Treetop Adventure Park the Hills Pty Ltd v The Hills Shire Council

[2021] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation:

Treetop Adventure Park The Hills Pty Ltd v The Hills Shire Council [2021] NSWLEC 1157

Hearing dates:

17-18 December 2020, written submissions on 20 January 2021 and 9, 15, 19 February 2021

Date of orders:

30 March 2021

Decision date:

30 March 2021

Jurisdiction:

Class 1

Before:

Gray C and Shiels AC

Decision:

Proceedings 2020/205869

The Court orders that:

(1)   The appeal is upheld.

(2) The s 4.55(1A) application 1402/2013/HC/A to modify development consent 1402/2013/HC is approved subject to the conditions in Annexure A.

(3)   As a consequence of order (2) above, the development consent 1402/2013/HC is subject to the consolidated, modified conditions of consent at Annexure B.

(4)   The exhibits are returned, except for Exhibits A, B and J.

Proceedings 2019/302392

The Court orders that:

(1)   The appeal is upheld.

(2)   The Noise Control Notice issued by The Hills Shire Council on 23 September 2019 is revoked.

Catchwords:

APPEAL – modification application concerning acoustic condition – noise control notice – agreement reached on modification application – whether noise control notice should be modified or revoked

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979 s 39

Protection of the Environment Operations Act 1997 ss 264, 265, 267A, 267B, 290

The Hills Local Environmental Plan 2019

Cases Cited:

Martin v Campbelltown City Council [2000] NSWLEC 228

Sumar Produce Pty Limited v Griffith City Council [2000] NSWLEC 27

Sumar Produce Pty Limited v Griffith City Council [2000] NSWLEC 72

Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 104

Texts Cited:

Noise Policy for Industry

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Treetop Adventure Park The Hills Pty Ltd (Applicant)
The Hills Shire Council (Respondent)
Peter Edwards (First Intervenor)
Anne Edwards (Second Intervenor)

Representation:

Counsel:
A Pickles (Applicant)
J Smith (Respondent)
N Eastman (Intervenors)

Solicitors:
Tonkin Drysdale (Applicant)
Matthews Folbigg Pty Ltd (Respondent)
Mills Oakley (Intervenors)

File Number(s):

2019/302392; 2020/205869

Publication restriction:

No

Judgment

1. COMMISSIONERS: Treetop Adventure Park The Hills Pty Ltd (“Treetop”) operates high ropes courses for children and adults within an area of the Cumberland State Forest in West Pennant Hills (“the adventure park”). Since the adventure park commenced operating in December 2016, there have been a series of complaints from neighbouring residents concerning the noise from the operation of the courses and associated activities. There are two appeals before the Court concerning the adventure park and the noise associated with its activities. Proceedings 2020/205869 is an appeal against the refusal of a modification application that seeks to modify a condition of the development consent for the adventure park, which concerns the numerical limit for noise emitted from the adventure park (“modification appeal”). Proceedings 2019/302392 is an appeal against a Noise Control Notice issued by the Hills Shire Council (“the Council”) on 23 September 2019 (“notice appeal”), which predates the lodgement of the modification application the subject of the modification appeal.

2. The Council now agrees to the grant of the modification application such that the conditions of the development consent will be modified as agreed. The agreed conditions clearly set out the acoustic requirements for the noise level emitted from the development (as a contribution), and specify the hours of operation. The agreed conditions also require a validation report to be procured to ensure acoustic compliance, with control measures to be included in the report if there is non-compliance. If control measures are required by the initial report, the agreed conditions also require a subsequent validation report following implementation of those measures, with the process to be repeated until there is compliance with the specified noise levels.

3. The Council seeks that the Noise Control Notice be varied to reflect the agreed conditions. This is opposed by Treetop, which seeks to have the Noise Control Notice revoked.

The modification appeal

4. On 10 June 2014, the Council granted the development consent (DC 1402/2013/HC) to operate the adventure park. The original development application, which resulted in the consent, was accompanied by a report prepared by Acoustic Directions Pty Ltd dated June 2013 (“the 2013 report”). The 2013 report established the background level to be 38.5dB and therefore the noise criteria for the assessment of the development was the background level plus 5dB, being 43.5dB. Condition 6 of the development consent requires compliance with the project specific noise levels outlined in the report. It is worded as follows:

“Condition 6 - Acoustic Requirements

The recommendations of the Acoustic Assessment and Report prepared by Acoustic Directions Pty Ltd, referenced as Report Number R130619 – V1.0, dated June 2013 and submitted as part of the Development Application are to be implemented as part of this approval. In particular, the project specific noise levels as outlined in the report are to be complied with.”

