Bush Beach Holdings Pty Ltd and City of Mandurah - [2013] WASAT 139

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BUSH BEACH HOLDINGS PTY LTD and CITY OF MANDURAH [2013] WASAT 139

MEMBER: MR P McNAB (SENIOR MEMBER)
MR P CURRY (SENIOR SESSIONAL MEMBER)

HEARD: 12 MARCH, 8 AND 14 MAY 2013

DELIVERED : 29 AUGUST 2013

FILE NO/S: DR 75 of 2012

BETWEEN: BUSH BEACH HOLDINGS PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Development application Extractive industry Raw materials Sand quarrying Rural area Further expansion of quarry operations Quarry in operation since 1996 Conditional approval given by local government Conditions to be imposed limiting environmental and amenity impacts from noise Noise levels and truck movements Early morning operating hours Local government had informally regulated pre7 am operations on a casebycase basis Noise received at 'sensitive' neighbouring premises Proper interpretation of Environmental Protection (Noise) Regulations 1997 (WA) How noiseproducing premises are to be defined in terms of area Whether boundary of lot or boundary of operations defines premises Tribunal determining lot boundary defines premises Approval given by Tribunal for formalisation and regularisation of existing practice Early morning operations noise management plan required Words and phrases: 'premises'

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA), reg 2, reg 2(1), reg 5, reg 8, reg 8(2), reg 12, reg 19, Sch 3 item 1(1), item 2(1)(c)
Environmental Protection Act 1986 (WA)
Mines Safety and Inspection Act 1994 (WA)

Result:

Application for review allowed
Outstanding conditions determined

Summary of Tribunal's decision:

The applicant, Bush Beach Holdings Pty Ltd, had for many years pursued with the City of Mandurah the issue of the expansion of an existing sand quarry operation near Old Coast Road at Herron. This operation had been going since 1996. After a long process of referrals, staged decision-making and mediation the City granted conditional planning approval for the expansion of the sand quarry operation.
The remaining issues for the Tribunal to determine related to the regulation of noise emissions from the site (mainly from trucks) and related questions concerning the operating hours. The parties each commissioned very experienced noise experts. The proceedings were initially adjourned so that the experts could do further testing as to the received noise at so-called 'sensitive' neighbouring premises.
The experts were at odds over the proper application of the State's noise regulations. The Tribunal ruled that the applicant's expert had correctly applied the noise regulations. His evidence was therefore to be preferred.
The dispute between the experts essentially turned upon whether the noise calculations as to noise-producing 'premises' should be fixed by reference to the entire lot area or the actual operations boundary. If it were the former, the 'influencing factor' under the noise regulations would be higher and would tend to favour the applicant's case. These calculations, in turn, affected the maximum number of truck movements, if permitted, pre7 am.
The Tribunal found that as a matter of statutory interpretation fixing an operational area that might be difficult to define with any precision and which might change from time to time would saddle both the landowner and the regulator with an unreasonable enforcement burden. 'Premises' should therefore be interpreted so as to 'protect' the landowner and operator from this burden by providing some measure of certainty and reasonable immunity from potential prosecution or other action.
The City had in fact for many years permitted pre7 am start ups, in effect, on a case by case basis. The applicant sought further flexibility, including the possibility of limited 5.30 am operations.
The Tribunal looked at regulatory practice throughout Australia. Overwhelmingly, the relevant guidelines and planning cases (including sand mining cases) had established a norm of 7 am as the commencement of 'normal working hours'. Nevertheless, given the history of operations to date on the site the Tribunal considered the correct and preferable decision was to regularise and formalise the existing practice with the possibility of pre7 am start ups. However, these operations would be regulated by a management plan for pre7 am activities, a plan to be approved by the City. The Tribunal mandated that the plan must include mechanisms for notice to the owners of the neighbouring lot and for a suitable complaints mechanism.
The application for a review was allowed and the parties were directed to bring into the Tribunal a draft set of consolidated and final conditions for the approved development not inconsistent with the Tribunal's reasons.

