Weal v Bathurst City Council - [2000] NSWCA 88

NEW SOUTH WALES COURT OF APPEAL

CITATION: Weal v Bathurst City Council & Anor [2000] NSWCA 88

FILE NUMBER(S):
40509/99

HEARING DATE(S): 6 April 2000

JUDGMENT DATE: 24/11/2000

PARTIES:
William James Weal - Appellant
Bathurst City Council - First Respondent
Twentieth Super Pace Nominees Pty Ltd (t/as Specialized Container Transport)

JUDGMENT OF: Mason P Priestley JA Giles JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40179/98

LOWER COURT JUDICIAL OFFICER: Bignold J

COUNSEL:
T S Hale SC & E A White - Appellant
W R Davison SC - First Respondent
D R Parry - Second Respondent

SOLICITORS:
Writer Ryan Boesen, Toukley - Appellant
Housten Dearn O'Connor, Burwood - First Respondent
McIntosh McPhillamy & Co, Bathurst - Second Respondent

CATCHWORDS:
TOWN PLANNING - development consent - whether council failed properly to take into consideration the noise impact of the development - deferred commencement condition that consent not to operate until "relevant approvals" by EPA had been obtained - despite deferred commencement condition, council still obliged to consider noise impact - (by majority) on facts, should be inferred that it did not properly do so.

LEGISLATION CITED:

DECISION:
(By majority) (1) Dismiss the first respondent’s application to adduce fresh evidence on the appeal. (2) Appeal allowed. (3) Set aside the orders made by Bignold J dismissing the application and as to costs. (4) Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect. (5) Order the respondents to pay the appellant’s costs of the proceedings before Bignold J and of the appeal.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40509/99
LEC 40179/98