5. Condition 38 required the proposed use of the premises and/or machinery equipment installed must not create offensive noise so as to interfere with the amenity of the neighbouring properties. It is worded as follows:

“Condition 38 - Offensive Noise – Acoustic Report

The proposed use of the premises and/or machinery equipment installed must not create offensive noise so as to interfere with the amenity of the neighbouring properties.

Should an offensive noise complaint be received and verified by Council an acoustic assessment is to be undertaken (by an appropriately qualified consultant), and an acoustic report is to be submitted to Council for review. Any noise attenuation recommendations recommended and approved by Council must be implemented.”

6. Treetop lodged the modification application on 14 April 2020. The modification application was made pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), and sought to change the acoustic criterion to impose a numerical limit of background plus 10dB. Following the expiry of the period after which a modification application is deemed to be refused, Treetop lodged the modification appeal pursuant to s 8.9 of the EPA Act.

7. At the hearing, Treetop tendered a report that calculated the background noise levels (Ex J). As a result of that report, Treetop and the Council have reached an agreement on the modification of the consent so as to replace condition 6. Although not sought to be modified, and not the subject of contentions, Treetop also agrees to the amendment of condition 34 to clarify the start time for the facility at 9.00 am for members of the public and the hours of 8.30 to 9.00 am being limited to staff.

8. For the reasons set out below, we are satisfied that the conditions agreed between the parties are appropriate and that the modification application should be granted to allow the conditions of the consent to be modified as agreed.

The Noise Control Notice

9. The Noise Control Notice the subject of the appeal was issued pursuant to s 264 of the Protection of the Environment Operations Act 1997 (“POEO Act”). It requires the following action:

“The Council now prohibits Treetop Adventure Park The Hills Pty Ltd from causing, permitting or allowing the operation of the high ropes course including noise from staff and the participants of the course located at the Subject Premises in such a manner as to cause the emission of noise above the level specified below when measured at the point specified below, from the Subject Premises during the times and/or days specified below.

NOISE PROHIBITION

(a) Times and/or days of prohibition:

The prohibition operates at all times when the Treetop high ropes course is in operation. Note that the approved hours of operation are between 8.30am to 5pm, 7 days a week and until 6pm during daylight saving hours.

(b) Maximum Noise Level:

The noise level emitted from the site is not to exceed a sound pressure level of 43.5 dB LAeq measured over a 15 minute period when measured at any Noise-measuring Point

(c) Noise-measuring Point:

At the boundary of or any point within any residential property receiver”

10. The notice appeal is lodged pursuant to s 290 of the POEO Act.

11. The Council’s position is that the Noise Control Notice ought to remain in place, and should be varied to reflect the conditions the subject of the agreement on the modification appeal. Treetop instead submits that the enforcement of the modified conditions is sufficient to ensure that it will comply with the appropriate noise limits, and that the Noise Control Notice should be revoked.

12. For reasons that are set out below, we have determined that the modified conditions are sufficient to ensure that the adventure park will achieve compliance with the appropriate noise limits, and can be adequately enforced under the EPA Act. Accordingly, the discretion to issue a Noise Control Notice ought not be exercised and the Noise Control Notice the subject of the appeal should be revoked.

The intervenors

13. In both matters, Treetop appeals and is the applicant to the proceedings, and the Council is the respondent.

14. Additionally, on 26 May 2020 in the notice appeal, Pain J made orders permitting Mr and Mrs Edwards (“the intervenors”) to “make submissions and rely on acoustic evidence at all stages of the appeal proceedings and cross-examine expert acoustic witnesses.”

The site and the location of neighbouring residents

15. The hearing commenced with an inspection of the adventure park and its immediate surrounds. The Cumberland State Forest is managed by the Forestry Corporation of NSW. The adventure park is located toward the eastern edge of the Cumberland State Forest, amongst a pine grove adjacent to a picnic area known as Swains picnic area. The adventure park comprises five different ropes courses of varying difficulty and all courses start and finish from a central location, near the Swains picnic area.

16. An acoustic barrier that is 4m in height has recently been constructed in an east-west direction to the north of the ropes courses, and separates the adventure park from the picnic area. The barrier comprises two overlapping sections, and has a total linear length of 45m. A vehicular road, the Cumberland Forest Way, runs alongside the Swains picnic area and around the Cumberland State Forest.

