Rockdale Hotel Pty Ltd v Rockdale City Council

[2014] NSWLEC 1111

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Rockdale Hotel Pty Ltd v Rockdale City Council [2014] NSWLEC 1111

Hearing dates:

28 May, 2014

Decision date:

17 June 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Conditions 42, 43, 149 and 150 of Development Consent No. 2013/60/A are amended, as setout in the consolidated conditions of consent in Annexure A.

3. The exhibits, other than exhibits 3, 4 and B, are returned.

Catchwords:

DEVELOPMENT CONSENT: disputed conditions of consent; internal acoustic amenity.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Rockdale Hotel Pty Ltd (Applicant)
Rockdale City Council (Respondent)

Representation:

Mr C McEwen SC with Mr M. Staunton Barrister (Applicant)
Mr J Cole Solicitor (Respondent)
Pikes & Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

10244 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of the Joint Regional Planning Panel (Sydney East Region) (JRPP) to modify four of the conditions of consent imposed on Development Consent No. 2013/60 (the approved development). The site is located at 20 Levey Street and 34-36 March Street Wolli Creek (the site).

1. The approved development is the retention of the existing Mercure Hotel building; the demolition of an existing dwelling house, tennis court and pool of the hotel; and the construction of a mixed use development of 3 buildings with heights of 11, 13, and 16 storeys over 8 stages, comprising ground floor retail and commercial areas, 316 residential units and parking for 484 vehicles (exh B, p 1).

Issues

1. The disputed conditions of consent all relate to the internal acoustic amenity of the approved development. Conditions 42 and 43 seek to specify the standard of construction for walls and floors and conditions 149 and 150 require post construction certification to ensure that the requirements of conditions 42 and 43 have been met. The conditions impose the following requirements on the development consent (exhibit 1, tab 3):

Condition 42

The development shall be insulated to achieve an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC) in accordance with the measures and recommendations identified in the report prepared by Wilkinson Murray, dated August 2012 and received by Council on 23 January 2013.

In addition, the walls of those residential units on the ground an levels 1 to 4 which abut an internal car parking rea shall achieve an Acoustical Star Rating of 5 in order to retain appropriate internal noise and vibration levels within the residential units.

Condition 43

The development shall have an impact isolation between floors which achieves an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Consultants (AAAC) in accordance with the report by Wilkinson Murray, dated August 2012 and received by Council on 23 January 2013.

Condition 149

Testing and evaluation of the wall insulation system is to be carried out at post construction stage by a suitably qualified acoustical engineer to show an Acoustical Star Rating of 5 has been achieved in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC) in accordance with the report submitted to Council on 23 January 2013 with the Development Application. A report is to be submitted to the Principal Certifying authority prior to the issue of the Occupation Certificate for each building stage (stages 4, 5, and 7). The report is to include the walls of the residential units that abut the internal car parking areas on the ground floor and levels 1 to 4 of the development.

Condition 150

Testing and evaluation of the floor system is to be carried out at post construction stage by a suitably qualified acoustical engineer to show that an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC) and in accordance with the report submitted to Council with the Development Application has been achieved. A report is to be submitted to the Principal Certifying authority prior to the issue of the Occupation Certificate for each building stage (stages 4, 5 and 7).

1. The parties agreed that the wording of the conditions is ambiguous.

1. The applicant's contention is that the four conditions of consent would require a level of insulation well above the requirements of Objective 4.5.5 A in Rockdale Development Control Plan 2011 (DCP 2011) which states, 'To site and design buildings to ensure acoustic and visual privacy for occupants and neighbours' (the objective). According to the applicant, this objective is not a superior objective, but is expressed in terms of plain and ordinary standards. The requirement to acoustically insulate walls and floors to achieve an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC), as a superior objective, is inconsistent and unnecessary. According to the applicant, the AAAC does not prescribe insulation standards and does not recommend an Acoustical Star Rating of 5 for insulation to residential apartments. The applicant says that the method of acoustic insulation proposed would achieve an appropriate level of amenity for the occupants of the units, consistent with the objective.

