Benclutch Pty Limited v Liverpool City Council

[2012] NSWLEC 1284

Land and Environment Court

New South Wales

Medium Neutral Citation:

Benclutch Pty Limited v Liverpool City Council [2012] NSWLEC 1284

Hearing dates:

3, 4 October 2012 - Final Orders on 30 November 2012

Decision date:

15 October 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

1. The appeal is upheld.
2. The conditions of consent for the DFE development at 20 Scrivener Street, Warwick Farm are modified as shown in Attachment B.
3. The exhibits may be returned except for 1, 3, 5 and P. 

Catchwords:

DEVELOPMENT MODIFICATION - Extension of early morning operating hours for heavy vehicle access to industrial use, traffic safety, sleep disturbance

Legislation Cited:

Environmental Planning and Assessment Act 1979
Liverpool Local Environmental Plan 2008

Cases Cited:

Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133

Category:

Principal judgment

Parties:

Benclutch Pty Limited (Applicant)

Liverpool City Council (Respondent)

Representation:

Counsel
Ms S Duggan SC (Applicant)

Mr A Pickles (Bar) (Respondent)
Solicitors
Blackstone Waterhouse Lawyers (Applicant)

Sparke Helmore (Respondent)

File Number(s):

10022 of 2012

Judgment

Background

1. This appeal is against council's refusal of a s 96 application to modify the approved hours of operation for the Direct Freight Express (DFE) warehousing and distribution development located at 20 Scrivener Street, Warwick Farm. Whilst the subject property is situated within the Warwick Farm industrial area, all vehicular access is through the adjoining lowdensity residential area containing equine activities.

1. The development consent was granted on 13 August 2007 and included the following Condition 24:

HOURS OF OPERATION

24. The hours of operation must be limited to 6:00am until 9:30pm Monday to Friday.

1. In order to facilitate a more orderly receipt and distribution of goods at the warehouse, the applicant initially sort to extend the operating hours to a 24/7 basis. However after consideration of the issues raised by council, the modification now proposes the following traffic arrangements:

Table 1

WEEKDAYS
3.30am -6.00am	Semi Trailers & B Doubles	Maximum of 8 trucks arriving per weekday
Workforce Cars	42 cars arriving with the majority (30 cars) between 5am - 6am, and 8 cars departing the premises per weekday
9.30pm-10.30pm	Semi Trailers & B Doubles	Maximum of 4 trucks departing per weekday
Workforce Cars	2 cars departing the premises per weekday
SATURDAY
3.30am-6.00am	Semi Trailers & B Doubles	Maximum of 12 trucks arriving per Saturday, and 2 trucks departing the premises per Saturday.
7.00am - Midday	Workforce Cars	12 cars departing per Saturday.
Workforce Cars	6 cars arriving at the premises and 6 cars departing per Saturday.
SUNDAY
7.00am-9.00am	Semi Trailers & B Doubles	1 truck arriving at the premises per Sunday.
Workforce Cars	1 car departing the premises per Sunday.
4.00pm - 7.00pm	Semi Trailers & B Doubles	A maximum of 1 truck arriving at the premises and 3 trucks departing the premises per Sunday.
Workforce Cars	3 cars arriving and 2 cars departing the premises per Sunday.

1. Consequently the amended contentions concern:

I.   Potential traffic conflicts between heavy vehicles and equine activities in the extended, early morning period, and

II.   Acoustic issues concerning sleep disturbance arising from the early morning passage of heavy vehicles through the adjacent residential area.

The site

1. The subject site is described as Lot 201 in DP 801262. It is irregular in shape, with a combined street frontage to Scrivener Street of 269 m and an area of approximately 7.416 ha.

1. The site is located within the general Warwick Farm industrial area and is currently occupied by a warehouse and distribution centre. The site adjoins Rosedale Park to the north and various industrial uses to the south and west. Residential development exists to the north west of the site. To the east lies the Liverpool Sewerage Treatment Plant.

1. There is one route for vehicle access this industrial area, which is via Priddle Street, Manning Street, Munday Street and to a lesser extent Warwick Street. The area details are shown on the plan at Attachment 'A'.