17. A number of private residential properties also have rear yards that adjoin Cumberland Forest Way. Four of those properties are 77 Castle Hill Road, and 34, 36 and 53 Larissa Avenue, and are identified by the Council as being the nearest residential receivers for the purpose of assessing the acoustic impact of the adventure park. The intervenors reside at 34 Larissa Avenue. The location of each of those properties relative to the ropes courses are shown in Figure 1.

The power of the Court on appeal

18. In determining each of the appeals, the Court exercises all of the functions of the Council as the consent authority on the modification application, and the regulatory authority on the noise control notice (see s 39 of the Land and Environment Court Act 1979).

19. As such, on the modification appeal, the Court determines the modification application on its merits and pursuant to the provisions of s 4.55(1A). Subsection (1A) provides as follows:

(1A) Modifications involving minimal environmental impact 

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

20. Upon reaching the satisfaction that the matters in subs 4.55(1A) are met, subs (3) provides that:

“In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.”

21. Subsection 4.55(3) makes it clear that in considering the modification application, the Court is required to take into account the relevant matters referred to in s 4.15(1).

22. On the notice appeal, the Court similarly exercises the functions of the regulatory authority to determine whether the Noise Control Notice should be issued, and if so, on what terms. The broad power for the issue of the Noise Control Notice in s 264 of the POEO Act is conferred on the Court. At subs (2) it provides:

(2) The appropriate regulatory authority may, by notice in writing given to such a person, prohibit the person from causing, permitting or allowing—

(a) any specified activity to be carried on at the premises, or

(b) any specified article to be used or operated at the premises,

or both, in such a manner as to cause the emission from the premises at all times or on specified days, or between specified times on all days or on specified days, of noise that, when measured at any specified point (whether within or outside the premises), is in excess of a specified level.

23. There is no particular criterion that must be satisfied prior to the issue of a noise control notice. Therefore, there is a broad discretion on the Court in determining the merits of the notice appeal and whether the power in s 264 ought to be exercised to issue, and therefore maintain, the Noise Control Notice on its current terms or on modified terms. This discretion extends to determining that the Noise Control Notice ought not issue, and therefore the Court has the power to revoke or set aside the Noise Control Notice on that basis.

The zoning of the site and relevant planning controls

24. The site is zoned RU3 Forestry pursuant to the The Hills Local Environmental Plan 2019 (“THLEP 2019”). The approved development is characterised as an “environmental facility”, which is permissible in the zone and is defined as “a building or place that provides for the recreational use or scientific study of natural systems, and includes walking tracks, seating, shelters, board walks, observation decks, bird hides or the like, and associated display structures.” The objectives of the RU3 zone are as follows:

• To enable development for forestry purposes.

• To enable other development that is compatible with forestry land uses.

25. The Hills Development Control Plan 2012 (“THDCP 2012”) applies to the site. Part B Section 1 – Rural of the THDCP 2012 applies to the RU3 zone. Section 1 Chapter 9 applies to community facilities, recreation facilities and places of public worship, and requires that proposals demonstrate they will not give rise to offensive noise as defined in the POEO Act, and that they comply with the NSW Industrial Noise Policy. Specifically, it states the following by way of a development control:

“Proposals must demonstrate they will not give rise to offensive noise as defined in the Protection of the Environment Operations Act and shall comply with the NSW Industrial Noise Policy”

26. Although the development application was assessed under the NSW Industrial Noise Policy, it has since been replaced by the Noise Policy for Industry (“NPI”).

27. The statement of outcome, or objective, of this development control is that “Community facilities, recreation facilities and places of public worship do not impact on the amenity of surrounding development or character of the rural area.”

The history of the acoustic issues

28. The adventure park has a history of complaints concerning its acoustic impact. Treetop has a history of engaging with the Council concerning those complaints, and putting in place measures that seek to address the acoustic impacts associated with the operation of the adventure park.

29. The adventure park opened to the public on 12 December 2016. A week later, on 19 December 2016, the first noise complaint was made directly to Treetop. On the same day, Treetop started including a request to keep noise to a minimum in their safety briefings for course participants.

30. Less than a month following the commencement of its operation, on 5 January 2017, the first noise complaint by a neighbour was made to the Council. The Council held a meeting with Treetop on the following day, subsequent to which Treetop implemented a number of noise measures in an attempt to reduce the noise from participants using the adventure park. This included increasing staff numbers, training team members to address excessive noise events, and further developing the “please keep noise to a minimum” section of safety briefings. On 1 February 2017, Treetop ceased using the call of “clear” on the ropes courses, and implemented changes to its safety measures.

31. Throughout February 2017, Treetop continued to take steps to address noise issues concerning the operation of the adventure park. It engaged an acoustic consultant and wrote to the neighbours providing details of an email address for complaints and the telephone contact for the manager. It received a Prevention Notice from the Council on 7 February 2017 and met with the Council on 22 February 2017, and on 23 February 2017 wrote to the Council setting out the steps it had taken to reduce noise. Treetop also lodged an appeal against the Prevention Notice on the same date.

32. Nevertheless, the complaints continued and the Council issued a Noise Control Notice in April 2017, limiting the noise emitted from the site to 43.5dB LAeq measured over a 15m period. That notice was the subject of an appeal lodged on 12 April 2017.

33. On the same day as the appeal was lodged, Treetop erected a number of noise barriers within the ropes course to attenuate noise directed towards residents.

34. From June to August 2017, Treetop and the Council participated in a conciliation conference on the two appeals. An agreement was reached following the provision of a further noise report, and the Prevention Notice and the Noise Control Notice were both revoked. One of the terms of the agreement was for Treetop to amend the Noise Management Plan for the operation of the development, which was subsequently submitted to the Council.

35. On 16 November 2017, the Council issued a Prevention Notice requiring Treetop to keep additional records and a Noise Control Notice. The Noise Control Notice required the restriction of noise, limiting the noise emission from the site to 50dB LAeq measured over 15 minutes. From 23 November 2017, Treetop began keeping new records at the site in accordance with the Prevention Notice.

36. On 15 December 2017, the acoustic consultant engaged by Treetop met with a surveyor on the site to enable an assessment of the effectiveness of the acoustic barriers in reducing noise emission.

28. On 19 December 2017, the Council’s solicitor requested details of steps taken to investigate noise complaints and corrective actions planned and implemented as a result. Treetop responded on 26 December 2017.

29. Between January 2018 and May 2019 correspondence continued between Treetop and the Council, but the Council continued to receive noise complaints from the neighbours. Within that period, the Council engaged an acoustic consultant, and on 16 August 2018 Treetop requested a meeting with the Council. That meeting was held on 4 September 2018, at which the Council requested the Forestry Corporation of NSW close the picnic area, but this request was declined.

30. Between 8 November 2018 and 3 September 2019, additional noise reports were obtained, and correspondence was exchanged between the Treetop and the Council, before the Noise Control Notice the subject of the appeal was issued on 25 September 2019.

The evidence concerning the acoustic impact

40. The modification application was notified to adjoining and surrounding property owners including previous objectors on the development application. A number of submissions were received by the Council, and further written submissions were given for the purpose of the hearing. Two of the residents, including the intervenors, also gave oral evidence from their homes in the course of the site inspection.

41. The residents’ evidence concerns the character of the noise, its volume and the hours over which it occurs. Their evidence is that the character of the noise, which include screams, yells, crying, shrieking and squealing, is particularly irritating and atypical for the area. They say that its volume is sufficient to distinguish it from other noise in the area, and that it can be heard by residents in the surrounding locality. Further, they consider that it occurs over a long number of hours each day (8:30am to 5pm, or 6pm during daylight savings) and includes weekends and public holidays. As such, the residents, including the intervenors, say that the noise interferes with their enjoyment of their property and some of them are unable to work from home.

42. Expert opinion evidence concerning the acoustic impact was given by Mr Leembruggen, an acoustic consultant engaged by Treetop, Mr Cooper, an acoustic consultant engaged by the Council, and Mr Haydon, an acoustic consultant engaged by the Intervenors. Each prepared a detailed individual report, and participated in the preparation of a joint expert report.

43. As a result of acoustic monitoring by Mr Leembruggen during a period over which the adventure park closed to the public, a further report was tendered with the background noise levels for each of the affected residential receivers (Ex J). The evidence in this report is not contested, and forms the basis for the agreement on the modification to the development consent.