1. The Council says that the contentions raised by the applicant provide insufficient justification for the objection to the conditions to be upheld and the conditions should be redrafted so as to remove any alleged ambiguities and to make it clear that the AAAC Star Rating of 5 star rating is required.

Background

1. Development Consent DA2013/60 was granted on 17 April, 2013 by the JRPP.

1. On 23 October, 2013, the applicant lodged Modification Application No. 2013/60/A to increase the number of units to 328, to increase the height of buildings A and B by 230mm and 400mm respectively, to increase parking spaces to 494 and for associated facade amendments and amendments to the conditions of consent.

1. On 15 April 2014, the JRPP approved Modification Application No. 2013/60/A in part. A notice of determination is yet to be issued in relation to that decision.

1. The appeal is against the refusal of the JRPP to modify the four conditions of consent, 42, 43, 149 and 150, imposed on Development Consent No. 2013/60. The hearing commenced in court as the parties agreed that the hearing of the matter did not necessitate a site inspection.

Planning Framework

1. Section 96(3) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires the consent authority, in determining an application for modification of a consent, to take into consideration the relevant matters to the application, referred to in s 79C(1) of the EPA Act. The relevant matters to this application in s 79C(1) are as follows:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

1. Section 79C(3A) of EPA Act, requires the following in relation to a development control plan,

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

1. The approved development was subject to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65), at cl 4(1)(a).

1. The site is zoned B4 Mixed Use, pursuant to Rockdale Local Environmental Plan 2011 (LEP 2011) and the approved development is an unspecified permissible use. The objectives of the B4 zone are as follows:

To provide a mixture of compatible land uses.

To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

1. The aims of LEP 2011, at cl 1.2, include:

(c) to maintain and improve residential amenity and encourage a diversity of housing to meet the needs of Rockdale residents.

1. Clause 6.3 of LEP 2011, 'Development in areas subject to aircraft noise' includes the following objectives:

(a) to prevent certain noise sensitive developments from being located near the Sydney (Kingsford-Smith) Airport and its flight paths,

(b) to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings,

(c) to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport.

1. Rockdale Development Control Plan 2011 (DCP 2011) is a relevant consideration. Part 4 of DCP 2011 'General principles for development' includes the following introductory statement:

The objectives for each topic describe the outcomes that proposed developments are required to achieve. In order to gain Council approval, developments need to demonstrate that they have fulfilled the relevant objectives for each topic.

The controls specify ways in which a development proposal can meet the objectives for the topic. Development proposals are required to address all relevant controls.

1. Section 4.4.5 'Visual and Acoustic Privacy' includes the following explanation:

Privacy is a major determinant of the ability of occupants and neighbours to enjoy their homes or work premises and refers to both acoustic and visual privacy. Privacy needs should influence all stages of design, from the location of dwellings and the placement of windows and private open space through to the selection of materials and construction techniques.

1. The objective for Section 4.4.5 is as follows:

A. To site and design buildings to ensure acoustic and visual privacy for occupants and neighbours.

1. The relevant controls for acoustic privacy, at Section 4.4.5, are as follows:

5. Bedrooms of one dwelling should not share walls with living rooms or garages of adjacent dwellings. Bedrooms of one dwelling may share walls with living rooms of adjacent dwellings provided appropriate acoustic measures are documented.

7. All residential development except dwelling houses are to be insulated and to have an Impact Isolation between floors to achieve an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC).

An Acoustic Report is to be submitted at Development Application stage & post construction stage to ensure that the above standards have been achieved.

8. In attached dwellings and multi-unit development the internal layout should consider acoustic privacy, by locating circulation spaces and non-habitable rooms adjacent to party walls.

1. The AAAC 'Guideline for Apartment and Townhouse Acoustic Rating' dated September 2010 (exh 1, tab 8) (AAAC Guidelines) relevantly includes the following:

1.0 Introduction

Members of the AAAC have been concerned for some time that there are no building regulations or standards that encompass all aspects of the acoustical qualities of apartments, townhouses and other multi-tenancy dwellings.