Category: B

Representation:

Counsel:

Applicant: Mr L Stephens (Acting as Agent)
Respondent: Mr C Slarke

Solicitors:

Applicant: N/A
Respondent: McLeods

Case(s) referred to in decision(s):

Benclutch Pty Limited v Liverpool City Council [2012] NSWLEC 1284
Caversham Property Pty Ltd and Shire of Serpentine‑Jarrahdale [2006] WASAT 173
Diamond v Minister for Planning New South Wales (No 2) [2004] NSWLEC 254
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477
PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87; (2010) 72 SR (WA) 133
Robertson and Shire of Murray [2009] WASAT 171
Seabridge Pty Ltd v Beaudesert Shire Council [2000] QPEC 95; [2001] QPELR 191
Waldoo Pty Ltd v Corangamite Shire Council [2006] VCAT 1416

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Bush Beach Holdings Pty Ltd (Bush Beach or applicant) has sought a review under the Planning and Development Act 2005 (WA) (PD Act) of certain planning conditions imposed by the City of Mandurah (respondent or City) in respect of a development application for the expansion of an existing sand quarry operation near Old Coast Road at Herron.
The principal issues have been reduced to the regulation of noise emissions from the site and related questions concerning the operating hours. As will appear below, on crucial points, the two noise experts held significantly different opinions on noise standards, so far as they applied to the facts of the case.
The review was conducted over two days of hearings, which were conducted two months apart to allow for further acoustic evidence to be gathered and considered by both parties. This hiatus became necessary when, amongst other matters, it became clear that a more accurate joint assessment by the noise experts would be necessary to determine the outstanding issues between the parties. In particular, more accurate noise measurements would be needed in respect of the noise received at the nearest neighbouring premises.
We record that the parties consented to the Tribunal's mediator, Senior Sessional Member Peter Curry, constituting or being included in the final hearing panel.

Site, locality and underlying resource

The proposal is for the expansion of an existing sand quarry located in the central western portion of Lot 721 on Old Coast Road at Herron. Lot 721 extends over 194 hectares and is zoned Rural under both the Peel Region Scheme and the City's Town Planning Scheme No 3 (TPS 3).
The sand resource under extraction is from a large dune forming part of the 'Spearwood' geomorphological system. The site is identified as a 'significant' basic raw material resource in State Planning Policy No 2.4 ‑ 'Basic Raw Materials' (2000): see site MH9 therein.

Existing quarry and proposed expansion

The quarry has operated since 1996 under previous planning approvals. Operations are accessed from Old Coast Road via a short road joining Old Coast Road at a point roughly 200 metres west of the shoreline of the Harvey Estuary. The access road grades uphill and cuts into the natural land surface.
In his witness statement, the quarry's operations manager since its commencement, Mr Mitch Nizich, stated that during this period, approximately four million tonnes of sand have been excavated and transported from the quarry. Sand from the site has been used to supply large projects including the Mandurah Bypass as well as most major subdivisions and commercial and urban lots in the Peel region.
The current application for extended planning approval involves the further clearing of 10 hectares of parkland, and bush and would extend the quarry a further 340 metres to the south, 200 metres to the south‑west, and 190 metres to the west.

Procedural and mediation history

The application was received by the respondent as far back as September 2006. The proposal required comments from various State and Commonwealth agencies, some of which sought additional information on the proposal. When this process of referrals was eventually completed, the City determined the application on 28 February 2012. Development approval was refused by the City.
Following mediations on site and at the City's offices, a reconsideration of the decision (invited by the Tribunal) resulted in planning approval being granted on 28 August 2012. This was for, in effect, two consecutive 10 year periods, subject to evidence of satisfactory compliance with the conditions that were imposed.
The proposed development conditions covered various environmental and amenity aspects. These included: the hours of operation; compliance with an Excavation-Rehabilitation Management Plan; the excavation area and an adequate separation distance from the water table; bunding to address noise and safety needs; dust management; vegetation and rehabilitation; fauna protection; noise management and a complaints procedure.
Following further mediation, the City was again invited to reconsider its decision. This occurred on 25 September 2012. The outcome of this process was that only one condition now remained which had not been agreed to by the parties (condition 3). However, as appears below, the hearing expanded to take account of some new, relatively marginal differences between the parties.