MASON P
PRIESTLEY JA

GILES JA
Friday 24 November 2000

WEAL v BATHURST CITY COUNCIL & ANOR

JUDGMENT

MASON P: I have had the benefit of reading the judgment of Giles JA which sets out the facts and identifies the relevant legal principles.
I agree that the application to adduce fresh evidence in the appeal should be rejected, for the reasons stated by Giles JA.
For reasons set out by Giles JA, it is clear that the Council recognised the significance of noise to the development application. It responded in part by conditions 31, 51, 59, 65 and 66 of the development consent, but principally by condition 1 of the deferred commencement conditions:
1.This consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained.
REASON: Because of representations to that effect made by that body. (Section 90(1)(n) of the Environment Planning and Assessment Act, 1979, as amended.)
If condition 1 was a legally deficient response or evidence of a legally deficient approach to the Council’s duty then the consent could not be justified by reference to the particular conditions which deal only peripherally with noise. I do not understand the Council to dispute this.
Like Giles JA, I respectfully agree with the analysis of s91AA (Deferred commencement consent) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) found in the judgment of Talbot J in Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-6. Section 91AA does not free a consent authority from its obligation to consider all relevant matters as required by s90(1).
Some general considerations about an administrator’s duty to take certain matters into consideration
The distinction between judicial review as to processes and judicial review as to merits (proscribed, except according to the Wednesbury principle) may be plain enough in theory. But even where it is clear that a factor (eg noise) is a relevant consideration, there is room for wide disagreement as to what must be shown before an administrator will be found to have failed to have taken that matter into consideration.
The differing goals of judicial review deserve enunciation. According to Craig, Administrative Law 3rd ed p3:
For some it is the law relating to the control of government power, the main object of which is to protect individual rights. Others place greater emphasis upon rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Yet others see the principal objective of administrative law as ensuring governmental accountability, and fostering participation by interested parties in the decision-making process.
The level of judicial scrutiny depends to some extent upon one’s perception of the aims of judicial review.
A number of questions arise. What are minimal levels of efficiency, rationality, accountability, or participation that the court is prepared to tolerate? To what extent is the political accountability of the decision-maker taken into account in any margin of appreciation? What level of apparent imperfection concerning matters of detail should be tolerated? On all these issues it is to be remembered that:
…the authority of the judicature is not derived from a superior capacity to balance the interests of … the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
(Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 per Brennan J)
There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J’s formulation of “proper, genuine and realistic consideration upon the merits”. This was in the context of s5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have general acceptance in the Federal Court of Australia (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 57 where the authorities are collected by Merkel J).
There was no failure to take the noise problem into consideration
For the reasons which follows, I cannot characterise the Council’s actions as failing such a test.
Sometimes there will be a failure to take matters into consideration where the decision-maker is shown to have had inadequate personal acquaintance with the facts and issues and where the decision-maker was no more than a rubber stamp for someone lower in the administrative hierarchy. Parramatta City Council v Hale (1982) 47 LGRA 319, upon which the appellant placed considerable reliance, was such a case. There, the course of proceedings at the critical meeting “precluded the members of the council as a group from having virtually any opportunity to comprehend and evaluate, from their own resources, or with the aid of the council’s expert officers, the significance of material changes in highly relevant aspects of matters the council was required under s90(1) to take into consideration” (per Street CJ at 336). This did not happen in the present case, even if there are signs that the Council was anxious to proceed without further delay. The outer potential of the noise issue was recognised and a decision made which accommodated it.
Section 90(1)(b) required the Council to take into consideration the impact of the particular development on the environment. And, because harm to the environment was likely to be caused due to noise, the Council was also obliged to take into consideration “any means that may be employed to protect the environment or to mitigate that harm.”
Many other relevant factors had to be taken into consideration, including the economic effect of the development in the locality (s90(1)(d)). The weighing of factors tugging in opposite directions was the task of the Council, not the Court. Nevertheless, the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration. Legally sufficient consideration of the noise issues extended to consideration as to appropriate conditions limiting and controlling noise if consent was to be forthcoming.
As I read the judgment of Giles JA, the critical deficit in the decision-making process was the Council’s failure to come to its own view as to the noise impact of the development or the means that might be employed to mitigate the noise impact. The consent left unresolved the conflict between the Council’s consultants and the Environment Protection Authority (EPA) as to the anticipated noise levels. Stemming from this, the consent left it up to the EPA to determine whether to grant the necessary approval or licence under the Pollution Control Act 1970 and, if so, to impose such noise-limiting conditions in the licence as the EPA thought fit. The consent did not make compliance with the EPA licence or its conditions a condition of the consent. All that it did was to defer commencement until such time as the Council declared itself satisfied that the developer had obtained “the relevant approvals by” the EPA (cf s91AA).
The report of the Council’s Director, Planning and Development dated 27 February 1998 makes it tolerably clear that the Director - and the Council that adopted his recommendation - contemplated that the EPA would be carrying out further scientific examination of the noise issues. Indeed, I infer that the Council recognised the distinct possibility that the EPA would continue to take a more serious attitude to noise than the Council’s consultants, and act accordingly, either by withholding a licence or imposing stringent conditions.
In my view, the obligation to take noise and its alleviation into consideration did not require the Council to resolve the dispute as to noise levels. The existence of the dispute between the consultants and the EPA was recognised; and a condition was imposed that ensured and was designed to ensure that the EPA’s assessment would ultimately prevail (“It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA would issue its approval”) to the extent that the EPA decided to press the point. I am not saying that Council discharged all of its obligations by taking such a stance, but I disagree with Giles JA’s conclusion that the process went off the rails at this point.
I agree that, for this project, proper consideration required an adequate understanding of the state of affairs involving noise and the evaluation of the relevant s90 matters consistent with that understanding. Generally speaking, understanding the scope of a problem is a prerequisite to addressing its solution (by imposing a condition or, in an extreme case, rejecting the development application). But I respectfully part company with Giles JA at his conclusion that the Council’s understanding was so deficient as to vitiate the particular consent. In my view, a problem can be recognised and addressed without precise determination of its scope, at least so long as the decision is made in the light of an understanding of the outer limits of the problem and so long as the chosen means “take into consideration” a fair assessment of their potential impact. This is what happened here, for the reasons stated above.
The need to take the noise problem into consideration did not require its exact detail to be determined before being weighed against all other relevant factors. Multifactorial decision-making is complex, and necessarily impressionistic. This is particularly the case when the decision-maker is determining upon future conduct as distinct from the traditional judicial task of applying a norm to a closed period of past conduct.
Were this a merit review, one could be critical of the dismissive approach of the Director’s obviously weighted analysis of the conflict between the Council’s consultants and the EPA position as well as the haste with which the Council proceeded to final determination in the teeth of EPA criticism. Furthermore, the solution chosen is deficient compared to one that made the consent itself subject to compliance with the conditions of EPA licence. But these are matters for which the Council must answer to its constituents. The merits of the consent are not themselves a matter for the Court and these matters do not satisfy me that there was a failure to take the noise problem into consideration.
Vital to my decision is a particular interpretation of the consent. What was contemplated by the first condition of the consent is the obtaining of “the relevant approval by the Environment Protection Authority”. As the law stood in March 1998, this was a reference to a pollution control approval as required by s27 of the Noise Control Act 1975 as well, perhaps, to the licence required by s18 of that Act. The power to grant such approval and licence lay with the EPA, and it could be exercised conditionally (see Pollution Control Act 1970, ss17D, 17K). If no such approval were forthcoming, the development consent could and would never operate. By this means the Council addressed the noise issue and satisfied its legal obligation to take that issue into account in disposing of the development application.
All this would change significantly when and if the Protection of the Environment Operations Act 1997 (the PEO Act) commenced, but the Council was not obliged in March 1998 to ignore the current law or to await or anticipate the commencement of the PEO Act on pain of being held to have failed to take proper consideration of the noise issue. That Act had been passed and had received the Royal assent in 1997 but its operative commencement was yet to occur at the time the Council gave the consent that is under challenge. The PEO Act would repeal the Noise Control Act and the Pollution Control Act, subject to any regulations of a savings or transitional nature that might be made in the future (see Schedule 5 cl 2(1)). (As it was later to turn out, a pollution control approval issued for non-scheduled premises was terminated by clause 9 of the Protection of the Environment (Savings and Transitional) Regulation 1998 which was made on 24 December 1998 and which would commence operation with the PEO Act itself, on 1 July 1999.)
Except for scheduled development work on scheduled premises, control of noise under the PEO Act would no longer be subject to approval or licensing. It would be open to the Executive to pass regulations making this work on these premises a scheduled activity on scheduled premises (cf PEO Act, ss5, 47). Absent such regulations, there would be power to issue prevention notices (suspended pending exercise of a right of appeal to the Land and Environment Court (s99)) and noise control notices (Part 8.6). Such powers would vest in the EPA (to the exclusion of the Council) only to the extent that the terminal would be carried on “by” the Council (see s6(1) and (2). The EPA would also have power to recommend to the Minister the issue of prohibition notices (Part 4.4).
The PEO Act would also create an offence of causing noise by an occupier who operates any plant and who fails to maintain the plant in an efficient condition or to operate the plant in a proper and efficient manner (s139), but this would not really address the matters of present concern.
The PEO Act eventually commenced on 1 July 1999. Had it commenced before the EPA issued a pollution control approval for the subject works, then the development would have been incapable of commencement having regard to my interpretation of the first condition of the development consent. It is common ground that the EPA issued conditional pollution control approval on 31 July 1998 (RB 58) and that such approval was terminated on 1 July 1999 by force of the transitional provisions of the PEO Act and the Regulation referred to above.
In my view, the failure in March 1998 to factor in the possibilities and uncertainties of the yet to be commenced PEO Act regime did not constitute a failure to take noise into proper consideration.
Wednesbury unreasonableness
Because I conclude that the appellant fails in his challenge based upon s90 of the EPA Act, it is necessary to consider the alternative challenge based upon Wednesbury unreasonableness.
The test is stringent. When, “the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another ‘a court should proceed with caution… lest it exceed its supervisory role by reviewing the decision on its merits’ (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.
By these criteria, the processes and outcome of this development application survive challenge. The Council adopted a method to address the noise issue that involved an independent body (EPA) and the development was suspended until that body had had an opportunity to act as it saw fit under the prevailing law. True, that law had a certain fragility in that it would be brought to an end upon proclamation of commencement of the POE Act, but nothing appeared on the face of that Act to disclose the nature or extent of transitional provisions that were to be addressed under a broad regulation-making power. Nor was it legally irrational for the Council to determine the development application in the way it did, leaving it to the PEO Act regime to operate according to its terms in relation to this existing consent.
Even taking the PEO Act into account, the matter was not left entirely at large given that the new Act has its own legislatively-approved methods for dealing with noise problems in industry. I have already indicated means whereby that Act could apply to this development.
There are obvious deficiencies if one compares what was done in condition 1 with what might have been achieved if compliance with EPA conditions had been made a (permanent) obligation of the developer through a stipulation to that effect in the development consent. But I cannot conclude that the grant of this development approval by the politically-accountable members of the Council constituted an abuse of their power according to the requisite legal standard.
I would dismiss the appeal with costs.
PRIESTLEY JA: The President agrees with Giles JA that the fresh evidence application should be refused. I also agree, for the reasons given by Giles JA.
However, on the main point in the appeal, the President and Giles JA come to different conclusions. The reasons of both are forceful. I agree with what the President says about the general approach both the Land and Environment Court and this Court should take to appeals of this kind. However, in this case, that general approach does not in my opinion preclude the upholding of the appeal, and for the reasons given by Giles JA, I think the appeal should be upheld.