The Building Code of Australia (BCA) regulates minimum acceptable construction standards for buildings and sets minimum standards for privacy. Many in the housing industry have interpreted these as absolute requirements, applicable to all types of dwellings. For instance, Part F of the BCA sets minimum requirements for party walls and floors between apartments and for ducts or bulkheads enclosing hydraulic waste pipes, however it does not deal with other acoustical issues such as noise intrusion from outside or noise generated by building services.

The AAAC Acoustical Star Rating provides you with a logical tool to determine an accepted or expected acoustical result related to multi-dwellings.

The Star Rating has been produced by members of the AAAC and fulfils a need identified by the community and is based on the current experience and technical expertise of AAAC members. The ratings are periodically reviewed and updated.

The result has been that owners of luxury apartments built to BCA standards have become dissatisfied with acoustic performances, which in their view are not commensurate with the price they have paid.

2.0 The Star Rating System

The intent of the rating system is to quantify and communicate the opinions of AAAC members on the design of residential buildings. It deals with the major issues, including the intrusion of external noise, noise generated by building services and appliances and noise transfer between apartments.

The rating system will not compete with established statutory or advisory codes such as the BCA, AS/NZS Standards or local authority building ordinances. It is intended to be complementary to all of these.

The rating system considers the following aspects that influence the acoustic environment of an apartment or townhouse.

5.0 Residential Activities

A wide range of different noises is generated by residential activities, again broadly classified into airborne and structure-borne noise.

The star rating system measures the actual installed performance of the wall or floor system. The expression for effective sound insulation between two adjacent spaces is DnT,W. This is the sound level difference, which is adjusted to simulate a typical furnished room. To this value is added a correction factor of Ctr that helps to quantify the low frequency performance of the wall or floor. The Ctr factor is a negative value.

The 5 Star rated wall or floor is close to the maximum achievable in normal building construction.

6.0 Structure Borne Noise

Structure borne noise includes footsteps on hard floors, scraping chairs and dropping objects. For this type of noise, Australia and New Zealand have adopted the measurement called the weighted standardised impact sound press level LnT,w.

8.0 Scoring System

Each acoustical attribute is separately rated (noise intrusion, services noise or sound and impact isolation). The overall rating is determined by the lowest score awarded to each attribute within that classification. The Certificate will show the rating for each attribute within the classification and the overall rating for each classification. An overall rating is assigned that is the average of all the three classifications. This can be used to indicated the overall acoustic performance of the apartment.

1. The following table is taken from the AAAC Guidelines and gives an indication of the sound insulation performance of the various star ratings in respect of controlling typical noise sources within the domestic environment.

Sound Insulation expressed as DnT,w P Ctr
35	40	45	50	55
Type of Noise Source	2 Star	3 Star	4 Star	5 Star	6 Star
Normal Speech	Audible	Just Audible	Not Audible	Not Audible	Not Audible
Raised Speech	Clearly Audible	Audible	Just Audible	Not Audible	Not Audible
Dinner Party/Laughter	Clearly Audible	Audible	Just Audible	Not Audible	Not Audible
Shouting	Clearly Audible	Clearly Audible	Audible	Just Audible	Not Audible
Small TV/entertainment system	Clearly Audible	Clearly Audible	Audible	Just Audible	Not Audible
Large TV/entertainment system	Clearly Audible	Clearly Audible	Clearly Audible	Audible	Just Audible
DVD with surround sound	Clearly Audible	Clearly Audible	Clearly Audible	Audible	Audible
Digital TV with surround sound	Clearly Audible	Clearly Audible	Clearly Audible	Audible	Audible

1. The following inter-tenancy activities table is taken from the AAAC Guidelines:

Inter-tenancy Activities	2 Star	3 Star	4 Star	5 Star	6 Star
(a) Airborne Sound Insulation for Walls and Floors, between separate tenancies DnT,w	35	40	45	50	55
(c) Impact Isolation of Floors between tenancies LnT,w 	65	55	50	45	40

1. The AAAC Guidelines include the following in regard to inter-tenancy activities:

Inter-tenancy activities generate a wide range of different noises, which can be broadly classified into airborne and structure borne noise.