Outstanding issues

As mentioned, the unresolved issues initially arose out of the City's condition 3 of the planning approval. That condition was in the following terms:
Hours of operation
…
3.Unless [otherwise] approved by the City of Mandurah, the hours of operation for the development shall be as follows:
3.1The site may be opened no earlier than 6:00 am. From that time preparatory site work may be carried out on and by a loader (including maintenance, start‑up and the preparation of excavation and loading areas) on the Site.
3.2No haulage truck may enter or exit the Site prior to 7:00 am.
3.3No sand excavation or loading of material may take place before 7:00 am.
3.4All activity on the Site must cease by 6:00 pm.
3.5The development may not operate on Sundays or Public Holidays.
In summary, condition 3 sought to prevent unacceptable incidences of early morning noise, either emanating from machinery operations or by trucks entering, loading and leaving the site to and from Old Coast Road. This was achieved by, in effect, restricting the operation to daytime hours (that is, 7 am to 6 pm).
As already mentioned, it became apparent that a further noise study was necessary, in part, to clarify what level of noise was being received at the nearest neighbouring house (that is, 'sensitive' premises ‑ see below) at Lot 40, located on Old Coast Road. This lot has common boundaries north and west of Lot 721 (the subject land) and is the closest of 11 lots in the vicinity zoned Rural Residential.
More precisely stated, Lot 40 is close to the northern boundary of Lot 721, an operational access track, and about 100 metres from the closest point of the quarry's access road.

Expanded issues for determination

On the first day of the hearing, the parties indicated that the scope of issues before the Tribunal might expand marginally. Thus, earlier, on May 2013, the City had suggested changes to three conditions. As to condition 3, the City's new formulation was as follows:
Unless otherwise approved by the City of Mandurah, the hours of operation for the development shall be 7 am to 6 pm Monday to Saturday. The development may not operate on Sundays or Public Holidays. Where a pre‑7 am start time is considered for approval by the City it shall be a condition of that approval that the development is carried out in accordance with a management plan for pre‑7 am operations approved by the City.
The City also submitted that an additional condition for rehabilitation, in 2013, of a newly‑constructed acoustic bund with local native species should be imposed (condition 15A, with which Bush Beach subsequently agreed). The City also sought a further change to a noise condition (condition 18) to prevent tonal noise from certain front‑end loader operations.
On the other hand, the applicant's draft of condition 3 is as follows:
Unless otherwise approved by the City of Mandurah (CEO), the hours of operation shall be 5.30 am to 6.00 pm Monday to Saturday. No excavation or transport is permitted on Sundays or Public Holidays. A Pre‑7.00 am Operational Management Plan is to be prepared by the applicant and approved by the City of Mandurah. The Pre‑7.00 am Operational Management Plan is to be implemented and complied with.
Thus, the central issue in the review is the form in which condition 3 appears, and whether it should permit discretionary movements pre‑7 am, or regulated truck movements, as of right, from as early as 5.30 am.

Pit operations

It is convenient at this point to set out certain operational and regulatory matters which form the backdrop to the decisions to be made.
Mr Nizich explained that both the current and proposed operation involved the machining of a soft substance (that is, sand), using only one or two loaders and a water truck. All operations were conducted as mining operations' but only in the narrow sense that they were regulated under the Mines Safety and Inspection Act 1994 (WA).
The extraction process in each stage of pit development involved working the pit face from the west end eastwards, with each excavation stage progressing to the south. At present, the loader is required to be driven from its shed near the access road entrance to the operating point. Truck drivers arriving for loading announce their arrival by UHF radio.
Mr Nizich suggested that, if permitted, all pre‑7 am operating protocols for trucks and front‑end loader operations should be set out in a plan of pre‑7 am start up management, so as to regulate noise emissions further during that time.
We turn to consider the noise issues in more detail.

