Westfield Limited v Parramatta City Council

[1999] NSWLEC 17

Land and Environment Court

of New South Wales

CITATION:

Westfield Limited -V- Parramatta City Council [1999] NSWLEC 17

PARTIES

Appellant
Westfield Limited

Respondent
Parramatta City Council

NUMBER:

10813 of 1997

CORAM:

Talbot, J

KEY ISSUES:

:- no error of law

LEGISLATION CITED:

no error of law

DATES OF HEARING:

02/05/1999

DATE OF JUDGMENT DELIVERY:

02/12/1999

LEGAL REPRESENTATIVES:

Appellant
Mr P D McClellan QC
With
Ms S A Duggan (Barrister)

Instructed by
Mallesons Stephen Jaques

Respondent
Mr P C Tomasetti (Barrister)

Instructed by
Storey & Gough

JUDGMENT:

IN THE LAND AND MATTER No. 10813 of 1997
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 12 February 1999

WESTFIELD LIMITED
Appellant


v

PARRAMATTA CITY COUNCIL
Respondent

REASONS FOR JUDGMENT


1. In a reserved judgment delivered 6 November 1998 following a five day hearing in July and October last year, Assessor Hussey (as he then was) dismissed an appeal by the appellant against the refusal of development consent to use the loading docks at the Westfield shopping centre Parramatta during additional hours to those authorised by existing approvals.

2. The primary issue argued before the Assessor was in respect of the alleged noise impact of the additional use on the amenity of the occupants of medium density residential buildings on the opposite side of Campbell Street, Parramatta. Campbell Street itself constitutes the interface between a commercial and residential zone.

3. The appellant raises seven separate grounds of appeal. One is not pursued.

4. The remaining six relate to the same primary question of whether the Assessor erred in law by dismissing the appeal in circumstances where he accepted that the impacts associated with the proposed extension would be “probably indiscernible” but concluded that the applicant ought first to take steps to mitigate the existing acoustical environment.

5. In other words, according to Mr McClellan QC, the Assessor asked himself the wrong question rather than confining himself to a consideration of the impact of the proposed development, namely the use of the loading docks for extended hours.

6. It is important to note that the development application relates only to the operation of the docks during the extended hours as a separate development. It was not an application to modify an existing consent.

7. The root of the argument propounded by the appellant can be found by analogy in the analysis by the Court of Appeal reflected in the judgments of Clarke and Cole JJA in Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68. In that case it was held that it was not part of the function of the consent authority to seek to resolve conflicts created by existing development where the latter is being carried on in accordance with the law. Pursuant to s 90 the authority, and the Court, is required to direct its attention to the proposed development against the circumstances of existing legal and permitted uses on other land (see Clarke JA at 70-71 and Cole JA at 76).

8. It is not for the Court to second guess what the outcome might have been if the Assessor had addressed the correct question at first instance. If an error of law is found, then the appropriate course is refer the matter back to the Assessor to exercise his discretion in accordance with the law.

The Assessor’s judgment

9. At the outset Assessor Hussey identified the principal issue in the matter as the impact on the neighbouring residential area, in terms of noise and traffic.

10. Expert evidence in respect of the noise issue was presented by Dr R Tonin on behalf of the council and Mr B Murray on behalf of the applicant. A number of residents also gave evidence about the impact of noise from the present development on their residential amenity. The Assessor observed that the residents generally expressed concern about the noise from delivery trucks which arrive out of approved hours.

11. The Assessor noted that both Mr Murray and Dr Tonin undertook field assessments of the existing background noise levels in order that projections could be made of the increased level of noise.

12. Mr Murray determined the existing LAeq 1hr noise level contribution for dock vehicles as ranging between 61.0 dBA and 69.5 dBA.

13. He also referred to Mr Murray’s opinion that the most relevant traffic noise criteria was contained in the Environmental Planning Authority’s Road Traffic Noise Policy (Draft Environmental Criteria for Road Traffic Noise) (ECRTN) Development Type 11 - New land use development with potential to create additional traffic on local roads. The criteria set by the ECRTN for Development Type 11 is LAeq 1hr 55 in the day time and LAeq 1 hr 50 for the night.

14. The ECRTN has also set the following requirements where the criteria is already exceeded:-

Where Criteria Already Exceeded
Where feasible, existing noise levels should be mitigated to meet the noise criteria. Examples of applicable strategies include location of private access roads, times, clustering usage, quiet vehicles, barriers and acoustic treatments.