Airborne sound insulation is measured in accordance with Australian Standard AS 2253 and rated in accordance with AS 1276 (ISO 140-4 and ISO 717-1).

The nominated DnT,w + Ctr values are considered as minimums and there is no site tolerance applicable.

Floor impact transmission is measured in accordance with ISO 140-7 and rated in accordance with ISO 717.2

Expert evidence

1. Expert acoustic evidence was provided by Dr Renzo Tonin on behalf of the applicant and by Mr Graham Atkins on behalf of the Council.

1. The acoustic experts agreed on the following:

• the wording of the conditions is ambiguous;
• the AAAC Guidelines do not prescribe insulation standards, but are intended only to rank the acoustical quality of apartments;
• the AAAC Guidelines do not recommend a minimum standard of star rating be achieved for any residential apartment;
• the Wilkinson Murray Report does not refer to the AAAC Guidelines, it is based on compliance with Part F5 of the Building Code of Australia (BCA), so conditions 42, 43 and 150 are in error and should be redrafted;
• the reference in condition 42 to "the development" being insulated to achieve an AAAC Acoustical Star Rating of 5 is in error, as it is an individual apartment which is allocated an AAAC Acoustical Star Rating and not a development;
• the standard of airborne sound insulation for walls in the BCA is L'nT,w + Ctr 45;
• the standard of impact sound insulation of floor in the BCA is L'nT,w + Ctr 62 is equivalent to L'nT,w 63-65 and this is sub-standard;
• in carpeted apartments, with the exception of kitchens, laundries and bathrooms, the carpeted areas would achieve a L'nT,w 30-35.

1. The experts agreed that the following floor/ceiling construction would achieve the following rating for impact isolation of floors (exh 3, table 1 and diagrams exh G):

Room	Construction	L'nT,w
Bathroom/ Laundry	tiles, acoustic underlay, 200mm slab, 13mm plasterboard ceiling, 375mm air gap	48
	tiles, acoustic underlay, 200mm slab, 13mm plasterboard ceiling suspended with resilient hangers, 375mm air gap	45
Kitchen	tiles or timber, acoustic underlay, 200mm slab, 13mm plasterboard ceiling and insulation, 375mm airgap below kitchen; and in living/dining 13mm plasterboard ceiling with 100mm air gap, no insulation	48
	tiles or timber, acoustic underlay, 200mm slab, 13mm plasterboard ceiling suspended with resilient hangers and insulation, 375mm air gap below kitchen; and in living/dining 13mm plasterboard ceiling with 100mm air gap, no insulation	45
	tiles or timber, acoustic underlay, 200mm slab, 13mm plasterboard ceiling suspended with resilient hangers and insulation, 375mm air gap below kitchen; and in living/dining 13mm plasterboard ceiling suspended with resilient hangers with insulation, 100mm air gap	43

1. The acoustic experts disagreed on the required sound insulation for walls to comply with the objective. In Dr Tonin's opinion, the standard of sound insulation of walls afforded by the current BCA complies with the objective. In Mr Atkins opinion, DCP 2011 requires a specific performance for sound insulation, which is the AAAC Acoustical Star Rating of 5.

1. The experts agreed that a single layer of 13mm Fyrchek is predicted to achieve a DnT,w 50. However, Dr Tonin notes that there is no engineering margin of error allowed for with a single layer of 13mm Fyrchek and this carries a risk that the apartment will not achieve the AAAC Acoustical Star Rating of 5.

1. The experts disagreed on the standard of construction appropriate for the floors. In Dr Tonin's opinion, an impact isolation of floors of L'nT,w 48 for kitchens, bathrooms and laundries is reasonable and would comply with the objective. Mr Atkins is of the opinion that L'nT,w 48 in kitchens, bathrooms and laundries will not result in an AAAC Acoustical Star Rating of 5 for each apartment.