Planning controls

1. The main control is the Liverpool LEP 2008, under which the site is zoned IN1 - General Industrial and the subject development is permissible according to the Part 2 provisions. Relevantly, the zone objectives include:

• To provide a wide range of industrial and warehouse uses.
• To encourage employment opportunities.
• To minimise any adverse effect of industry on other land uses.
• To support and protect industrial land for industrial purposes...

1. The adjoining zone containing the equine facilities is Zone R2 Low Density Residential, which has the following objectives:

• To provide for the housing needs of the community within a low-density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To provide a suitable low scale residential character commensurate with a low dwelling density.
• To ensure that a high level of residential amenity is achieved and maintained.

1. Clause 16 specifically applies to this low density zone as follows:

16 Use of certain land at Warwick Farm in Zone R2

(1) This clause applies to land in Zone R2 Low Density Residential, east of the southern rail line at Warwick Farm.

(2) Development for the following purposes is permitted with consent:

(a) animal boarding or training establishments,

(b) farm buildings,

(c) veterinary hospitals.

1. The associated development controls are contained within the Liverpool DCP 2008 (DCP). Part 7 deals with industrial development on the basis of the following relevant controls:

Amenity and Environmental Impact

Background

Industrial and related developments have potential to cause a significant environmental impact in terms of odours, noise and discharges. Some of these impacts are addressed by the Protection of the Environment Operations Act 2008. However the design and operation of development in industrial areas can contribute to avoiding these issues. The impacts may be on more sensitive land uses in nearby residential areas or on other uses within the industrial areas. As the range of uses permitted in the industrial areas is quite significant it is necessary to consider these impacts on land uses within the industrial zone.

Objectives

a)To ensure that neighbouring properties are not adversely affected from any operationon site.

b)To minimise the potential detrimental impact of pollution, dust, noise, odour and traffic.

Controls

...

Hours of operation

Development which would have an adverse impact on adjoining or nearby residential areas will be limited to 7 am to 6 pm Monday to Friday and 7 am to 12 pm on Saturday and no work to be undertaken on Sundays.

...

The evidence

1. Detailed evidence in response to the contentions was presented by:

• Mr C Wiafe;Council's traffic engineer
• Mr J Coady;Applicant's traffic engineer
• Mr S Cooper'Council's acoustic consultant
• Dr R Tonin;Applicant's acoustic consultant.

Traffic issues

1. The main traffic issue concerns the potential safety risks arising from truck movements in the extended early morning operating hours. This arises because the heavy vehicle route to the industrial area passes through the low-density residential area where there are a considerable number of horse training establishments (horse area). The horse training involves access to the nearby Warwick Farm racecourse via part of the transport route. However there is a tunnel located at Hope Street, which provides the main access under Governor Macquarie Drive into the racetrack.

1. The main safety risk concerns possible conflicts between handlers taking horses to the track when they use and cross the existing roads, particularly Manning Street, which would be subject to a redistribution of large vehicle movements from 3:30 am. However, the majority of land occupiers in this 'horse area' have alternative routes to and from the racecourse, thereby avoiding this risk.

1. With respect to the modified truck movements, Mr Coady says that this involves a redistribution of the existing truck movements by spreading them over a longer period so that the number of trucks generated in the extended early morning hours is relatively minor as shown in Table 1. He says this has benefits because it avoids congestion in the existing approved hours after 6:00 am.

B Double Route

1. Insofar as there was discussion about the route for the applicant's heavy vehicles, it is shown on Attachment A and it is a collector road and designated B-Double route. Following the discussion by the traffic experts about limitations on this designated route, its use appears to be unrestricted. The applicant applied for B-Double access in December 2006 and the RTA referred it to the council for consideration according to its letter marked as received on 20 February 2007.

1. Consequently, the B-Double route was approved on an unrestricted basis as shown in the B Double travel restrictions (Exhibit J). But having considered the contents of this exhibit, I note that there is a significant number of restrictions on other B-Double routes, including time restrictions as shown in the following examples:

B-DOUBLE TRAVEL RESTRICTIONS
No:	DESCRIPTION
B105	No travel permitted 6:00-10:00am and 3:00-7:00pm on Epping Railway Bridge.
B107	Access only from Hume Hwy. Deliveries where possible outside 8:00-9.30am and 2:30-4:00pm, Mon-Fri.
B109	No travel permitted 7:00-10:00am and 3:00-7:00pm on weekdays. Left turn only to and from Victoria Rd.
B111	No travel permitted 7:00-9:00am and 3:00-5:00pm on school days.
B112	No travel permitted 7:00-9:00am and 3:00-5:00pm on school days. Trailers must not be left more than 6 hours at the uncoupling area in the Public Reserve.
B113	No travel permitted 7:00-9:00am and 4:00-6:00pm.
B115	No travel permitted 7:30-8:30am and 3:30-5:00pm on school days.
B116	No travel permitted 7:30-8:30am and 4:00-5:00pm on school days.
B118	No travel permitted 7:30-9:00am and 3:00-4:30pm on school days.
B119	No travel permitted 7:30-9:00am and 3:00-5:00pm. A maximum speed limit of 80km/h applies.
B120	No travel permitted 7:30-9:00am and 3:30-5:00pm on school days.
B121	No access permitted during School Bus times. Maximum speed limit of 80km/h applies.

1. Accordingly, Mr Coady says that the route assessment process would have considered the existence and any constraints of the existing horse training area and as it did not include time restrictions, then the restrictive hours of operation contained within the DCP can reasonably be varied in the circumstances of this application.

1. Against this, Mr Wiafe says that the extended hours should not be allowed as they would be inconsistent with the zone objective "To minimise adverse effect of industry on other land uses". He says the potential conflicts are road safety concerns between horses and vehicular traffic in the early morning and also sleep disturbance impacts. He therefore considers that the extended hours should not be permitted so as to achieve the intent of the LEP and DCP objectives.

1. In response to these concerns both Mr Coady and Mr Wiafe undertook separate road use surveys to assess horse crossings and vehicle counts, which are compiled in Table 2:

TABLE 2

JC Survey		CW Report
Crossing Manning St	Approach/Depart Manning St
3-4am	4	4	0
4-5am	24	30	11
5-6am	26	39	44
6-7am	34	43	41

1. The associated horse crossing diagrams for Friday 6 July 2012 show that in the early morning period there is a concentration of horse crossings in Manning Street opposite National Street and a secondary crossing opposite the Southern Laneway as follows:

3 - 4am	4 - 5am	5 - 6am	6 - 7am
Eastbound	National Street	0	16	12	11
Southern Lane	4	5	5	1
Westbound	National Street	0	0	6	17
Southern Lane	0	3	3	5

1. From the surveys, Mr Coady says that the level of horse activity is relatively small in the Manning Street area during the early morning period. He therefore considers that this level of activity can be adequately and safely integrated with the relatively low level of redistributed large delivery vehicles movements by way of a Traffic Management Plan (TMP).

1. The proposed TMP is contained in Exhibit F and it is based on the fact that the proposed early morning deliveries will only be by DFE trucks with company drivers. Accordingly driver performance can be monitored and sanctions undertaken against drivers who disregard the TMP provisions. The TMP provisions include:

• All B-Doubles being confined to the approved B-Double route.
• All drivers being specially instructed on the presence of handlers/horses on the roads in the morning period from 3 am-1 pm. They must take due care to avoid conflict with the horses.
• All semi trailers and B-Doubles to travel at a maximum speed of 30 kph during the extended hours.
• No compression braking or air horns are to be used in this period.
• No parking of DFE vehicles is to take place on the streets, instead they must be able to enter the DFE site directly on arrival.
• A complaint procedure is to be implemented.

1. Notwithstanding the proposed TMP provisions, Mr Wiafe's maintained his concerns, which are in accord with the resident objections relating to the heavy vehicle movements and current speed profile. According to his traffic counts carried out in 2010 and 2012 in Manning Street, it has an 85th percentile speed of 60 kph (2010) and 55 kph (2012). Considering these existing speeds profiles, he is concerned about the enforceability of the reduced speeds for the DFE trucks.

1. However Mr Coady says that caution should be exercised in utilising these results because:

• The speed data is for all vehicles travelling along Manning Street on a 24/7 basis, which is not necessarily representative of the DFE vehicles in the extended period.
• Considering it is for all vehicles, it is unlikely to be representative of the DFE large vehicles, which are expected to travel more slowly than cars.

1. Consequently, I have considered these disparate traffic opinions in conjunction with the associated acoustic impact issue. The main concern in this regard being sleep disturbance impacts.