In all cases, traffic arising from the development should not lead to an increase in existing noise levels by more than 2dB.

15. A p 8 of his judgment Assessor Hussey noted that Dr Tonin took exception to the application of Development Type 11 because this was not a new development. However, if this criteria for new development was to be applied, then Dr Tonin thought that there should be some consideration given to the feasibility of effective mitigation measures because of the existing exceedence. Dr Tonin referred to the Environment Planning Authority Draft Stationary Noise Source Policy (Draft SNSP) which recommended maximum LAeq noise levels of 60 dB(A) during the day, 50 in the evening and 45 at night.

16. Assessor Hussey observed that in rejecting Mr Murray’s proposition that the existing noise levels be adopted, plus 2 dBA; Dr Tonin referred to the following components of the Environment Planning Authority Noise Control Management regarding background creep:-

Protecting Background Creep - Table 20-1 EPA Environmental Noise Control Manual

“[Where the] Background is above relevant acceptable level - preferably set maximum planning level 10dB(A) or more below acceptable level or at least, set maximum planning level 10dB(A) below existing background level.”

17. The Assessor recognised difficulties in establishing the appropriate level of acceptable noise exceedence criteria as demonstrated by the opposing positions of Mr Murray and Dr Tonin when he said at p 11:-

Whilst there can be obvious argument about the applicability of the Draft Environment Criterion for Road Traffic Noise in terms of the criterion for new development, it does seem to me that this is the most suitable appropriate criteria in the guide. In a sense the application represents a change in the operating hours and could be regarded as a new development in that case.

Consequently, I consider that the criteria for maximum desirable nose (sic) levels of

LAeq (Day) of 55dBA and
LAeq (Night) of 50dBA are useful benchmarks.

The correlation of this criteria then to the Draft SNSP shows that the maximum LAeq noise levels from stationary sources is for

Day - 60 dBA
Evening - 50 dBA
Night - 45 dBA

As the experts, agreed that the existing evening noise levels were in the range of 61-69.5 dBA, this clearly exceeds the goal of 50 dBA and confirms the neighbours objections.

18. Mr McCellan’s complaint is that having recognised Mr Murray’s approach to the ECRTN in terms of the criterion for new development as the most suitable appropriate criteria in the guide, the Assessor went on to say that the ECRTN allowance of 2 dBA above background level is an unreasonable approach.

19. Dr Tonin argued against ever continuously creeping ambient. The Assessor expressly recognised the merit of Dr Tonin’s argument in balancing the various components of the public interest comprising the increased shopping convenience versus amenity impacts on the neighbourhood.

20. The Assessor said that he considered initially more weight should be on the initial requirement for Development Type 11 where the criteria is already exceeded, namely that “(w)here feasible existing noise levels should be mitigated to meet the noise criteria”.

21. He then concluded:-

It seems to me that serious consideration is required to assess feasibility of achieving some degree of noise reduction, rather than simply adopting existing background noise levels and allowing up to 2 dBA increase, as advocated by Mr Murray. If such noise reductions are found to be not feasible, then I think there is a reasonable case to adopt the position of Dr Tonin that the appropriate limit to reasonably preserve residential amenity is an increase of “existing and 0 dBA”. Apparently this can be achieved if the contributing LAeq (1hr) noise level from the new activity is at least 10 dBA below the existing LAeq (1hr) ambient in any hour of operation.

My assessment of the evidence is that there has been inadequate investigation and consideration to the available measures to mitigate the existing noise levels which clearly exceed acceptable criteria. Therefore, it is not reasonable to adopt the noise creep concept of accepting background noise levels and allowing a further deterioration of up to 2 dBa because this is probably indiscernible. In my view there has been inadequate consideration of the amenity impacts of this proposal to extend the operating hours into the evening hours until 10 pm and also on the weekends when some of the residents expect some relief from the normal weekly level of activity.

The alleged error

22. The appellant’s argument is that having embraced the ECRTN criteria and after accepting that the noise levels would not increase by more than 2 dBA, which Mr Murray said would be indiscernible, it was not open to the Assessor to find that the approach by Mr Murray was unreasonable. Whereas on the one hand he accepted the approach by Mr Murray and then adopted the conclusion reached by Dr Tonin. In circumstances where any increase in noise level would be indiscernible, the decision that there has been inadequate investigation and consideration to the available measures to mitigate existing noise levels demonstrates that the Assessor was addressing the prospect of relief from an existing problem rather than considering the potential adverse impact on the amenity of the neighbourhood from the proposed development.