Applicant's version of conditions 42 and 43

1. The applicant's version of conditions 42 and 43 are as follows:

42. The inter-tenancy walls between apartments and the walls between apartments and the carpark shall be insulated to achieve a DnT,w + Ctr of not less than 48.

42A. The development shall be carried out in accordance with the noise reduction measures specified in the DA noise assessment report prepared by Wilkinson Murray Pty Limited dated August 2012 Ref:12205 Version C, and in particular the windows in the following rooms in Block C shall be glazed as described:

(a) 6.38mm thick laminated glass to the bedrooms on or near the eastern façade and the living rooms on the southern façade;

(b) 8.38mm thick laminated glass to the living rooms on or near the eastern façade;

(c) 10.38mm thick laminated glass to the bedrooms on the eastern façade;

with all windows to incorporate Q-Lon seals or similar.

42B. A by-law shall be registered and maintained for the life of the development which requires that:

(a) An owner of a lot must ensure that all floor space within the lot complies with condition 43.

(b) Not withstanding subclause (1), in the event that a floor covering in the lot is removed, the newly installed floor covering shall have a weighted standardized impact sound pressure level not greater than L'nT,w 45 measured in accordance with AS ISO 140.7 and AS ISO 717.2. A test report from a qualified acoustic engineer employed by a firm eligible to membership of the Association of Australian Acoustical Consultants shall be submitted to the Owners Corporation within 14 days of the installation of the new floor covering demonstrating compliance with that standard. In the event that the standard is not complied with, the floor covering shall be removed and replaced with a floor covering that conforms to that standard in accordance with any directions given by the Owners Corporation.

43. The impact sound insulation of floors between apartments shall not exceed an L'nT,w 48 for a kitchen, laundry and bathroom provided that the remainder of the floor is carpeted. Where the remainder of the floor is not carpeted then impact sound insulation of that floor shall not exceed L'nT,w 45.

1. Both the applicant's version and the Council's version of conditions 149 and 150 require field testing post construction of the wall and floor acoustic insulation systems. The Council's version requires, in addition, certification that the walls and floors have been constructed in accordance with the details submitted with the Construction Certificate/s (CC) and any variation to CC approved documentation is to be approved by the Principal Certifying Authority.

Findings

1. The parties agreed that the aim of the design of acoustic insulation of the approved development is to achieve the objective, ' To site and design buildings to ensure acoustic and visual privacy for occupants and neighbours'. The acoustic privacy controls of DCP 2011, Section 4.4.5, relevantly include the following:

5. Bedrooms of one dwelling should not share walls with living rooms or garages of adjacent dwellings. Bedrooms of one dwelling may share walls with living rooms of adjacent dwellings provided appropriate acoustic measures are documented.

7. All residential development except dwelling houses are to be insulated and to have an Impact Isolation between floors to achieve an Acoustical Star Rating of 5 in accordance with the standards prescribed by the Association of Australian Acoustical Consultants (AAAC).

An Acoustic Report is to be submitted at Development Application stage & post construction stage to ensure that the above standards have been achieved.

8. In attached dwellings and multi-unit development the internal layout should consider acoustic privacy, by locating circulation spaces and non-habitable rooms adjacent to party walls.

1. The controls do not require each apartment to achieve a AAAC Acoustical Star Rating of 5. Control 7 requires that residential development is to be insulated and is to achieve 'an impact isolation between floors of an Acoustical Star Rating of 5'. This is equivalent to an impact isolation of floors of L'nT,w 45. While I accept the agreed evidence of the acoustic experts to be that only an individual apartment can be given a star rating, in accordance with the AAAC Guidelines 'Inter-tenancy Activities' table (exh1, tab 8, p 9), the wording of control 7 does not reflect that understanding and it is certainly not clear from the 'Inter-tenancy Activities' table. Control 7 specifically refers to the impact isolation between floors and does not refer to either the overall star rating of an apartment or the airborne sound insulation for walls and floors. On that basis, I do not accept the Council's position that an overall AAAC Acoustical Star Rating of 5 is required for each apartment by either the objective or the relevant controls for acoustic privacy of DCP 2011.