One of the matters on which I have reached an opinion different from that of the President, which seems to me to be of some importance, concerns Condition 1 of the deferred commencement conditions. If there had not been any reason to think that the law concerning the powers of the Environment Protection Authority might change in significant and relevant respects, this Condition might not have been vulnerable to substantial criticism. However, the Council knew it was a real possibility, when it made its decision, that there could soon be such a change in the Environment Protection Authority’s powers. In fact the law did change, but whether it did or not, I think the Council was obliged to consider what steps should be taken to guard against the situation that would come about if there was a change. The Council did not do this. This leads me to conclude, when taken with the other reasons given by Giles JA, that the imposition of Condition 1, without guarding against the change possibility (and here I adopt the President’s words from his par 4) was either evidence of a legally deficient approach to the Council’s duty, or was itself a legally deficient response to that duty.
I agree with the orders proposed by Giles JA.
GILES JA: A company trading as Specialised Container Transport (“SCT”) applied to Bathurst City Council (“the Council”) for development consent for the use of land as a rail freight terminal. The Council granted consent. Mr William Weal, who lived near the land, brought proceedings in the Land and Environment Court claiming a declaration that the consent was void and an order restraining SCT from acting upon it. This is Mr Weal’s appeal from Bignold J’s dismissal of the proceedings.
It is sufficient to go to Mr Weal’s contention that the grant of development consent was void because the Council failed properly to take into consideration the noise impact of the development, alternatively that its decision in relation to noise impact was Wednesbury unreasonable.
The development application
The land has a frontage to Lee Street and White Rock Road, Kelso. At an earlier time it was occupied by the Department of Defence. In about February 1996 the Council took a lease of the land from the Commonwealth of Australia with an option to purchase.
During 1996 the Council investigated the development of the land as a rail freight terminal. At the end of 1996 it resolved that expressions of interest in establishing an intermodal transport terminal be invited. It advertised for expressions of interest, SCT responded, and negotiations with STC commenced.
In April 1997 the Council exercised the option to purchase the land. Completion of the purchase took place in early June 1997.
In August 1997 the Council selected SCT as its preferred terminal operator and agreed to sell and/or lease the land to it.
SCT lodged the development application on 11 September 1997. The land was zoned industrial. It had an area of 14.735 hectares. Apart from a number of old storage sheds and a rail siding in disrepair, it was vacant. On the opposite side of White Rock Road was a rural residential area, and the noise impact of development of the land as a rail freight terminal was an obvious consideration.
The development application was accompanied by a “town planning brief” describing the site and its existing buildings, giving reasons why it was a suitable site for a rail freight terminal, and setting out the manner in which it was proposed that the terminal be developed and operated.
It is convenient to take more detailed information as to the development and operation of the terminal from the Terra Sciences report in due course provided to the Council, see later in these reasons. The broad effect of the town planning brief was the same. Cargo would be brought by road to the terminal from Sydney and other areas of New South Wales, and would there be loaded on trains for carriage to Adelaide. Similarly, cargo brought by rail to the terminal from Adelaide would be unloaded and taken by road transport to ultimate destinations. A spur line would bring railway wagons to warehouses to be constructed in the southern part of the site, proximate to the residential area on the other side of White Rock Road, and the loading and unloading would take place in and around the warehouses. There would be trains, railway wagons and trucks moving into, in, and from the site, with shunting and coupling and uncoupling of trains, and fork lifts would be used to load and unload palletised cargo and containers. Containers would be stored in an open area. The terminal would operate seven days a week twenty-four hours a day, and when fully developed would have the capacity to service seven 900 metre long trains per week, each with the capacity of fifty semi-trailers.
The town planning brief included -
“SCT is currently undergoing a development for a similar large facility at Canningvale WA; for this project a noise assessment was conducted and this assessment indicated that the proposed rail freight facility in the Canningvale WA location, will not cause any impacts in terms of noise
(refer attached extract of the report in Appendix A)
Based on the previous assessment indicating compliance of the WA terminal which is of a similar (large) nature, this development at Kelso falls well within environmental controls and has the following added benefit being;
Residential properties are of a greater distance away from any possible noise sources, ie; the nearest Residences in the area are 100 metres plus from the nearest railway sidings compared to the 60 metres minimum at the WA terminal.”
The town planning brief did not in fact attach Appendix A. An accompanying letter said that “the Noise assessment document will follow in the next few days”.
That document was never provided. Instead, on 28 October 1997 SCT provided to the Council a letter from Herring Storer Acoustics, which had carried out the noise assessment for the Canning Vale terminal. The letter briefly described the assessment and, making it plain that they were preliminary only, offered “comments and recommendations” in relation to noise emission from the Kelso terminal. The letter said -
“In order to accurately evaluate resultant noise levels for another site, then noise modelling would have to be carried out using actual ground level contours, with noise sources located in positions representative of normal operations at that site. This would include the proposed 3 metre high bund to extend from the southern corner, north to the creek along White Rock Road. For noise sources less than 3 metres above the ground, a barrier such as this would provide additional attenuation in the order of 5-10 dB(A) dependent on heights and distances of both ‘source’ and ‘receiver’ in relation to the top of such a barrier. Such a barrier would be beneficial both acoustically and visually if ‘line-of-sight’ is interrupted. The above assessment provides indicative predictions, based on extensive measurements and modelling which show that noise associated with the proposed Bathurst facility is manageable in order to comply with the regulatory criteria pertaining to the subject site and environs.”
Assessment of the development application
The Council advertised the development application, and a number of submissions were received. They included a submission from solicitors acting for Mr Weal and submissions from others in and near Lee Street and White Rock Road. All submissions were put before the Council on 5 November 1997, together with a summary prepared by the Council’s Director, Planning and Development (“the Director”). Noise impact was prominent in the opposition to the development, and the summary of the submission on behalf of Mr Weal included -
“Concerned about the lack of a noise impact statement available to be considered in conjunction with the application. Council is requested not to consider the application until an appropriate noise impact statement has been provided, and secondly, interested persons have been given the opportunity to examine and consider the document.”
Conscious of its position as both the owner of the land, with an interest in the development, and the consent authority, on 21 November 1997 the Council engaged Terra Sciences Pty Ltd (“Terra Sciences”) to consider the development application, prepare a report, and submit the report to the Council for its consideration. In its proposal to the Council, implicitly accepted by the engagement, Terra Sciences had said -
“Our approach to complete the task will be to prepare a report that satisfies Council’s obligations under Section 90 of the Environmental Planning and Assessment Act. This will involve:

assessment of the development in accordance with Section 90 heads of consideration;
assessment of the information supplied to Council as part of the Development Application (including the traffic study and noise assessment which are yet to be submitted);
site inspection;
consultation with the relevant government agencies, Council departments and developers;
consideration of issues raised in public submissions; and
making a recommendation as to whether the application should be approved, refused or
otherwise.”

The Environment Protection Authority (“the EPA”) then became involved. A letter dated 23 December 1997 from Mr Weal’s solicitors to the Council included -
“In the meantime we have undertaken certain investigations on behalf of our client relating to the potential problem with noise. You will recall we previously referred to this potential problem and urged Council to insist upon a noise study before giving consideration to the application.
We believe that the proposed terminal would, by definition, probably be ‘scheduled premises’ under the Noise Control Act, 1975 and would require pollution control approval and hence the appropriate licence to be issued by the Environmental [sic] Protection Authority to operate.
We note from information obtained from the Environmental Protection Authority there has been no approach by Council to the Environmental Protection Authority and we believe Council or the consultant should have immediate discussions with the Environmental Protection Authority concerning this.”
The letter went on to suggest, with reasons, that the noise level at the residences near the terminal would exceed EPA recommended noise levels and be unacceptable, and that the site was such that “there will be difficulties and restrictions on the ability of the developer to construct effective attenuation facilities”.
The EPA itself wrote to the Council by a letter dated 8 January 1998. The letter included -
“I refer to the proposed rail/road container terminal off White Rock Road, Kelso.
The proponents have provided the Environment Protection Authority (EPA) with a very brief overview of the proposal and were requested to return with their full proposal so that the EPA could advise them of our requirements and of applicable limits. To date the proponents have not responded to this offer.
The EPA has received a large number of representations from persons likely to be affected by the proposal and the EPA has followed events presented in the media.
Although the EPA does not have any definitive information of this proposal, our experience with similar developments at Blayney and more recently at Parkes enables us to provide some preliminary advice.
The premises will be scheduled premises under the Noise Control Act and will require the EPA’s approval before any earthworks are commenced onsite. During construction the emissions would have to comply with the limits as set out in the EPA’s ‘Environmental Noise Control Manual’. In relation to noise emissions during operation, including vehicle movements to and from the facility, the following limits would be applicable -
·              7.00 am to 7.00 pm               45 dBA
·              7.00 pm to 10.00 pm            40 dBA
·              10.00 pm to 7.00 am             35 dBA
The noise would be referenced to the nearest of [sic] most affected residence or school (including dormitories) and must be free of tonal, impulse or other annoyances. If these were present, the above limits would need to be reduced by 5 to 10 dBA.”
This was followed by a letter from the EPA to the Council dated 16 February 1998. The letter and the Council’s reply should be set out in full.
The letter from the EPA read -
“I refer to the proposed rail/road container terminal proposed for White Rock Road, Kelso.
The Environment Protection Authority (EPA) wrote to Bathurst City Council on 8 January 1998 about this proposed development and the lack of detailed information available on issues which involve the EPA. Because of recent media interest in the proposed rail/road terminal, the EPA has had to answer inquiries from the public concerned about the environmental impacts of the proposal.
The EPA also advised Council that the proposed development would be a scheduled premises under the Noise Control Act and that the EPA would be responsible for ensuring that noise from the operation is controlled. Accordingly, should Council grant development consent then the proponent would require a Pollution Control Approval from the EPA.
I must remind Council that the responsibility for controlling any noise impacts from the operation, should it become established, may not always rest with the EPA. Currently the container terminal is a scheduled premises. However, this designation may change with the yet to be announced Protection of the Environment Operations Regulations, in which case the responsibility to control noise will revert to with [sic] Bathurst City Council.
Regardless of any future changes in legislative responsibility, it is imperative that the EPA be provided any [sic] noise reports about the proposed terminal, so that we may submit our comments to Council for consideration in the consent process.
The EPA considers that several aspects of the development are relevant to the environmental legislation which it administers. As such the EPA wishes to make a meaningful contribution to the planning process by providing Bathurst Council with advice on matters of environmental protection.
Therefore it is essential that Council, before determining development consent, seek the EPA’s views on matters of environmental protection, such as potential air, water and noise pollution and the handling of wastes (including sewage) from the proposed operation.
I trust that Council will provide the EPA with the necessary documents provided by the proponent in support of the development and take our comments into consideration.
Should you wish to discuss this matter further I can be contacted at the EPA’s Bathurst regional office on 63 321 838.”
The Council’s reply dated 19 February 1998 read -
“I refer to your letter dated 16 February 1998.
You should be aware that Council’s consideration of this Development Application must be in accordance with the legislative requirements of the Environmental Planning and Assessment Act 1979, and, in particular, Section 90 of the Act.
Council has a statutory responsibility to determine applications within 40 days of their being lodged.
Additionally, under Section 90, Council has to consider a whole range of matters, not just matters in which the EPA may have an interest.
Obviously Council will be dealing with the Development Application in the correct legal manner. It also will be taking into account its other responsibilities to the community of Bathurst, in terms of job creation and economic development - matters which the EPA (probably fortunately) does not need to consider.
Council also is aware that the development, should it proceed, will be a scheduled premises under the Noise Control Act 1975.
Council’s practice in these matters always has been that, where it intends to approve of such an application, it imposes a condition requiring the applicant to obtain the necessary licences/approvals from the EPA.
Council is not an agent for the EPA and intends to continue its current practice, until any legislative amendments require a change.
Should the Council resolve to approve this particular Development Application, and subsequently the EPA refuses to issue a required approval, then it will be up to the EPA to justify its position, both to the public, the Council and the applicant. It would be entirely inappropriate for this Council to act as your agent in this matter.”
Terra Sciences had still not provided its report to the Council, it seems at least in part because it had not received from SCT a noise assessment commissioned by SCT. The noise assessment, a joint report of Herring Storer Acoustics and Dick Benbow & Associates Pty Ltd dated February 1998 (“the Herring/Benbow noise assessment”), was received by it in the latter part of February 1998.
The executive summary in the Herring/Benbow noise assessment read -
“The proposed rail intermodal facility would be located in the industrial area adjacent to the main western railway line and opposite residences in Lee Street and White Rock Road at Kelso in the City of Bathurst, NSW.
A noise impact assessment has been conducted following EPA noise control guidelines to determine the potential noise impact from the operations of the proposed terminal.
Existing background noise levels have been measured over a seven day period at three residences near to the site to determine the acoustic design objectives for the proposed terminal. EPA noise control guidelines outlined in the Environmental Noise Control Manual have been applied to the proposed terminal. These guidelines expressed as acoustic criteria are detailed in the body of the report. The purpose of the acoustic criteria is to prevent an undue increase in noise that would exceed the acoustic criteria and cause annoyance or an unacceptable impact on the acoustic amenity of the nearest residences.
The preferred site layouts, building design and operations are then examined and the likely noise emission level for daytime and night time are calculated. The predicted noise levels are determined by measuring noise source levels at other similar operations. These levels are used to derive the sound power levels of the equipment and operations that are used in the noise prediction model.
The acoustic model is then used to predict the noise levels at the residents [sic]. The ENM model was used to prepare sets of noise contour diagrams that show the equivalent of the average maximum noise levels, the LA10 noise levels, that would be generated by the proposed terminal throughout the residential area adjoining the industrial estate.
When the predicted noise levels exceed the acoustic design objectives, further installation of control measures, re-layout of the site or reduced operations in a specific area of the site are then considered so that the predicted noise levels would satisfy the EPA acoustic criteria.
This process of refinement of the design of the proposed terminal has been completed by Herring Store Acoustics who have extensive practical and detailed acoustic design knowledge of rail intermodal facilities.
The findings of this report are that the noise emissions from the activities of the proposed facility could satisfy reasonable daytime and night time noise levels.
During periods of adverse weather conditions, which could potentially cause an increase in noise levels, the noise control designs would limit the increase at the nearest residence to 2-3 dB(A). The combined noise levels from the site during these adverse weather conditions would not be excessive and would not cause disturbance or annoyance.
The acoustic design of the proposed facility has included an extensive set of noise controls to protect the acoustic amenity of nearest residences. A pollution control application to the EPA would be required. It is recommended that a noise compliance study be undertaken on completion of commissioning of the facility.”

The Herring/Benbow noise assessment was over 100 pages, with detailed modelling on alternative “scenarios” using different levels of plant and equipment and different noise control measures. On 25 February 1998 some amended pages for the results of the noise modelling were provided. They indicated that for some of the points chosen as nearby residences and in some circumstances the acoustic design objectives would be exceeded, but it was said that the audible noise would not be “disturbing”.
Terra Sciences sent the Herring/Benbow noise assessment to the EPA. The EPA was unimpressed. By a letter dated 26 February 1998 to Terra Sciences it said -
“I refer to your recent discussions with Mark Clyne of the Bathurst Office of the Environment Protection Authority (EPA), in relation to the noise impact assessment of the proposed Rail Intermodal Facility at Kelso. I also refer to your request for the EPA to conduct a review of the noise assessment document.
Given the time provided (less than 2 days) by Terra Sciences a full assessment of the noise report was not possible.
A preliminary assessment was carried out and it appears that the document is unsatisfactory in addressing the control of noise from the site. In particular there is concern with the design criteria and calculations presented in the report. In addition there are concerns with issues of intermittent noise sources, such as sirens, which have not been adequately addressed.
For a full assessment, the report needs to be reviewed by the EPA’s specialist Noise Branch before any final comment can be made on the suitability of the document in identifying and dealing with noise impacts from the proposed development.”
On 26 or 27 February 1998 Terra Sciences provided its report to the Council (“the Terra Sciences report”). The Terra Sciences report was 33 pages, with some 50 pages of appendices. The content of the Herring/Benbow noise assessment was taken up in the Terra Sciences report, see below, but the Herring/Benbow noise assessment was not provided to the Council. The EPA letter of 26 February 1998 was referred to in the Terra Sciences report, and was Appendix 4 to it.
When addressing the impact of the development on the environment the Terra Sciences report referred to noise, dust, water quality and lighting. Noise was referred to first, and was clearly enough foremost amongst the matters impacting on the environment. As to each of dust, water quality and lighting potential impacts were identified and measures were enumerated by which the potential impact might be reduced; as to each of these, the Terra Sciences report recommended that the enumerated ‘safeguards’ or ‘requirements’ should be included in the conditions of consent. When addressing other impacts of the development, for example impacts on visual amenity and parking and access, it was also said that the suggested measures should be included as conditions of consent to the application. But this course was not taken in relation to noise.
Specifically in relation to noise the Terra Sciences report began -
“The conclusion drawn in the Noise Impact Statement (Dick Benbow & Associates, February 1998) is that emissions from the activities of the facilities could satisfy reasonable daytime and night time noise levels.
This conclusion is based on reference to noise design objectives for the closest three residential receptors in accordance with the Environment Protection Authority’s planning criteria, background noise monitoring and modelling of likely impacts.”
There followed what amounted to a summary of the noise design objectives, the modelling, and the predicted noise levels taken from the Herring/Benbow noise assessment, including that where the acoustic design objectives would be exceeded the “specialist noise consultant” had concluded that the audible noise would not be disturbing.
The Terra Sciences report then read -
“Generally the Noise Impact Statement concludes that subject to the inclusion of specified noise control measures within the design of the facility, noise impacts associated with the facility’s operations would not be significant or intrusive.
The Noise Impact Statement was referred to the Bathurst Regional Office of the EPA for comment. Their response forms Appendix 4, and is summarised as follows:
·              following a preliminary assessment it is their opinion that the
  document is unsatisfactory in addressing the control of noise from the   site;
·              concern expressed regarding the design criteria and calculations;
·              concern expressed regarding intermittent noise sources (eg sirens);
  and
·              it will be necessary for the report to be reviewed by the EPA’s
  specialist Noise Branch before any final comment can be made.
Contact was made with the specialist noise consultant who indicates that the findings of his report are sound due to:
·              adoption of a conservative approach;
·              the use of real data (ie acoustic tests carried out at SCT’s operations in
  Western Australia); and
·              the noise design objectives were based on the EPA’s planning criteria.
The specialist noise consultant indicated that he is prepared to defend the findings of the Noise Impact Assessment as required.
Noise is considered to be the critical issue that must be addressed in this development. Given that the proposal is defined as Scheduled Premises under the Noise Control Act, it will not be permitted to commence until EPA approval is obtained.
Should Council be of a mind to approve the development application, it is recommended that a deferred commencement condition via the provisions of Section 91AA of the EPA Act, 1979 be imposed, stating that the consent cannot commence until the EPA Approvals under the Noise Control Act, 1975 are obtained by the applicant.”
By contrast with the impact on the environment of dust, water quality and lighting, and with other impacts of the development, no “safeguards” or “requirements” were recommended for inclusion in the conditions of consent. Instead, the deferred commencement condition was recommended, with the consequence that the critical noise impact of the development would be regulated by what was described as EPA approval under the Noise Control Act 1975.
After dealing with other matters, the Terra Sciences report ended -
“CONCLUSION
This assessment has identified that the use of the site for the purposes of an intermodal freight facility is suitable for approval subject to the strict implementation of all of the safeguards and mitigative measures suggested in this report.
RECOMMENDATIONS
Following due consideration of all ‘matters for consideration’ under Section 90 of the Environmental Planning and Assessment Act 1979, Terra Sciences Pty Ltd is of the opinion that there are no environmental or planning reasons which prevent the development of an intermodal freight terminal on the subject site. It is therefore recommended that the application be approved subject to the imposition of conditions Council considers appropriate and particularly including conditions which address the issues raised in this report.”
The Council’s determination of the development application
The Director prepared a report for the Council dated 27 February 1998. It attached the Terra Sciences report, but not the Herring/Benbow noise assessment. The Director said -
“It is evident from the content of the report that those matters requiring consideration under Section 90 ‘Matters for Consideration’ of the Environmental Planning and Assessment Act 1979, have received careful attention from the consultant.
The report has shown that those areas of greatest concern to a minority of nearby residents (White Rock rural residential area), can be addressed by the imposition of appropriate conditions of development consent. One area of concern is the potential for the development to generate excessive noise. In order for the Consultant to properly assess this issue, it was necessary for the applicant to have an acoustical report prepared. This report was prepared by a qualified acoustical engineer and shows that the terminal, at full operating capacity, will comply with the requirements of the Noise Control Act 1975.
A letter from the Environment Protection Authority (EPA), requires comment (refer to appendix 4 of the Consultant’s report). In respect of noise emanating from the site, the acoustical engineer has advised Council’s consultant that the acoustical report is correct and will withstand any degree of scrutiny.
Notwithstanding the fact that there is a slight difference of opinion in respect of noise standards, the Consultant has given it careful consideration in the merit section (refer to section 90(1)(b) of the Environmental Planning and Assessment Act 1979).
Additionally, the proposed terminal is a scheduled premises under the Noise Control Act and will therefore require EPA approval before commencing operations. Council would impose a condition requiring this approval to be sought. It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA would issue its approval.
It is not a matter which Council needs to be overly concerned with at this time as the consultants [sic] report adequately addresses the issue.
…
It is strongly recommended that Council adopt the recommendation of its Consultant so this important project for Bathurst and the region can proceed.”
The Council met on 4 March 1998. It resolved -
“… that, as Council is of the opinion that there are no environmental or planning reasons which prevent the development of the intermodal freight terminal on the subject site, Council direct the Director, Planning and Development, to approve DA980154, subject to conditions to be determined by him, and particularly including conditions which address the issues raised in the Consultants [sic] report, and further, that a condition of development approval be that the development be connected to Council’s sewer main, and that the General Manager report on the cost of such a condition, and how it can be funded.”
The development consent
The Council then issued to SCT, over the hand of its General Manager, notice that it had determined the development application by granting a deferred commencement consent to development of an intermodal transport terminal “subject to the following conditions and reasons”.
Two conditions were stated as conditions which must be satisfied before the consent could operate. They were -
“1.This consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained.
REASON: Because of representations to that effect made by that body. (Section 90(1)(n) of the Environmental Planning and Assessment Act, 1979, as amended.)
2.The applicant is to supply to Council a preliminary soil contamination report certifying that the land is suitable for the proposed use without further testing or treatment. In the event that further testing or treatment is required, indicating the need for site remediation, then a Remediation Action Plan is to be prepared and implemented subject to the satisfaction of Council and the Environment Protection Authority.”
A further 69 conditions were stated as conditions “which are to be satisfied after conditions 1 & 2 are satisfied”. They included conditions taking up the “safeguards” or “requirements” to which I have referred in the Terra Sciences report.
The only conditions in the 69 conditions with some bearing upon noise impact were -

(a)condition 31, in part requiring that materials and construction for the container storage area be chosen “so as to ensure mechanical interlocking of aggregate and to minimise noise and dust generation”;

(b)condition 51, that the landscape plan required pursuant to condition 50 to the satisfaction of the Parks Manager make provision inter alia for a 3 metre high landscaped mound along the southern and eastern boundaries of the site and planting of suitable trees and shrubs: the stated reason was “to ensure that the landscaping provided for the development helps to mitigate the visual and aural impact of the development in an effective way”;

(c) condition 59 calling for -
“Submission of an environmental management plan, for approval by the Director, Planning and Development, outlining site management practices to minimise impacts of the following: noise, dust, lighting and water quality.
Note: This plan is to be submitted within 3 months of operations commencing on the site.
REASON: To ensure that the impact of the site’s operations on the environment are minimised. (Section 90(1)(b) of the Environmental Planning and Assessment Act 1979, as amended)”;

(d)condition 65, that the southern doors to the warehouses were to be closed and “access to the area limited” during night-time operations: the stated reason was “to mitigate night time noise impacts”; and
(e)condition 66, requiring signage to reduce speeds; the stated reason was “to reduce the risk of noise and dust pollution”.

There were no conditions such as specifying maximum noise emissions or specifying the levels of plant and equipment to be operated or operated at different times, with a view to ensuring that noise emission from the activities of the terminal not only could satisfy reasonable daytime and night time noise levels (see the conclusion in the Herring/Benbow noise assessment) but did satisfy those levels. This may be further explained as follows.
The Terra Sciences report, based on the Herring/Benbow noise assessment, had predicted that for night time operations the acoustic design objectives would be satisfied at two of the chosen points but exceeded at a third by 2 dB(A), the increase being described as not disturbing. The modelling assumed a shunting train, with coupling connection noise, between warehouses 6 and 7; two small fork lifts within each of warehouses 6 and 7; one shunting siren within each of warehouses 6 and 7, at the northern entries; the southern door closed; and “access limited”. It was noted that “the movement of trucks and associated activities would be reduced”. The assumed level of plant and equipment for daytime operations was much greater, particularly with trucks entering the site, a truck in the container area, more small fork lifts, and trucks under the awnings adjacent to the warehouses. The predicted noise with the increased plant and equipment was also much greater.
Departure for night time operations from the assumed levels of plant and equipment, or the manner of operation inherent in the assumption, could bring increased noise; so could departure for day time operations. No conditions prevented departure, or noise emission greater than the predictions for that reason or from (for example) a particularly noisy fork lift. Condition 65 did require that doors be closed and access limited (whatever that meant), but that would not ensure appropriate noise emissions.
Save that the EPA thereafter issued “a pollution control approval” in respect of the development, the nature or terms of which were not made known, there was no evidence indicating satisfaction of condition 1 of the deferred commencement conditions.
The Council’s task
Under the Environmental Planning and Assessment Act 1979 (“the EPA Act”) as it then stood, in determining a development application the consent authority was required to take into consideration such of a number of specified matters as were of relevance to the development the subject of the application (s 90(1)). The development application was determined by the granting of consent to the application, either unconditionally or subject to conditions, or the refusing of consent to the application (s 91(1)).
A condition could be imposed inter alia if it related to any matter referred to in s 90(1) of relevance to the development the subject of the consent (s 91(3)). In some circumstances the condition could be that there be later satisfaction of the consent authority or a person specified by it, or by specifying an outcome or objective to be achieved -
“A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction of the consent authority or a person specified by the consent authority” (s 91(3A)).
“A consent may be granted subject to a condition expressed in a manner that identifies both of the following:
(a)one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b)clear criteria against which achievement of the outcome or objective must be assessed.
The condition must specify the means by which the outcome or objective may be achieved.” (s 91(3B)).
These conditions were distinct from conditions of a deferred commencement consent. Development consent could be granted “subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition” (s 91AA(1)). If the applicant then produced evidence to the consent authority sufficient to enable it to be satisfied as to the matter, the consent authority had to notify the applicant whether or not it was satisfied (s 91AA(5), (6)), and, if satisfied, of the date from which the consent operated (s 92(3)).
To return to the matters a consent authority was required to take into consideration, in this case the matters for the Council in s 90(1) of the EPA Act included the noise impact of the development: see paras (b) and possibly (h) and (o) of s 90(1) -
“(b)the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm”.
”(h)the relationship of that development to development on adjoining land or on other land in the locality”.
“(o) the existing and likely future amenity of the neighbourhood.”
But the Council was required to consider many other matters, of wide scope, including those in paras (d) and (r) of s 90(1) -
“(d)the social effect and the economic effect of that development in the locality”.
“(r) the public interest”.
The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration (Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5).
Importantly, however, in obedience to s 90(1) the Council could not confine its consideration to the impact of the development on the environment, but had to take into consideration all other relevant matters. The Council had to balance possibly competing interests, in circumstances such as those in the present case including the public and private interests in preventing harm to the environment and the public and private interests in permitting gainful use of the land.
The Court’s role