Noise issues

It was agreed by the two noise experts, commissioned separately by the parties (see the experts' details below), that with regard to the daytime period's 'assigned' noise levels (that is, after 7 am), noise from the front‑end loader (or loaders) and truck movements would comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
With regard to any early morning operations during the night‑time period (that is, immediately before 7 am), it was generally established through the combined evidence of Mr Nizich and Mr Aaron Lucas, Senior Town Planner for the City, that the earlier 1996 planning approval stipulated an operating period from 7 am on weekdays only.
In October 2000, the City's Planning, Development and Community Committee had 'permitted' Saturday operations for the duration of the supply of sand to the Dawesville Deviation road. Saturday operations were confirmed by the City with a five‑year approval, from November 2001. Pre‑7 am site activity at the quarry had already taken place in order to supply large contracts, most recently during the three months to January 2013 when loaded trucks left the site from 6 am. Mr Nizich explained that Bush Beach had notified the City of such movements by telephone.
Mr Lucas stated that he had been unable to locate documentary evidence confirming that such an arrangement had been formalised to this extent, although it was possible that nothing had been placed on the City's files.
In any case, both Mr Lucas and Mr Nizich agreed that no complaints had been received in relation to noise or any other problem with the episodic early morning operations that had been conducted over several years up to the present time. However, in his witness statement, Mr Lucas made it clear that he was aware that:
… noise is clearly a matter of concern to nearby residents generally, and to the owners of Lot 40 in particular … 7 am marks the change between the 'night' and 'day' periods under the Noise Regulations, but it also reflects a general community expectation that the noise producing activities will not commence prior to 7 am.
In addition, the minutes of the respondent's Council meeting of 28 August 2012 records a deputation by Mr Guy, a joint owner of Lot 40, who spoke against the development application, citing reasons that included noise issues. We also record that, in response to the advertising of the application to surrounding landowners, in accordance with the provisions of TPS 3, a submission by Mr and Mrs Guy was recorded as addressing alleged '[n]oise pollution, dirt and dust issues' and an alleged '[d]eterioration to the natural amenity and rural living in this area'.
In his closing submissions, Mr Slarke, counsel for the respondent, drew attention to the fact that when the application was advertised, among the 40 submissions received, there was a 'common theme' in those submissions raising concerns about noise, including, as we have seen, a submission by Mr and Mrs Guy, the owners of Lot 40.

The evidence of the noise experts

Three noise reports were relied on by the applicant, while the respondent also undertook a separate assessment of truck noise. Importantly, for the actual hearing, there were two joint statements prepared by the two acoustic engineers, Mr Timothy Reynolds (commissioned by the applicant) and Mr Daniel Lloyd (commissioned by the respondent). Mr Reynolds and Mr Lloyd jointly attended a site visit on 19 April 2013 and measured the noise of two trucks travelling from the public road up the quarry access road. As is noted below, the circumstances of that measuring exercise on 19 April 2013 are uncertain.
The noise experts agreed that the Noise Regulations should apply to the operational noise emanating from both the quarry and from the access road. They agreed that the noise received at the nearest house, on Lot 40, was a critical issue and that the relevant part of the table found in reg 8 of the Noise Regulations (Table 1) was that denoted as '[n]oise sensitive premises at locations within 15 metres of a building directly associated with a noise sensitive use'. Regulation 8(2) of the Noise Regulations provides, so far as is relevant, as follows:
(2)The assigned level for all premises is to be determined by reference to the table to this regulation.

Table 1

Type of premises receiving noise	Time of day	Assigned level (dB)
Type of premises receiving noise	Time of day	L_{A 10}	L_{A 1}	L_{A max}
Noise sensitive premises at locations within 15 metres of a building directly associated with a noise sensitive use	0700 to 1900 hours Monday to Saturday	45 + influencing factor	55 + influencing factor	65 + influencing factor
	0900 to 1900 hours Sunday and public holidays	40 + influencing factor	50 + influencing factor	65 + influencing factor
	1900 to 2200 hours all days	40 + influencing factor	50 + influencing factor	55 + influencing factor
	2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and public holidays	35 + influencing factor	45 + influencing factor	55 + influencing factor