Sleep disturbance

1. In considering the sleep disturbance impacts, the experts initially disagreed on the appropriate evaluation criterion. Dr Tonin says that the applicable criterion arising from vehicular traffic is the EPA's Road Noise Policy (RNP), which came into effect on 1 July 2011. He says that under the RNP the access road to the site would be classified as sub-arterial.

1. Accordingly, the applicable assessment criteria for existing residences affected by additional traffic as stated in Table 3 in the RNP, is a level of 60 LAeq (15 hour) for 7 am-10 pm and a level of 55 LAeq (9hr) for 10 pm-7 am. These levels are measured outside a residential premise at 1 m from the facade and 1.5 m from the floor (including the upper level of a two storey residence).

1. Clause 3.4.1 states that where the existing traffic noise levels are above the assessment criteria then a range of feasible and reasonable mitigation measures should be considered. The RNP recommends that any increase in the total traffic noise level on existing roads generated by land use developments should be limited to 2 dB above that of the corresponding 'no build option'.

1. In respect of sleep disturbance, the RNP confirmed that while there is ongoing review of this issue, nevertheless the main noise characteristics that influence sleep disturbance are the number of noisy events heard distinctly above the background level, the emergence of these events and the highest noise level.

1. The RNP conclusion is that:

• Maximum internal noise levels below 50-55 dB (A) are unlikely to awaken people from sleep.
• One or two noise events per night with maximum internal noise levels of 65-70 dB (A), are not likely to affect health and wellbeing significantly.

1. Whilst acknowledging that there is insufficient evidence to set definitive indicators for potential sleep disturbance due to road traffic noise, the RNP refers to the NSW RTA Practice Note 3 of the Environmental Noise Management Manual (ENMM), which outlines a protocol for assessing and reporting on maximum noise levels and the potential for sleep disturbance.

1. However, the experts also disagree on the applicability of the Practice Note 3. Dr Tonin says that ENMM protocol should be followed where there is potential for sleep disturbance arising from increased traffic on public roads (i.e. irrespective of whether that increase in traffic arises from a new or redeveloped road or from traffic generated by land use developments).

1. Against this, Mr Cooper says that in the absence of any specific council policy or DCP in relation to traffic noise, reference could be made to the provisions of the EPA's Environmental Criteria for Road Traffic Noise (ECRTN) because it was referred to in the applicant's initial application.

1. According to Mr Cooper the ENMM has been used by the RTA for road developments and not assessment of industrial sites. It has been identified as having significant differences to the ECRTN with the RTA utilising a different traffic noise assessment procedure if the RTA was responsible for the noise controls to that if the developer was required to provide the noise controls. The concept of comparing Leq + 15 dB (A) nominated in the ENMM versus background + 15 dB (A) vastly distorts the concept of sleep disturbance nominated in the RNP.

1. Notwithstanding this, Mr Cooper notes that the council has adopted a restrictive time policy and allowed an extension of it to permit haulage activities between 7.00 and 9.30 pm. Considering the existing "noisy" environment he does not support the extended operating hours for the heavy vehicles.

1. However, Dr Tonin undertook a noise assessment of the local environment to assess the impacts arising from the change in vehicular movements during the night-time period due to the redistributed traffic movements. Following the joint conferring this assessment was updated as per the "Truck LEQ and SEL Calculations" in Exhibit H.

1. In summary, the results of the noise testing shows after adjustment that:

• Thursday night;+ 0.6 dB(A)
• Weekdays;+ 1.0 dB(A)
• Saturday;+ 1.1 dB(A)
• Sunday;+ 0.3 dB(A).

1. As these increases are less than the specified + 2 dB (A) in the RNP, Dr Tonin says that the proposal represents a minor impact that should be acceptable to an average person, subject to the compliance with proposed noise mitigation measures. These measures include the aforementioned speed restriction on trucks, restriction on air horns and compression braking.

Internal noise

1. A separate issue concerned the noise impacts from the site operations between 5am to 6am. Dr Tonin assessed this matter and recommended the erection of a specified 2.5 m high acoustic barrier along the northern boundary to ensure that noise levels comply with the EPA's Industrial Noise Policy.

1. Mr Cooper agrees with this solution as a satisfactory outcome. I rely on the experts' agreement on this matter that it can be satisfactorily dealt with by way of conditions.

Conclusion

1. For the determination of this matter I have considered the evidence, submissions and undertaken a view. As this application is for a s 96 modification of Condition 24 of an existing consent, I am firstly satisfied that the application relates to substantially the same development.

1. Next, I am satisfied that the modification application has been notified and I have considered the various objections in conjunction with the contentions raised by council.

1. In terms of the merits of the application, I think it important that the context of the development be given appropriate weight. The warehouse and distribution centre has been operating in the industrial area since its approval in 2007. Its only access is via the designated B-Double route that traverses the low-density residential area (horse area) via Manning Street.

1. However, this industrial area is substantially developed and it attracts a variety of truck/heavy vehicles. This appears to be the situation with the IPMG development located opposite the subject site, which is not subject to restricted heavy-duty vehicle movements.

1. Consequently, the 'horse area', which contains a mix of horse training facilities and associated residences, is a relatively 'noisy' area as determined from the noise monitoring and as agreed by the acoustic experts. Notwithstanding this, the applicant applied to the RTA for approval of the B-Double route and after referral to council for consideration, this B-Double route was confirmed without any time restrictions, as previously mentioned.

1. In these circumstances then, I note the DCP's restriction on night-time heavy vehicle operating hours between 6 pm - 7 am weekdays, which seek to qualify the B-Double route usage. However, council has relaxed this in the current circumstances by allowing the evening operations until 9.30 pm.

1. Accordingly, I think the circumstances of an unrestricted B-Double route and past variations to the DCP controls now allows some discretion in operating hours, subject to any proposal reasonably achieving the stated objectives to "minimise" amenity impacts, during the extended periods.

1. As stated, the main issues concern traffic safety and sleep disturbance impacts. With regard to the traffic safety concerns, the proposed redistribution of traffic (Table 1) involves an increase in workforce vehicles and heavy vehicles (including semi-trailers and B-Doubles) in the early morning period as stated in the TMP.

1. I understand from the evidence that Mr Wiafe's primary concern, relative to the subject application is about the heavy truck movements and not the workforce vehicle movements and I accept this position. In this regard, Mr Coady undertook some traffic counts and they have been considered in conjunction with council's past traffic counts.

1. Having considered the proposed changes relative to the existing traffic movements, I agree with Mr Coady's opinion that the additional eight (8) heavy vehicles in the 3.30 am - 6.00 am period is a relatively small increase in traffic movements.

1. In my assessment, the potential interaction of these additional 8 trucks in the early morning period with the equine activities should be able to be safely managed as stated by Mr Coady. It is apparent from the surveys that the main location for conflict is along Manning Street, especially at the crossing leading to National Street. Otherwise the majority of the equine activities have alternate access to the racecourse.

1. Assuming compliance with the TMP provisions, specificifically driver training and instructions to limit speeds to a maximum of 30 kph and taking into account that the road alignment is somewhat constrained, I think that the horse handlers would receive reasonable notice of the approaching trucks and be able to take any precautions. Obviously the approaching vehicle would be heard and in most cases it would have lights on.

1. Based on Mr Coady's traffic studies it is apparent that there are some existing heavy vehicle movements in the early morning period. I therefore note that enquiries were made to the Police regarding any horse related road incidents in the past 2 years, within the subject section of the BDouble route. The Police response is that there were no incidents.

1. This confirms my conclusion that the redistributed heavy vehicles of 8 vehicles over the extended period should not result in unacceptable traffic safety risks on the approved B-Double route and can be reasonably managed by way of conditions, so that any traffic safety impacts on the residential area are minimised.

1. Notwithstanding this, I am still interested in the provision of some form of appropriate delineated person/animal crossing opposite National Street as an additional safety precaution. I am also concerned about Mr Wiafe's issue on the enforceability of the TMP provisions and think that it will take some time to fully implement these provisions. Therefore the approval on a 12month trial basis to ensure the new safety regime is fully operational and any additional safety facilities could be considered during this period seems reasonable.

1. With regard to the associated noise issue, I accept that the 'horse area' is classified as relatively 'noisy' based on the noise monitoring results. But the determination of this issue was complicated by the disparate opinions presented by the acoustic consultants.

1. I am satisfied that the appropriate controls are contained in the RNP, which was adopted by the NSW Government on 1 July 2011 to replace the previous controls in the ECRTN. The policy outlines a range of measures to minimise road noise and its impacts.

1. Section 2 of the RNP "Assessment Criteria" states:

The noise assessment criteria presented in this section are consistent with current international practice for managing traffic noise impacts. However, achieving the noise assessment criteria would not guarantee that all people would find the resulting level of traffic noise acceptable. There can be a wide variation in individual reaction to noise. In this context, the criteria have been set approximately at the point at which 90% of residents are not highly annoyed by the noise.

The criteria for various road categories and land uses presented in Section 2.3 identify noise levels that provide for a degree of amenity appropriate for the land use and road category. The specified noise levels are based on well-documented social surveys defining a dose-response relationship between noise level and its effects, such as annoyance and disturbance to listening, talking, relaxing and studying (see Section 5.1). These levels are supported by comparison with overseas criteria.

1. Section 3.4 states that where existing traffic noise levels are above the noise assessment criteria, the primary objective is to reduce these through feasible and reasonable measures to meet the assessment criteria. A secondary objective is to protect against excessive decreases in amenity as the result of a project by applying the relative increase criteria. Consequently, an increase of up to +2 dB represents a minor impact that is considered barely perceptible to the average person.

1. In my assessment, Dr Tonin has followed the suggested procedures and recommended certain mitigation measures to ensure that any noise increase is comfortably below the specified + 2 dB allowance in a 'noisy' environment. When challenged by Mr Cooper on aspects of his assessment, Dr Tonin was able to indicate that within the sensitivity of the modelling exercise, it was conservative and there was still comfortable compliance with specified + 2dB allowance factor.

1. Nevertheless, the challenge to the modelling did reveal some uncertainties about the various contributions of heavy vehicles during the night-time period when DFE trucks were operating outside the approved hours and this lead to various adjustments to the modelling results. Consequently, this makes me think that whilst there is some justification for extending the operating hours, as sought, further modelling over a longer period and at different times of the year, is warranted to ensure that any noise impacts are minimised long term.

1. As I indicated previously, there were a number of objections raised against this application are. Those objections are summarised as:

• The proposed development will result in noise levels, which will have an adverse impact on the amenity of the neighbouring residential area.
• The proposed development will result in noise levels, which would cause sleep disturbance to the residents of homes located near the site and along the truck route to and from the site.
• The proposed development will result in light pollution during the night which will have an adverse impact on the neighbouring residential area
• The proposed development is inconsistent with existing neighbouring developments (residential and various equine industries) and would create a safety hazard for pedestrians, horses and other road users during the early morning on weekdays and all day on weekends
• The proposed development would worsen existing heavy traffic which would have a negative effect on the viability of the area as a training area and property values.
• The proposed development and the use of truck routes through the neighbouring residential area is inconsistent with the zoning of the area and the nature of the area as a horse racing precinct

1. These objections are in the main consistent with the contentions raised by council and considered in the appeal. There was no substantive evidence presented regarding impact on property values or viability of the training area and I therefore give this little weight. With regard to the inconsistency with the zoning, I understand that there is a strategic planning review under consideration for this area but there was no compelling evidence to reject the application on these grounds.

1. One such review is the Strategic Review of the Warwick Farm Horse Training Precinct. This review considered:

• Results of public consultation;
• Assessment of land use conflicts;
• Investigation of a secondary road access to address traffic volumes on Manning Street;
• On-street car parking controls;
• Horse and trainer safety; and
• Sustainability / longevity of horse training/boarding establishments.

1. A number of actions were recommended including pursuit of a bypass road and the preparation of a Local Area Traffic Management Plan to address parking issues, speed limits, truck driver training. These matters are undetermined at this stage.

1. In summary then, I consider the applicant has made a reasonable case to merit a variation of the approved operating times for the freight distribution operations and therefore some discretion can be exercised with the DCP controls. In this regard, I note the submissions regarding the matter of Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133, wherein the Preston CJ said:

Application of the Australian Standard RPS3

98 It is not appropriate for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3: Connell Wagner Pty Ltd v City of Port Phillip [1998] VCAT 606 (15 January 1999) at pp. 18, 21 and Heland Pty Ltd & Anor v Telstra, unreported, VCAT Ref No P 3620/2004 (8 March 2005) at [7].

99 Nor is it appropriate for a court to pioneer standards of its own. The creation of new standards is the responsibility of other authorities with special expertise, such as ARPANSA: Hyett v Corangamite Shire Council & Telstra [1999] VCAT 794 (30 April 1999) at p. 5; Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350 (9 March 2001) at 364 [61] and 379 [117]; Lucent Technologies v Maribyrnong City Council & Ors [2001] VCAT 1955 (27 September 2001) at [52] and [57]; Peasley & Ors v Frankston City Council [2002] VCAT 642 (25 July 2002); Telstra Corporation Ltd v Moreland City Council [2002] VCAT 1294 (23 October 2002) at [32]; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June 2003) at [24]; Optus Pty Ltd v Cardinia Shire Council [2004] VCAT 581 (2 April 2004) at [17] and [19]; Telstra Ltd v Mornington Peninsula Shire Council [2005] VCAT 863 (9 May 2005) at [20]; Hutchison 3G Australia Pty Ltd v Hobsons Bay City Council [2005] VCAT 1470 (18 July 2005) at [28]-[29].

100 The Court should accept and apply the Australian Standard RPS3: Sinclair v Loddon Shire Council [1997] VCAT 241 (1 December 1999) at p. 3; Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 250 at 364 [61]; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June 2003) at [26]; Blake Dawson Waldron on behalf of Telstra Corporation v West Tamar Council [2004] TASRMPAT 201 (20 August 2004) at [43]; Hutchison Telecommunication (Australia) Limited v Ku-ring-gai Municipal Council [2004] NSWLEC 665 (10 November 2004) at [15]; and see also McIntyre v Christchurch City Council [1996] NZRMA 289 (5 March 1996) New Zealand Environment Court, 295.

1. Whilst I consider these finding have very limited application to the subject matter, I am satisfied that the RNP is the appropriate control to adopt regarding road noise assessment. Accordingly, I think that providing its overall objectives are achieved along with qualitative objectives in the LEP and DCP to minimise any adverse (traffic safety and noise) impacts on the area, then the quantitative controls of the DCP for operating hours can be varied.

1. My findings, based on the evidence are that an acceptable balance between the competing interests of the industrial area users and the residential area should be achieved by:

I.   Extended hours of operation for the heavy vehicles being permitted on the basis of a 12 - month trial period to allow for the various TMP measures to be fully implemented and provide a reasonable period for effective self regulation.

II.   The evening period extension to be limited to 10 pm and not 10.30 pm. In this regard, I note the frequent references in the RNP to 10pm as the change time from the evening period to the night - time period from 10 pm to 7 am. It seems to me that this is a relevant consideration to enable the 'horse area' residents a reasonable opportunity for sleep period prior to their early morning horse training activities.

III.   The early morning heavy vehicle movements as listed in Table 1 not to commence before 4am. It seems reasonable that the relatively low number of redistributed heavy vehicle arrivals could be effectively scheduled to avoid the "quiter" period from 3.30 -4.00am, in terms of horse activity, thereby minimising any adverse traffic and noise impacts.

IV.   An effective noise and traffic monitoring program be implemented to provide accurate evaluation criteria at the end of the 12 - month trial period. Such program should address the issues raised by Mr Cooper regarding the contribution by vehicles from various sources. It should also cover the enforceability issues raised by Mr Wiafe

V.   The 12 - month trial period would enable council to progress the strategic planning for this area, particularly the preparation of the LATM plan, which could presumably address any the B - Double route operating restrictions and the introduction of any traffic control measures such as pedestrian/horse crossing facility across Manning Street.

1. As these measures were not specifically addressed during the hearing, the parties are invited to make any further submissions in this regard or file amended conditions to achieve the desired outcomes, which are to minimise adverse amenity impacts in the area, prior to the making of final orders.

Court orders

1. The appeal is upheld.
2. The conditions of consent for the DFE development at 20 Scrivener Street, Warwick Farm are modified as shown in Attachment B.
3. The exhibits may be returned except for 1, 3, 5 and P.

R Hussey

Commissioner of the Court

ATTACHMENT A

ATTACHMENT B

Decision last updated: 30 November 2012