The modification application

44. The conditions that the parties agree should replace conditions 6 and 34 of the development consent, and the additional conditions that they agree should be inserted, are as follows:

“Amended Condition:

6. Acoustic Requirements

The noise level emitted from the development (as a contribution), expressed as an LAeq-15 min level shall not exceed the Rating Background Level when measured or assessed over any 15 minute period at the nominated residential receivers by more than 5dB. The following are the nominated residential receivers and Rating Background Levels:

77 Castle Hill Road – Rating Background Level of 41 dB(A)

53 Larissa Avenue – Rating Background Level of 40 dB(A)

36 Larissa Avenue – Rating Background Level of 39 dB(A)

34 Larissa Avenue – Rating Background Level of 38 dB(A)

34. Hours of Operation

The ropes course facility shall operate between 8:30 am to 5pm, 7 days a week (excluding Christmas Day) and until 6pm during daylight saving hours, but the first public access to the course is to be at 9.00am with the first half hour from 8.30 am to 9.00am reserved for staff only. Extension of these hours shall be subject to separate approval.

New Conditions:

1. A validation report must be obtained from a suitably qualified acoustic consultant, who is eligible for membership, or is an employee of a member firm, of the Association of Australasian Acoustical Consultants (AAAC) and who is independent of any acoustical firms involved in the original development application, the modification of the application or any appeals to date with respect to the subject site, three (3) months from the date of the Court’s modification of the consent in proceedings 2020/205869 and submitted to Council within 28 days of noise measurements. If during the three month period restrictions due to a public health, bushfire or other emergency cause the ropes course to be closed or restricted, the period for completion of the validation report will be extended by an equivalent period accordingly, subject to the consent of Council. Any request to Council for an extension must be submitted in writing within 24 hours of closure or restriction of the ropes course. The report must demonstrate and certify that noise emission from the development, satisfies the conditions of this development consent. Noise measurements must be conducted in accordance with the guidelines contained in the Environment Protection Authority Noise Guide for Local Government & Noise Policy for Industry.

The validation report must address the accumulation effect of noise generated from the premises as well as:

• the weather data and raw noise ambient data used for the determination of the background level;

• the practical issues of determining acoustic compliance of the Treetop contribution of Leq, 15 minute;

• the required noise control measures or operational constraints to achieve compliance with the intrusiveness (Leq, 15 min) criteria. The required controls will need to ensure full compliance with the nominated noise limits at all times; and

• The testing is to be undertaken for not less than 7 days (including a weekend or school holiday period) with at least one half hour period for each day of monitoring comprising a minimum of 60 participants on the course, with data as to participant numbers on each of the monitoring days being provided to the independent acoustic consultant.

If there is any non-compliance, the validation report must identify the additional control measures that are necessary to achieve compliance. Any recommendations contained in the validation report must be implemented in accordance with the report to the satisfaction of Council within 1 month of Council giving their approval for the recommendations, or such other reasonable time as the Council otherwise agrees.

Within 1 month of completion of the recommended works, a further validation report must be obtained, from a suitably qualified acoustic consultant, who is eligible for membership, or is an employee of a member firm, of the Association of Australasian Acoustical Consultants (AAAC) and who is independent of any acoustical firms involved in the development applications or the Appeals to date with respect to the premises, demonstrating compliance with the noise conditions in this consent and must be submitted to Council to its satisfaction, communicated in writing.

The process in this condition will be repeated until compliance with the noise conditions is demonstrated to the satisfaction of Council.

Reason: To protect Acoustic Amenity”

45. In support of their agreed position that the development consent should be modified in this way, the Council provided submissions on the jurisdictional matters that are required to be considered in determining the modification application.

46. Section 4.55(1A)(b) requires the Court, in exercising the functions of the consent authority, to be satisfied that the modification “is of minimal environmental impact” and that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”.

47. As set out by the Council in its submissions, the modification application does not propose any change to the adventure park in a physical or operational sense, but seeks to amend the noise limits to reflect the actual current background noise levels at individual residential receivers. Accordingly, we accept that the modification has minimal environmental impact for the purpose of s 4.55(1A)(a) of the EPA Act.

48. For the same reasons, we are satisfied that the proposed modified development is substantially the same as that for which consent is granted. There are no changes to the physical or operational aspects of the adventure park, but the modified conditions will enable the better regulation of noise emission.

49. Having reached the satisfaction that the matters in subs 4.55(1A) are met, s 4.55(3) requires that the Court take into consideration the relevant matters in s 4.15(1).

50. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. We have considered the THLEP 2019 and the THDCP 2012, the relevant portions of which are set out above at [24]-[27], and consider that the agreed modification of the development consent will provide an outcome that is consistent with the NPI and therefore not give rise to offensive noise. The regulation of the adventure park by imposing these conditions also serves to better achieve the objective of the RU3 zone, which is to “enable other development that is compatible with forestry land uses”. Accordingly, there is nothing in the relevant matters that arise pursuant to s 4.15(1) that warrants refusal of the modification, and no other relevant matters arise for consideration.

51. Section 4.55(3) also requires consideration of the reasons given by the consent authority for the grant of consent. We have considered the original development consent 1402/21013/HC and the 2013 report referred to in condition 6 of the consent. We accept that, in light of the ongoing history of complaints concerning the noise emitted from the use of the adventure park, condition 6 of the consent is not adequate to achieve the objectives of the condition and that the proposed modification to condition 6 allows for a more effective solution to minimise noise impacts, by mandating a process of monitoring to demonstrate compliance with the specified noise limit at the relevant residential receivers.

52. Further, each of the contentions that were initially raised by the Council on the modification application have now been resolved through the agreed conditions. The experts agree that if the adventure park operates in accordance with the amended condition 6, it will not have an adverse impact on the amenity of the adjoining properties. The Council submits, and we accept, that the additional condition “provides for a better regulatory outcome of testing consistent with the Noise Policy for Industry to ensure that the operator of the facility undertakes mitigation measures to achieve compliance with the noise limits in the event that testing reveals any non-compliance at any receiver” (the Council’s submissions, p 4). In addition, the amended condition 6 provides for different noise limits that reflect the background noise levels for each receiver, which we accept results in an outcome that is consistent with the NPI and better reflects the appropriate measure of acceptability of noise emitted from the adventure park.

53. For all of these reasons, we are satisfied that it is appropriate to modify the development consent (1402/2013/HC) in accordance with the agreed modified conditions.

The Noise Control Notice

54. Following the grant of the modification application in accordance with the agreement of the parties, the related notice appeal arises for the Court’s determination.

The Council’s position that the Noise Control Notice should be modified

55. The Council’s position is that the Noise Control Notice should be varied consistent with its proposed variation to the Noise Control Notice, which was filed on 21 December 2020 (“proposed varied notice”). The proposed varied notice is in similar terms to the modified condition 6 above, and the additional condition quoted at [45] requiring validation reporting. The Council submits that the power under s 264 of the POEO Act extends to requiring the validation reporting process set out in its proposed varied notice. In support of this position, it relies on the decision of Sheahan J in Martin v Campbelltown City Council [2000] NSWLEC 228, in which his Honour made a direction that the Noise Control Notice be varied to include noise performance monitoring and stated (at [78]) that:

“To achieve [the limit of 5dB(A) above background] “on the ground”, Martin needs to embark further on a noise reduction programme, the details of which can be included as conditions of an amended Notice”.

56. The Council advances a number of reasons why such an outcome is appropriate in the circumstances.

57. Firstly, the Council submits that there is an extensive history of non-compliance with the intrusive noise criterion of 43.5 dBA, which was required to be complied with by condition 6 of DA1402/2013/HC. The Council says that this non-compliance has given rise to what the Council says is offensive noise. In support of its position, it relies on the following evidence:

• The acoustic assessment report dated 5 May 2018 (Ex 3 Tab 31), which measured general noise at a LAeq of 46-48 dB(A) from the site, and 49-50 dB(A) measured at 77 Castle Hill Road.

• The Acoustic Compliance Testing report dated 7 June 2019 (Ex 3 Tab 36), which measured noise levels at a LAeq of 47 dB(A) from the site when measured at 53 Larissa Avenue.

• The Acoustic Compliance Testing report dated 10 January 2020 Ex 3 Tab 37), which assessed results from 13 October 2019 and concluded that offensive noise was being generated by the site.

• The Acoustic Compliance Testing dated 6 December 2020 (Ex 4), which found that the noise levels emitted from the site were at a LAeq of 50 dB(A).

• The assessment dated March 2017 (Ex 3 Tab 27) by Mr Leembruggen, which found LAeq levels of 48.5, 49.5, 47,5 and 50 dB(A).

58. The Council submits that, even after the construction of the 4m high acoustic barrier, the measurements have demonstrated that there would be a breach of the new levels specified in the agreed modified conditions. As such, the Council submits that the Noise Control Notice needs to remain in place to ensure that Treetop complies with the new levels. The Council submits that, although the new levels are already imposed as a condition of consent under the modified consent, the Noise Control Notice is pursuant to the statutory scheme under the POEO Act, which has different objectives and provisions.

59. Secondly, the Council submits that the Noise Control Notice should be varied and not revoked so that it can retain the ability to recover compliance costs pursuant to s 267B of the POEO Act and the administrative costs of preparing and giving the original Notice pursuant to s 267A(6) of the POEO Act.

The Intervenors’ position in support of the proposed varied notice

60. The intervenors provide a number of reasons to support the Council’s position on the proposed varied notice.

61. Firstly, the intervenors say that the noise is intrusive and causes significant intrusion in their enjoyment of their family home. They rely on the affidavit of Mr Edwards of 12 November 2020, in which he outlines the nature and character of the noise, which occurs at times when he expects to enjoy peace and quiet, and which is atypical for the area.

62. Secondly, the intervenors point to the long history of noise complaints, and which date back to the commencement of operation of the adventure park.

63. Thirdly, the intervenors rely on the complaints from other affected residents in the locality, including the oral evidence on site from the occupants of 36 Larissa Avenue.

64. Fourthly, the intervenors rely on the lengthy history of non-compliance with condition 6, which warrants the need for intervention and the proposed varied notice.

65. Fifthly, the intervenors submit that the exceedance of the criteria of 43.5 dB(A) is demonstrative of an exceedance of what should be considered reasonable and, in the context of considering “offensive noise”, the provision in the POEO Act operates independently of the consent.

66. Sixthly, the intervenors point out that in the joint report it is agreed by the acoustic experts that the residents have identified “that the noise from Treetop interferes with their rest and repose, which by definition from the Act is offensive noise”.

67. Seventhly, the intervenors rely on the evidence of Mr Cooper and Mr Haydon, who have both assessed the noise as offensive, which is not contradicted by any opinion of substance from Mr Lembruggen.

68. In particular, the intervenors submit that the Noise Control Notice is a statutory enforcement mechanism that is specifically legislated in addition to the ability to enforce conditions of development consent. The intervenors submit that there is nothing in the words of s 264 of the POEO Act that confine the issue of a Noise Control Notice to activities that are otherwise unregulated. In light of the history concerning the noise emitted from the adventure park, the intervenors submit it is appropriate for the available power under the POEO Act to be exercised to ensure that the emission of noise is limited to that specified in the proposed varied notice.

Treetop’s position that the Noise Control Notice should be revoked

69. Treetop opposes to the making of any order to vary the Noise Control Notice, and submits that, in circumstances where the parties reached an agreed position in the modification appeal, the appropriate order in the notice appeal is for the Court to revoke the Noise Control Notice issued by the Council on 23 September 2019. This position is advanced for a number of reasons.

70. Firstly, Treetop submits that it is premature and unnecessary to issue the proposed varied notice in circumstances where it is in the same terms as the modified conditions of consent, which are enforceable under the EPA Act. Treetop says that until the noise monitoring contemplated by the modified conditions has been carried out, compliance with the conditions is the appropriate vehicle for achieving compliance with the noise limits.

71. Secondly, Treetop submits that the terms of the modified conditions and the terms of the proposed varied notice make it inappropriate to issue a Noise Control Notice. Treetop points out that the proposed varied notice incorporates the conditions which set out a monitoring regime that envisages repeated monitoring and implementation of measures until compliance with the noise limit is achieved. In light of this, Treetop submits that it would be inappropriate to issue a Noise Control Notice that has immediate criminal sanctions under s 265 of the POEO Act if the limit is breached. Further, given that the modified conditions and the proposed varied notice require a regime where the noise monitoring may establish a non-compliance with the noise limit, and a process is authorised by the condition whereby there is a repeat of the testing and additional control measures until compliance is achieved, there would be uncertainty around whether there was a breach of the proposed varied notice in circumstances where the noise limit was not adhered to.

72. Thirdly, Treetop submits that noise control notices are most appropriate in circumstances where there is a source of noise that is otherwise unregulated, not where the noise limit is already established by a condition of consent. Treetop points out that there are only two judicial decisions concerning noise control notices, and in both Sumar Produce Pty Limited v Griffith City Council [2000] NSWLEC 27; Sumar Produce Pty Limited v Griffith City Council [2000] NSWLEC 72 and Martin v Campbelltown City Council, the activities sought to be regulated by the notice were not otherwise the subject of noise limits in the conditions of consent. In circumstances where there is a regulatory regime under the EPA Act for compliance with the modified conditions, Treetop submits that it is appropriate for compliance to be enforced using that regime.

69. Fourthly, Treetop submits that the Council has not established any basis for the issue of the proposed varied notice. Whilst Treetop accepts that s 264 of the POEO Act does not require a breach of a condition of consent before a notice is issued, it submits that the outcome in the modification appeal demonstrates that the Noise Control Notice the subject of the appeal was based on an unworkable condition of development consent, and that a more appropriate outcome is for the modified conditions to “perform their function”.

70. In reply on this same point, Treetop submits that the evidence of the past breaches are irrelevant given that the evidence relates to a previous condition of consent. Treetop submits that it is not appropriate to issue an order in relation to a new condition for which there is no evidence of breach in circumstances where the new condition has not been fully implemented.

71. Finally, Treetop submits that the term of the proposed varied notice that reflects the condition inserted in the modified conditions, which requires the repeated noise monitoring and implementation of measures until compliance is achieved, is outside the scope of the power under s 264 of the POEO Act. Treetop submits that nothing in s 264(2) allows a Noise Control Notice to include a regime of noise monitoring or require the implementation of undetermined ameliorative measures. In support of its position, Treetop points out that in Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 104, Talbot J held that a proposal by the applicant to install insulation and double glazing was beyond the scope of a Noise Control Notice.

The Noise Control Notice should be revoked

76. As set out above at [23], there is a broad discretion that arises in determining whether to exercise the power to issue a Noise Control Notice pursuant to s 264 of the POEO Act. Whilst we acknowledge the history of the acoustic issues, we consider that the proposed varied notice should not be issued and that the Noise Control Notice should be revoked for the first two reasons submitted by Treetop.

77. Firstly, the terms of the proposed varied notice are already agreed as modified conditions of the development consent for the operation of the adventure park. As such, once the modified conditions are imposed as a result of the Court’s orders below, they are required to be complied with. In our view, the compliance regime under the EPA Act is sufficient to enforce compliance with the modified conditions. Until the monitoring regime contemplated by the modified conditions has been carried out, it would be premature to impose another statutory regime for enforcement and it is entirely unnecessary to do so. The modified conditions of consent are sufficient to ensure that there will be compliance with the modified noise limits in condition 6, therefore ameliorating the acoustic impacts, and can be enforced through the EPA Act.

78. Secondly, the modified conditions of development consent authorise a process by which there is contemplated to be breaches of the noise limits, which will be then resolved by the implementation of additional control measures. It sets a process for reporting on that monitoring, and if the monitoring reveals breaches, it requires the implementation of additional noise control measures including the potential reduction in the number of course participants in the adventure park. Upon undertaking those control measures, further noise monitoring is required. The process is then repeated if there continues to be a breach of the noise limits, and is repeated until compliance is achieved. In circumstances where the modified conditions of consent specifically require a process to be undertaken that contemplates breaches of the noise limits until compliance is achieved, it is entirely inappropriate to issue a Noise Control Notice that seeks to enforce the noise limits. To do so would inappropriately expose Treetop to criminal sanctions in circumstances where they are complying with the modified conditions of consent that contemplate the breach.

79. Further, we are not persuaded that the recovery of administrative costs and compliance costs pursuant to s 267B of the POEO Act, which is advanced by the Council as a reason to vary the Noise Control Notice, is a sufficient basis to warrant the issue of the proposed revised notice. The consequences of enforcement of a Noise Control Notice are not sufficient to form the basis for its issue. That would be the tail wagging the dog.

80. For those reasons, the discretion for the issue of a Noise Control Notice that arises pursuant to the provisions of s 264 of the POEO Act ought not be exercised in the circumstances, and the Noise Control Notice should be revoked.

81. In making this determination, we are not required to consider whether the monitoring regime contemplated by the proposed varied notice, which reflects the modified conditions, is within the scope of the power that arises under s 264 of the POEO Act.

The outcome of the appeals

Proceedings 2020/205869

82. The Court orders that:

1. The appeal is upheld.

2. The s 4.55(1A) application 1402/2013/HC/A to modify development consent 1402/2013/HC is approved subject to the conditions in Annexure A.

3. As a consequence of order (2) above, the development consent 1402/2013/HC is subject to the consolidated, modified conditions of consent at Annexure B.

4. The exhibits are returned, except for Exhibits A, B and J.

Proceedings 2019/302392

83. The Court orders that:

1. The appeal is upheld.

2. The Noise Control Notice issued by The Hills Shire Council on 23 September 2019 is revoked.

………………………

J Gray

Commissioner of the Court

&

………………………

G Shiels

Acting Commissioner of the Court

Proceedings 2020/205869

Annexure A (167877, pdf)

Annexure B (209322, pdf)

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Decision last updated: 30 March 2021