Mr Weal applied to the Land and Environment Court in Class 4 proceedings, relevantly to review the exercise by the Council of its function as a consent authority. Review is not appeal on the merits. Sufficiently for the present case, the Court was to enquire whether in making its determination the Council took into consideration all relevant matters and no irrelevant matters, and whether in weighing up all relevant matters the Council reached a Wednesbury reasonable decision (that is, a decision not so unreasonable that no reasonable person could have come to it, see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The Court would not substitute its determination for that of the Council. A determination successfully impugned would be set aside, and it would be for the Council to determine the development application afresh according to law. A court must proceed with caution when reviewing an administrative decision on the ground that the administrative body does not properly weigh up the relevant considerations, lest it exceed its supervisory role by reviewing the decision on its merits (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J).
Where there is no direct evidence of the consent authority’s consideration of the development application, it may not be easy for a person in the position of Mr Weal to establish that it failed to take into consideration a relevant matter or took into consideration an irrelevant matter. That will often be established only by inference, and the inference should be drawn only after anxious consideration by the court (Parramatta City Council v Hale at 345; Currey v Sutherland Shire Council at 373).
Discussion
There is no doubt that the noise impact of the development was a relevant matter for the Council’s consideration, and a significant one. The Council was well aware of its significance to the development application. The Council responded to its significance in part by conditions 31, 51, 59, 65 and 66 in the development consent, but principally by condition 1 of the deferred commencement conditions (“condition 1”). The conditions in the development consent played a minor part, as the presence of condition 1 itself showed. In the result, the noise impact of the development, including specification of any means of alleviating it, would be regulated by the EPA approval.
The noise impact of the development was not an aspect ancillary to its core purpose within s 91(3A) of the EPA Act, even if there had been a condition in the consent to the effect that the development was to be carried out to the satisfaction of the EPA. Nor was condition 1 a condition pursuant to s 91(3B). It was not suggested in the appeal that either s 91(3A) or s 91(3B) sustained what the Council did.
In my opinion, while the Council clearly enough adverted to the noise impact of the development, it should be found that it did not take it into consideration as required by s 90(1) of the EPA Act.
The Council was provided with the Terra Sciences report. Terra Sciences said that the Herring/Benbow noise assessment concluded that the noise impact would not be significant or intrusive (Terra Sciences’ words, but with details in the summary taken from the Herring/Benbow noise assessment). It also said that the EPA thought the Herring/Benbow assessment was unsatisfactory, albeit without time for a proper review, and the conflict was hardly removed by Herring/Benbow’s preparedness to defend its noise assessment.
Terra Sciences’ solution was to recommend a deferred commencement condition of obtaining EPA approval under the Noise Control Act. Its concluding opinion that there were no environmental or planning reasons which prevented the development on the site must have been qualified accordingly. Terra Sciences did not recommend conditions in the consent calculated to protect the environment from the noise impact or mitigate its effect. It described noise as the critical issue, and proposed dealing with noise by EPA approval, but it did not know what noise impact or what means of alleviating noise impact the EPA might come up with in the approval process.
The Director’s report of 27 February 1998 adopted the same solution. It began with a perhaps inaccurate summation of the Terra Sciences report. The Herring/Benbow noise assessment had not shown that the terminal would comply with the requirements of the Noise Control Act, nor had Herring/Benbow been as forthright as the words “will withstand any degree of scrutiny” suggest, and there was more than “a slight difference of opinion in respect of noise standards”; further, Terra Sciences’ “careful consideration” had not solved the differences of opinion, but had ended with leaving the problem to the EPA approval. This may not matter, since the Council had the Terra Sciences report. However, the Director told the Council that noise impact was “not a matter which Council needs to be overly concerned with at this time as the consultants [sic] report adequately addresses the issue”. The Terra Sciences report addressed the issue not by a process of reasoning to a likely noise impact, resolving the difference of opinion, and to means of alleviating the impact, but by leaving it to the EPA approval. The Council was being invited to do the same.
And the Council accepted the invitation. There was no evidence of the consideration of the development application by the Council, that is, the collegiate body, beyond the resolution of 4 March 1998. Although the resolution recorded the opinion that there were no environmental or planning reasons which prevented the development on the site, obviously taken from the Terra Sciences report, that opinion had to be qualified in the same way as Terra Sciences’ opinion. The Council’s reference to “conditions which address the issues raised in the Consultants [sic] report” must have been intended to take up the recommended deferred commencement condition of obtaining EPA approval.
With all due caution, in my view it should be inferred that the Council did not come to a view as to the noise impact of the development or means that might be employed to mitigate the noise impact. It was clear that there would be a noise impact, and that some means of controlling it was required. The Council had an unresolved conflict between Herring/Benbow and the EPA, and it was told that it need not be overly concerned with noise impact because it could leave its extent and how to control it to the EPA: see in particular the Director’s statement, “It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA would issue its approval”. It did so. It did not give the development application the consideration required by law, but left the critical matter of noise impact to the EPA: cf King v Great Lakes Shire Council at 384-5; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 at 89; Leichhardt Municipal Council v The Minister (1992) 77 LGRA 64 at 75-6.
The facility of a deferred commencement consent, introduced into the EPA Act in 1993 in s 91AA and taken up by the Council, does not overcome the inference.
In Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported) Talbot J observed that s 91AA was not intended to allow the consent authority to leave unresolved and for future determination issues, known and unknown, in respect of the impact of the development. In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 309 Bignold J felt unable to embrace this, and regarded s 91AA as capable of yielding an “in principle” consent so that matters such as ultimate or detailed design could be reserved: his Honour thought that what could be the subject of deferred commencement conditions should be developed on a case by case basis. In Cameron v Nambucca Shire Council (1997) 95 LGERA 268, delivered on the same day as Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council, the consent authority had granted a deferred commencement consent conditioned upon a satisfactory traffic impact study. In holding that the consent authority had not taken traffic into consideration as required by s 90(1)(j) of the EPA Act Talbot J gave effect to what he had said in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2), although without referring to it, saying (at 275-6) -
“The deferring of consideration of a matter which a consent authority is required to consider pursuant to s 90 of the Act is not something which is authorised by s 91AA.
Section 91AA contemplates that some act must be performed before the consent operates. Specific works may be required as a prerequisite to the commencement of development. Those works may be on or off the site and either carried out by the applicant for development consent or a third party. The consent authority may require concurrence or confirmation from another authority or person, with the appropriate expertise or power, that the council’s assessment of a particular aspect of the development is the correct one. Section 91AA is not, in my opinion, a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91. A condition that the consent is not to operate until the consent authority is satisfied as to any matter does not mean that the consent is not a final one. A deferred commencement consent is a final consent when it is granted, even though the date from which the consent operates must not be endorsed on a notice, as required by s 92(3)(a), until the applicant satisfies the consent authority as to the matters specified in the condition.”
I respectfully agree with Talbot J that s 91AA did not free the consent authority from the obligation to consider all relevant matters as required by s 90(1). Section 91AA enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration. The vice in the present case is that, for the reasons I have given, I do not think that there was the proper consideration.
Some aspects of the development might have been left for later resolution, consistently with consideration in accordance with s 90(1) of the EPA Act. The landscape plan to which condition 51 referred is an illustration, and such a condition is authorised by s 91(3A) and possibly apart from that provision (see Scott v Wollongong Shire Council (1992) 75 LGRA 112 at 117-8; Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 628-30). But the Council’s immediate and own consideration of the noise impact of the development, including the means of controlling it, was important. The Council had to weigh up all relevant matters calling for consideration and, having done so, determine the development application. Unlike the EPA, its concerns went well beyond protection of the environment, for example to the matters in paras (d) and (r) of s 90(1) - as the letter of 19 February 1998 to the EPA pointed out. How could it exercise its function without such consideration of the critical issue of noise as would permit it to balance the noise impact, as controlled, with all other relevant matters? If it left noise impact to the EPA approval process, it did not know what to put in the scales.
There would have been nothing wrong, in an appropriate case, in a consent authority including as a condition of a consent that the applicant obtain (in the words of the Council’s letter of 19 February 1998, describing its practice) “the necessary licences/approvals from the EPA”. But that could only have followed consideration, in accordance with s 90(1), of the matter to which the licence or approval related, with the obtaining of the licence or approval where noise impact was in question a reasoned means of controlling, or contributing to controlling, reasoned understanding of the noise impact. And the condition could, depending on the circumstances as a whole, suggest that the consent authority had failed to discharge its duty under s 90(1), see Jungar Holdings Pty Ltd v Eurobodalla Shire Council.
It may be noted that the Council did not include in the consent a condition that the applicant comply with the EPA approval. By following the deferred commencement consent route, the Council granted a consent which would operate upon the approval being obtained (since the Council’s satisfaction could only be as to obtaining, not as to content). The consent would continue to operate whether or not the approval was later modified, whether or not the operator of the terminal failed to renew it, and whether or not the operator of the terminal failed to comply with the requirements of the approval. This adds, in my view, to the inference that the Council did not give proper consideration to the noise impact of the development.
This led to an issue in the appeal which should be recorded, although I do not think it necessary to resolve it.
Under the Noise Control Act as it stood in 1998 the occupier of any scheduled premises had to obtain, under pain of committing an offence against the Environmental Offences and Penalties Act 1989, a licence under the Pollution Control Act 1970. It was common ground that the terminal would be scheduled premises (see s 18(1) of the Noise Control Act). The EPA was the licensing authority under the Pollution Control Act. By s 17D(1)(a) of that Act, it could grant the licence either subject to conditions or unconditionally. By s 17B(2), in exercising its functions under s 17D the EPA was obliged to take into consideration the whole of the pollution of all kinds caused or likely to be caused by the activity conducted or to be conducted by the applicant, the impact of that pollution on the environment, and the practical measures that might be taken to prevent, control, abate or mitigate that pollution and to protect the environment from its consequences. By s 17E, the licence remained in force for one year, and application could be made for renewed licences for successive yearly periods.