The Noise Regulations (reg 2(1)) define the 'representative assessment period' in the following terms:
representative assessment period means a period of time of not less than 15 minutes, and not exceeding 4 hours, determined by an inspector or authorised person to be appropriate for the assessment of a noise emission, having regard to the type and nature of the noise emission[.]
The experts' initial agreement was that the trucks would be affecting the noise received at the sensitive premises for less than 10% of the representative measurement period (that is, the 'representative assessment period'); thus an 'assigned noise level' of LA1 would apply. Loaders would be operating for more than 10% of the measurement time, so LA10 was the appropriate assigned noise level.
Mr Lloyd subsequently changed his view. He suggested that it would take only two or three trucks entering the site in the period 6 am to 7 am for more than 10% of a one hour representative measurement time (the 'representative assessment period') to be exceeded, so LA10 was also applicable for truck noise.
It was agreed between the experts that American‑manufactured trucks were typically noisier than European makes, so the actual mix of trucks accessing the site on any given day would also affect the noise outcome and potential compliance. Mr Lloyd was of the view that the experts' agreed measurement period of one hour was a matter of judgment and could not be relied upon, in the event of a measurement period being determined for enforcement purposes under reg 2 of the Noise Regulations, which states (see above) that this is to be undertaken by 'an inspector or authorised person'.
Mr Lloyd explained that in practice under the Noise Regulations, inspection for noise abatement notices is often delegated to the Chief Executive Officer of a local government who then delegates action to the local government's health officers, who will use their own judgment to determine a representative assessment period. In the event that an officer chose 15 minutes as that period for a pre‑7 am measurement, a single truck entering and leaving would be sufficient for a Noise Regulations breach. Mr Reynolds said that if this happened, an operator would argue that one hour was a more reasonable assessment period and that 'common sense would prevail'.
The noise experts agreed that the method used to calculate the influencing factor appropriate for the location was of critical importance in assessing what potential combinations of pre‑7 am noise sources were likely to be compliant at either LA10 or LA1 assigned levels. Mr Reynolds and Mr Lloyd agreed that the tonal noise component, mainly resulting from the front‑end loader revving while digging, could be addressed using an upgraded exhaust muffler system (that is, by the imposition of an appropriate condition to this effect).
Mr Reynolds and Mr Lloyd initially agreed that the existing front‑end loader would only comply with the night period (pre‑7 am) if it operated in the north‑west quadrant of the pit. Should there be a requirement for it to work in the western half of the pit, additional noise control would be required.
In later joint evidence, Mr Reynolds and Mr Lloyd disagreed on whether noise from the front‑end loader operations would comply, the issue depending upon what influencing factors were to be assigned, and whether a front‑end loader's tonality component (+5 dB), exhaust direction and the direction of loading were all adjusted accordingly.

Background noise

It was common ground that the opening of the Forrest Highway since operations began had an ongoing effect of greatly reducing the amount of traffic on Old Coast Road and thus reducing the levels of background noise from that source. Mr Reynolds' witness statement included background noise measurements taken over the Christmas period 2012 at Lot 40 following the construction by the applicant of a noise bund between the pit area and the sensitive premises. These measurements were expected to be representative of a period of lowest background noise levels from vehicles travelling on Old Coast Road. The results suggested that, subject to the influence of wind conditions, the noise of trucks entering or leaving the pit between 6 am and 7 am would be masked to a varying degree by the background noise levels.
Under questioning from the Tribunal, Mr Lloyd said that their joint measurements of truck noise indicated that, despite the masking effect of the background noise, the noise of trucks entering and leaving the pit would be clearly audible at the neighbouring house (Lot 40) and could be reasonably expected to impact on amenity, particularly in the pre‑7 am period.
Mr Reynolds' view was that the threshold for what was unreasonable noise was that set by reg 5 of the Noise Regulations, and that truck noise from the pit operation would be similar to truck noise from Old Coast Road.

Noise influencing factor calculations

Critically, the experts did not agree on the calculations applicable in relation to the 'premises' area of the land involved in the proposal. That 'area', as calculated, determines the sound‑influencing factor under the Noise Regulations and the allowable noise received at the sensitive premises.
So far as is relevant, Sch 3 of the Noise Regulations ('Determination of influencing factor on noise sensitive premises') is in the following terms:
2.Influencing factor
(1)The influencing factor for noise received on noise sensitive premises is to be determined as follows ‑
(a)using an appropriate land use map, 2 concentric circles, having radii representing 100 metres and 450 metres, and centred on the measurement point on the noise sensitive premises are to be drawn;
(b)subject to subclause (2) the land within the circles that is ‑
(i)Type A ‑ industrial and utility premises; or
(ii)Type B ‑ commercial premises,
is to be identified as such by reference to one or more appropriate land use maps; and
(c)the area of each type of premises is to be calculated as a percentage of the full area of each circle and used to determine the Influencing Factor to the nearest dB in accordance with the following formula ‑
Influencing Factor in dB = 1/10 (sum of Type A percentages for both circles) + 1/20 (sum of Type B percentages for both circles) + transport factor or 6, whichever is the lesser amount
The noise experts agreed that the proposal was of Type A ('industrial and utility premises'). However, in respect of the relevant influencing factor figure, each expert had calculated, under Sch 3 item 2(1)(c) of the Noise Regulations, different circle area figures.
Their differences arose from conflicting views on characterising 'premises' under Sch 1 of the Noise Regulations ('Classification of premises'; 'Part A ‑ Industrial and utility premises'). Items 4 and 5 of Sch 1 Pt A appear most relevant to this task and they provide as follows:
4.A mine within the meaning of the Mines Safety and Inspection Act 1994.
5.Without limiting item 4, any premises used for sand, gravel, clay, limestone, or rock excavation.
The applicable item for a sand quarry or sand pit was, in Mr Reynolds' view, item 5, and as regards 'any premises used', the relevant premises of the current proposal were the whole of the lot, thus an area much larger than the approved boundary of the expanded quarry operations. In short, in Mr Reynolds' opinion, the area within the two circles of 100 metres and 450 metres radius around the noise‑sensitive residence properly reflects the whole of Lot 721 as the 'premises' relevant to calculating the influencing factor.
If Mr Reynolds' view were to be accepted, then the practical effect would be to produce a higher 'influencing factor' and therefore a higher threshold of permissible noise.
Under cross‑examination by Mr Slarke, counsel for the City, Mr Reynolds, agreed that in his original noise reports, the influencing factor used had been calculated on the assumption that this was a mine, not a sand pit. Thus, if any part of the lot were to be used for excavation, all of the balance of the lot not used for that purpose was to be disregarded as industrial and utility premises. As a result, the influencing factor used in his original report was +4 dB.
Mr Slarke questioned the logic of the whole lot as the 'premises' proposition. Mr Reynolds agreed with a hypothetical situation put by Mr Slarke to the effect that subdivision of Lot 721 into northern and southern portions would, without changing anything in respect of the actual pit operations, therefore have the effect of reducing the area of premises in the circles. In that way, subdivision would have the effect of changing the influencing factor and permitted levels of noise, as land zoned Rural (that is, the other lot) otherwise has a zero influencing factor.
The agent for Bush Beach, Mr Stephens (and an expert in his own field), was permitted to give us the benefit of his extensive experience with such quarries. His view was that in respect of quarries which are licensed for crushing under the Environmental Protection Act 1986 (WA), the premises are identified on a plan, and this is sometimes shown as the property boundary and sometimes as the operational area. He also drew attention to PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87; (2010) 72 SR (WA) 133 where the noise modelling for a limestone quarry operation had apparently proceeded upon the assumption that the whole of the subject lot was the basis of the influencing factor calculation.
On the other hand, Mr Lloyd's view was that it is the area actually used for the purpose of an extractive industry that is considered to be 'industrial' under the Noise Regulations. Mr Lloyd’s view was that it was incorrect to suggest that all of a rural land lot should be regarded as if it were industrial and hence premises in this sense simply because there was a pit on a portion of it. To his knowledge, that was the understanding applied through regulatory guidance by officers of the Department of Environment and Conservation. Thus, if a pit size increased over time (for example, by not rehabilitating previously mined areas) the noise allowable thresholds would effectively increase over time.
While for the above reasons the experts could not agree on the influencing factor for assigned noise levels, they did agree that if it were to be calculated based on the extractive industry licensed operational area, the influencing factor would be +5 dB; if it were based on the licensed area plus the area of the noise bund it would be +6 dB; and if it were to be calculated on the entire property area of Lot 721 the influencing factor would be +12 dB.
Thus, Mr Reynolds, commissioned by the applicant, calculated the assigned noise level during the period 6 am to 7 am at LA1 57 dB and LA10 47 dB based on an influencing factor of +12 dB, while Mr Lloyd, commissioned by the respondent, calculated those levels should be LA1 50 dB and LA10 40 dB based on an influencing factor of +5 dB.

