Stockland Developments v Wollongong Council - [2004] NSWLEC 470

Land and Environment Court

of New South Wales

CITATION: Stockland Developments v Wollongong Council and others [2004] NSWLEC 470

PARTIES:
APPLICANT
Stockland Developments Pty Limited
FIRST RESPONDENT
Wollongong City Council
SECOND RESPONDENT
Cookson Priblico Pty Limited

FILE NUMBER(S): 10210 of 2004

CORAM: Roseth SC - Brown C

KEY ISSUES: Development Application :- resubdivision of existing six lots
erection of 18 dwellings
subdivision into 19 community title lots
impact of noise from adjoining factory

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Carriage v Stockland (Constructors) [2002] NSWLEC 117

DATES OF HEARING: 11-13/08/04, 18/08/04

DATE OF JUDGMENT: 08/27/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Craig SC
SOLICITORS
Baker & McKenzie
FIRST RESPONDENT
Mr J Ayling SC
SOLICITORS
Phillips Fox
SECOND RESPONDENT
Mr B Preston SC
SOLICITORS
Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Brown C

27 August 2004

10210 of 2004 Stockland Development Pty Ltd (Applicant) v Wollongong City Council (First Respondent) and Cookson Priblico Pty Ltd (Second Respondent)
JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by Wollongong City Council (the council) of Development Application D1485/03 for an integrated housing development containing 18 dwellings on 18 residential lots and one community lot.

2 The site is Stage 5A of a staged subdivision, called The Point residential subdivision, approved by the Court in 2002. To the south it adjoins an existing residential area. To the north it adjoins vacant residential lots, which are Stage 6 of The Point residential subdivision. Further north is vacant land on either side of the Tramway Creek, which itself adjoins on its northern side the Cookson Plibrico industrial plant (the Cookson site). The plant, located at about 100m from the site, is a significant noise source and operates 24 hours, seven days a week.

3 The applicant seeks to amalgamate six allotments of the approved The Point residential subdivision and re-subdivide them into 19 allotments, 18 of which are residential lots in a community title subdivision, while the remaining lot is a community lot containing the accessway. Concurrently with the re-subdivision of the lots, the applicant seeks consent for the erection of dwelling houses on the 18 residential lots. Plans and elevations for each dwelling form part of the application.

4 Both the first and second respondents submitted lengthy Statements of Issues that were similar, though not identical. All issues arise out of the need to mitigate the noise emanating from the activities of the Cookson site. Consultation between the acoustic experts retained by the three parties resulted in a high degree of agreement, thus reducing the scope of the dispute. The issues that remained at the commencement of the hearing were as follows:

Should the industrial noise be mitigated at the source (ie the Cookson site) or at the receptor (ie Stage 5A of The Point residential subdivision)?

Should intrusive noise goals be included within the noise criteria?

If yes, what are the appropriate goals for intrusive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Stockland Developments v Wollongong Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWLEC 470
Decision Date: 08/27/2004

CaseChat Overview and Summary

Stockland Developments Pty Limited appealed the Wollongong City Council's refusal of Development Application D1485/03, which sought to construct 18 dwellings on resubdivided lots in Stage 5A of The Point residential subdivision. The Land and Environment Court of New South Wales considered the proposal's compliance with the objectives of the Low Density Residential Zone, including the mitigation of noise from the nearby Cookson Plibrico industrial plant. The court had to determine whether noise attenuation should occur at the source, the Cookson site, or at the residential site, and to establish appropriate noise criteria and conditions for the development consent.

The court ruled that noise attenuation should be carried out at the source, consistent with planning principles that favour noise treatment at the source when feasible. The court agreed with the acoustic experts' consensus that mitigation at the Cookson site was the best solution, as it would avoid imposing unacceptable noise levels on future residents of the residential development. The court also determined that intrusive noise goals should be included within the noise criteria, setting them at 5dBA above background noise levels, which vary by time of day. The court rejected the proposal to impose the acoustic conditions on the 2002 consent for the entire subdivision, finding it would be an error of law. The court further amended the conditions to exclude noise from the Cookson site in the background noise and to require specific noise attenuation works at the factory.

The court ultimately concluded that the proposed development, subject to the specified acoustic conditions, was consistent with the objectives of the Low Density Residential Zone. The court approved the development application, subject to the acoustic conditions that required noise treatment at the source and established appropriate noise criteria.

The court ordered that the appeal be upheld, the development application be approved subject to the conditions in Annexure A, and the exhibits be returned with exceptions.

Orders