100 However, on 17 December 1997 the Royal assent had been given to the Protection of the Environment Operations Act 1997. It was to commence on proclamation, and had not been proclaimed when the Council granted the consent. On commencement it would repeal the Noise Control Act and the Pollution Control Act (see s 324 and schedule 3). It made alternative provision for the protection of the environment, amongst other things by prevention of pollution, but under its provisions the EPA would no longer be the licensing authority in relation to the emission of noise from the terminal. The regulatory authority in relation to noise control, in the absence of a regulation otherwise providing, would be the local authority, in the present case the Council, and it would act not by licensing in which conditions could be imposed but by noise control notices the contravention of which would be an offence. That was why the EPA said in its letter of 17 February 1998 that “the responsibility for controlling any noise impacts from the operation … may not always rest with the EPA”.

101 The consent granted by the Council was valid for five years. So, it was said, by following the deferred development consent route the Council had granted a consent which, if EPA approval fell away with the changes in the legislation, would operate without any control over the noise impact at all. Condition 1 referred to “relevant approvals by the EPA”. The Council was aware of the changes in the legislation, they were likely to become effective within the five years, and it should not have followed the deferred development consent route because with the changes in the legislation there might no longer be relevant approvals by the EPA.

102 Questions of the operation of the consent and the old and new legislation arose. On one view, if EPA approval was not obtained the consent would never become operative. This issue went more to Wednesbury unreasonableness than to proper consideration of the development application. Wednesbury unreasonableness need not be addressed. The appeal should be upheld on the ground that the Council failed properly to take into consideration the noise impact of the development.

Further evidence?

103 After judgment was reserved in the appeal the Council applied for leave to adduce fresh evidence on the appeal. The evidence was that on 22 March 1999 the Council issued to SCT, again over the hand of its General Manager, notice of modification of the consent by the addition of a number of conditions including, as condition 72, that the developer was to “actively manage the development to minimise nuisance caused by noise” and in that regard meet specified requirements. The principal requirements were as to maximum noise levels in dB(A) at particular locations for day and night-time operations, restriction on the hours of container stacking, construction of noise barriers and confinement of loading and unloading operations behind the barriers, creation of a noise management plan and a reactive noise management plan with certain criteria, and the conduct of operations “in a manner and location as prescribed in the Revised Noise Assessment (Dick Benbow and Associates, December 1998)”.

104 This was not fresh evidence. It emerged that the Council had raised the modification with Mr Weal prior to the hearing before Bignold J, that Mr Weal had expressed apprehension that introduction of the modification into the hearing would mean an adjournment, and that the Council had decided “not to run that risk and to run the proceedings without tendering the modification”. For the purposes of the application on appeal the Council’s position was that the modification relevantly cured any failure of consideration at the time of the original consent because s 96(4) of the Act provided that a reference to a consent in the Act was a reference to the consent as modified; it suggested that the reasoning of Lloyd J in MLC Properties v Camden Council (1997) 96 LGERA 52 at 59 supported this view. Mr Weal’s position was that there was no curative effect, and that in any event that the modification itself was open to challenge. I would infer that these positions were conveyed between the parties prior to the hearing before Bignold J.

105 Not surprisingly, Mr Weal opposed the application because the Council had made a deliberate decision not to rely on the modification before Bignold J and further because both the validity of the modification and whether it had a curative effect required evidence and a contested hearing.

106 This was and is not a satisfactory situation. Unknown to Bignold J, the parties permitted him to engage in an incomplete exercise. Any decision in this appeal might be of a moot point. I was at one time attracted to receiving the further evidence and determining in the appeal, with further submissions from the parties, the curative effect of the modification if valid. I have concluded that this could not properly be done, and that it should not be done on an assumption of validity. The application should be refused and the appeal should be disposed of in accordance with these reasons, and the parties should be left to litigate further as they may be advised.

Orders

107 We were informed that SCT has not developed the land. A declaration that the consent was void will no doubt be sufficient, without injunctive relief; if consequential relief is required, application can be made in the Land and Environment Court.

108 I propose the following orders -

(1)Dismiss the first respondent’s application to adduce fresh evidence on the appeal.

(2) Appeal allowed.
(3)Set aside the orders made by Bignold J dismissing the application and as to costs.
(4)Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect.
(5)Order the respondents to pay the appellant’s costs of the proceedings before Bignold J and of the appeal.

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LAST UPDATED: 24/11/2000