1. The acoustic privacy controls of DCP 2011, relevant to the matter before the Court, require the following:

• where bedrooms of one dwelling share a wall with living rooms or garages of adjacent dwellings, appropriate acoustic measures are to be documented (control 5);
• all residential development is to be insulated (control 7);
• an impact isolation of floors of L'nT,w 45 (control 7); and
• an acoustic report to be submitted post construction to ensure that standards are met (control 7).

1. I accept Dr Tonin's evidence that the standard of sound insulation of walls afforded by the current BCA complies with the objective. The applicant's version of condition 42 requires the inter-tenancy walls between apartments and the walls between apartments and the carpark to be insulated to achieve a DnT,w + Ctr of not less than 48. This is in excess of the BCA requirement of DnT,w + Ctr 45. I am satisfied that the applicant's version of condition 42 will meet the requirements of control 5, to provide 'appropriate acoustic measures' and control 7, to (acoustically) 'insulate all residential development'.

1. In order to comply with the requirements of control 7, the impact isolation of floors is to achieve L'nT,w 45 or less (less being a higher standard). The acoustic experts agreed that the carpeted apartments will significantly exceed this, by providing an impact isolation of L'nT,w 35 for the carpeted areas. The applicant's version of condition 43 (coupled with the by-law described in condition 42B) will ensure that apartments not carpeted will achieve an impact sound insulation of L'nT,w 45 or a higher standard.

1. Therefore, the only contention between the parties, in regard to the impact isolation of floors, is in relation to impact noise generated in kitchens, bathrooms and laundries of the carpeted apartments. According to Dr Tonin, L'nT,w 48 is acceptable as it will achieve the objective and Mr Atkins disagreed, as it would not achieve the AAAC Acoustical Star Rating of 5 for each apartment.

1. As stated above in par 34, the relevant acoustic privacy controls in DCP 2011 do not specifically require each apartment to achieve a AAAC Acoustical Star Rating of 5. However, they do require an impact isolation of floors of L'nT,w 45, shown in the AAAC Guidelines 'Inter-tenancy Activities' table as 5 star (exh1, tab 8, p 9). The majority of areas within the residential apartments, being the carpeted areas of apartments and all the areas of apartments with timber floors in living areas, will achieve either the required impact isolation or a higher standard. It is only the kitchens, bathrooms and laundries that will be between what is described as 4 star and 5 star rating in the AAAC Guidelines 'Inter-tenancy Activities' table.

1. I am satisfied that overall, weighing up the high performance of the majority of areas with the slightly lower performance of service areas, that the applicant's version of condition 43 will result in an acceptable level of impact isolation between floors, that is well in excess of the BCA requirement and meets the objective.

1. The applicant's version of conditions 149 and 150, requiring testing and evaluation of the wall and floor acoustic insulation system to be carried out at post construction stage by a suitably qualified acoustical engineer to confirm compliance with conditions 42 and 43 and a report to be submitted to the Principal Certifying Authority prior to the issue of an occupation certificate for each building stage, is acceptable. The Council's version requiring, in addition, certification that the walls and floors are constructed in accordance with the details submitted is redundant if the testing and evaluation shows that the levels of isolation required by conditions 42 and 43 are achieved. It is not the method of construction that is critical, it is fundamentally the achievement of the required levels for airborne sound insulation for walls and the impact isolation for floors that is important.

Conclusion

1. Having regard to the relevant planning objective and controls for acoustic privacy in Section 4.4.5 of DCP 2011 and the evidence provided, I find that the applicant's version of conditions 42, 43, 149 and 150 are acceptable and achieve the objective of ensuring acoustic privacy for occupants and neighbours.

Orders

1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Conditions 42, 43, 149 and 150 of Development Consent No. 2013/60/A are amended, as setout in the consolidated conditions of consent at Annexure A.

(3)   The exhibits, other than exhibits 3, 4 and B, are returned.

Susan O'Neill

Commissioner of the Court

Annexure A

Amendments

19 June 2014 - Annexure A amended

Amended paragraphs: Annexure A

Decision last updated: 19 June 2014