23. The contention is that if the Assessor had approached his task in a proper manner, he would have confined his consideration to the impact of the new development and would not have brought to account the existing problems and seek to remedy the latter.

24. The response by Mr Tomasetti on behalf of the council is that the opinion expressed by the Assessor, namely that the approach of allowing an increase of 2 dBA above the existing background level notwithstanding it would be indiscernible is an unreasonable approach, is merely a finding of fact based upon the Assessor’s assessment of the evidence. This finding of fact, according to Mr Tomasetti, was open to the Assessor, particularly having regard to the evidence of the neighbours who described existing problems arising from the use of the loading docks. The Assessor thereafter determined that any increase in activity should not increase background levels above existing and that, according to his understanding, this could be achieved only if the contributing LAeq (1hr) noise level from the new activity is at least 10 dBA below the existing LAeq (1hr) ambient in any hour of operation.

25. The council says that Mr McClellan goes too far when he asserts that the Assessor adopted the whole of the criteria in the ECRTN. Rather what the Assessor was saying is that although it was stated in terms of the criterion for new development, nevertheless it was “the most suitable appropriate criteria in the guide”. It does not follow therefore that he was obliged to follow it in all respects. Ultimately, according to the council, the issue addressed by the Assessor was the effect of noise creep and in that respect he preferred the conclusion reached by Dr Tonin.

Was there an error of law?

26. It is not appropriate for the Court to adopt a fine toothcomb approach to the reasons given by an Assessor when entertaining an appeal pursuant to s 56A of the Land and Environment Court Act.

27. Noise creep may well be an appropriate issue for consideration. The Assessor does not appear to have been able to reach his final conclusion in that respect. His reference to the feasibility of achieving some degree of noise reduction is merely an observation that before he would be prepared to contemplate an increase of noise, even below 2 dBA, the prospect of implementing other ameliorative measures should be investigated and this had not been done.

28. He sums up as follows:-

Accordingly I do not consider this application merits approval because the projected increasing noise levels will have adverse impacts on the amenity of the neighbourhood and there has been insufficient measures addressed to mitigate that harm.

29. It was not contended by either side that the increase in the actual noise levels would have any direct impact.

30. Dr Tonin’s evidence was not directed at the discernible effect of the actual increase. There is nothing in the Assessor’s reasons which suggest that Dr Tonin did not agree with Mr Murray’s assertion that the existing background level plus 2 dBA would be indiscernible at the existing levels. Therefore it is a simple step in logic to conclude that the Assessor adopted Dr Tonin’s approach in another respect. The thrust of Dr Tonin’s evidence was that there should be some consideration given to the feasibility of effective mitigation measure because of the existing exceedence. Thus in the opinion of the Assessor there was a reasonable case to adopt the position of Dr Tonin that the appropriate limit to reasonably preserve residential amenity, while ever the existing background remained, is as he quoted “an increase of ‘existing and 0 dBA’”. Otherwise the adverse effect on the amenity of the neighbourhood would be the creeping effect of the increase in background level.

31. In his ultimate finding the Assessor did not fall into the error of suggesting that the existing background levels should be reduced. He merely reached the conclusion that in order to keep the noise at the existing levels, the new activity should be at least 10 dBA below the existing LAeq (1hr) ambient in any hour of operation. This opinion did not require any reduction or changes to existing development. It merely suggests that the proposed new development preferably should meet that criteria in circumstances where the existing background levels are to be maintained.

32. He did not see it as reasonable to adopt the concept of allowing a further deterioration of up to 2 dBA, notwithstanding it is probably indiscernible, while ever the existing noise levels remained and exceeded acceptable criteria. His observation that there had been inadequate investigation and consideration to the available measures to mitigate the existing noise levels was, in that context, no more than an aside.

33. The Court is not able to discern any error on the part of the Assessor by asking himself the wrong question or otherwise as contended by the appellant. Although it may have been preferable for the Assessor to expose his reasoning process in a more orderly fashion, that of itself is not sufficient to set aside his determination on the basis that there has been an error of law.

34. In order for the Court to reach its final conclusion it has not been necessary to have regard to an argument relied upon by Mr Tomasetti which was based upon an alleged implied power to consider existing development arising out of the wording of s 91(3)(c) of the EPA Act.

Order

35. The Court makes the following orders:-

1. The appeal is dismissed.

2. The exhibits may be returned.

I hereby certify that this and the preceding 9 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate