 56A appeal is instituted.

20 In my opinion, the Commissioners’ proposed noise monitoring condition is neither final nor operative and determinative, and its terms have yet to be settled. Appropriately worded conditions are fundamental to approval of the modification application. There is a single conditional approval, not multiple decisions involving, first, approval and, secondly, conditions: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [59] per McClellan J. The noise monitoring condition has been expressed as a proposal and is in general terms: at [93]. The Commissioners said they proposed to provide the parties with the opportunity to consider the issue and settle an appropriate monitoring regime: at [94]. The Commissioners’ judgment leaves open the possibility of a further hearing on the content of the appropriate monitoring regime if the parties are unable to agree. The course of providing for a further hearing to determine the terms of a proposed condition, in the absence of agreement, is sometimes appropriate. For example, that course was taken by Preston J in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. The full import of the Commissioners’ view that there should be a “regime of random compliance testing to be undertaken in a fashion similar to that used for licensed premises” (at [89]) may be open to debate and, perhaps, evidence as to what that entails, for there was no such evidence before the Commissioners. Finalisation of the terms of the noise monitoring condition will crystallise the extent of the burden on RES and any question of validity of the condition.

21 For these reasons, in my opinion the proposed revised noise monitoring condition referred to in [93] of the Commissioners’ judgment is not a “decision” within the meaning of s 56A. Consequently, the appeal against the proposed noise monitoring condition is premature.

Cushendall Vineyard

22 The next question is whether the Commissioners made a “decision” in relation to Cushendall Vineyard within the meaning of s 56A.

23 Conditions 4 and 5 of the development consent granted by Preston J obliged RES to acquire, with compensation, any land listed in Schedule 2 if required to do so by the owner. On the subsequent modification application, the Commissioners held that a nearby property, Cushendall Vineyard, should be added to Schedule 2, thus imposing on RES the obligation to acquire it with compensation if required to do so by the owner. RES now appeals against that “decision”. The Commissioners’ judgment included the following:

“198 The impacts on Cushendall Vineyard are difficult to assess as some of them are unquantified and all need to be considered cumulatively given that no single one of those impacts, in our view, could warrant refusal of the application.
…

203 Further, the evidence provided by Dr Slack concerning shadow flicker shows that the shadow flicker for Cushendall Vineyard would increase from 15.3 to 24.2 hrs per annum at the preferable house location.
…

211 We also do not have any evidence about the increase in noise which might be occasioned to Cushendall Vineyard as a consequence of the amended application.

212 However, RES Southern Cross concedes by that there will be some unquantified increase in noise.
…

219 The conclusion reached by Preston CJ was that there was insufficient impact on Cushendall Vineyard to warrant its inclusion in Schedule 2 of the conditions of consent and thus giving it the benefit of the voluntary acquisition regime provided for in the conditions of consent.

220 We are, therefore, left to consider whether the increase impact on Cushendall Vineyard by the modified proposal would now justify this property to be put on Schedule 2 and thus within the voluntary acquisition regime.

221 Given that we have concluded that there are insufficient adverse impacts to warrant refusal overall, the choice which faces us with respect to this property is the same as that with respect to Mr Sassine’s property.

222 This decision is, perhaps, the most finely balanced of the ones we need to reach in these proceedings.

223 We should make it clear that the impacts on Cushendall Vineyard which give rise to a sufficient level of unacceptability as a consequence of the modification application arise from the impacts of the modification to the turbines of Row 10 and we consider that the additional impacts from the turbines of Row 11 and the turbines to the south and south-east do not make an unacceptable impact on this property.

224 We are therefore left to consider the question of whether Cushendall Vineyard remains in the position it had in Preston CJ’s decision by us refusing the modification application for Row 10 or whether we should permit the modification application for Row 10 and include Cushendall Vineyard in Schedule 2 to the conditions of consent.

225 As with Mr Sassine’s property, we have concluded that the appropriate balance of public benefit and amelioration of private adverse impact is to permit the modification of Row 10 and to add Cushendall Vineyard to Schedule 2.”

24 In my opinion, the Commissioners made a “decision”, within the meaning of s 56A, to add Cushendall Vineyard to Schedule 2. In contrast to the proposed noise monitoring condition, the Commissioners’ proposed condition concerning Cushendall Vineyard was, in terms, final and unequivocal and not hedged about with any doubt as to its terms. Accordingly, this appeal is competent insofar as it relates to the Cushendall Vineyard decision.

25 In summary, in my opinion, the Commissioners have not made a decision within the meaning of s 56A in relation to their proposed noise monitoring condition, but have made a decision within the meaning of s 56A to add Cushendall Vineyard to Schedule 2. Accordingly, the appeal is incompetent in relation to the former but is competent in relation to the latter. As one of the Commissioners is soon to retire, the parties are directed to approach the Registrar today to obtain a date for this matter to be listed before the Commissioners for the purpose of making final orders.