Which interpretation of the Noise Regulations is correct?

At this point it is convenient for the Tribunal to rule upon which of the two experts has correctly applied the Noise Regulations upon their true construction. In other words, 'the proper interpretation of the [Noise Regulations remains] a question of statutory interpretation for the Tribunal', and not for the experts: Robertson and Shire of Murray [2009] WASAT 171 at [79].
The Noise Regulations, in effect, instruct the user or regulator to determine the 'influencing factor for noise received on noise sensitive premises' by using 'an appropriate land use map'. Further, by 'reference to one or more appropriate land use maps' the land 'within' the '2 concentric circles' that is 'industrial or utility premises' is to be 'identified'. A 'land use map' is defined in item 1(1) of Sch 3 of the Noise Regulations to mean:
(a)a map prepared and in use by a local government for the purposes of imposing differential general rates;
(b)a map that is included in a town planning scheme in force under the Town Planning and Development Act 1928; and
(c)a map that is included in a redevelopment scheme referred to in section 6(4) of the Town Planning and Development Act 1928[.]
Only a zoning map under TPS 3 (that is, (b) above) appears to be relevant here. The zoning map shows the whole of the subject land as included in a land use specified as Rural.
'Premises' is not relevantly defined in the Noise Regulations (but see below, as to the parent Act). The word is used in the Noise Regulations to apply to a wide variety of locations, buildings and sites (see, for example, the word's use in relation to 'rural premises' (reg 2(1) and reg 12) and to 'caravan parks and camping sites' (reg 19). The following entry for 'premises' is to be found in the Encyclopaedic Australian Legal Dictionary:
At common law, buildings, houses, land, shops, and real property of one sort or another: see McDowell v Newchurch (1981) 53 FLR 55.
In Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152 (Eclipse), Newnes JA noted, at [105]:
The word 'premises' is defined in s 3(1) of the [Environmental Protection Act 1986 (WA)] to mean 'residential, industrial or other premises of any kind whatsoever and includes land, water and equipment'. It is evident that when used within the definition of 'premises', the word 'premises' bears its ordinary meaning, that is, it includes 'a tract of land; a house or building within the grounds, etc., belonging to it': Macquarie Dictionary (5th ed, 2009). The definition of premises in s 3(1) is plainly very broad indeed.
Thus, on its face, the word is wide enough to encompass the whole of the lot considered, say, as a planning unit in respect of which approval (including, for present purposes, regulatory approval) has been given for the use or development of a part or parts thereof.
On the other hand, the use of the word 'within' in relation to identifying the '[i]ndustrial and utility' premises which are the 'premises used for sand … excavation', combined with item 2(1)(c) of Sch 3's use of the phrase 'area of each type of premises' suggests that 'premises' might occupy (and this may be the case more often than not) less than the total area shown on a land use map's area, or less than a tract of land within such an area.
However, defining 'premises' by reference to an operational area that might be difficult to define with any or any sufficient precision and which might change from time to time seems to us to saddle both the landowner and the regulator with an unreasonable enforcement burden.
In Eclipse, the majority held that the Environmental Protection Authority [EPA] authorised a licence of an area as premises 'that [was] wider than, but connected with and which includes, actual and proposed prescribed premises'. Of primary importance in taking a wider view of the application of the term 'premises' in that case, was that 'a licence is protective' in that it can immunise the holder from committing an offence: Eclipse at [66] per McLure P. This position is consistent with well‑established analogous principles of statutory interpretation. Thus, for example, Brennan J in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 stated at 517 (citation omitted): '… a statute [can be] read down to protect the right of silence' (emphasis added).
On balance, we favour an interpretation which provides some measure of certainty and which relevantly protects the operator or landowner from potential prosecution or other action.
We therefore conclude that Mr Reynolds' (revised) application or view of the Noise Regulations is correct as a matter of law. Thus, a higher influencing figure should be applied in the circumstances of the case. Accordingly, where his evidence on or related to this point is in conflict with Mr Lloyd's evidence, Mr Reynolds' opinion ought to be preferred.
The practical effect of this ruling needs to be translated into the number of permissible truck movements that could be undertaken prior to 7 am, if that course were to be allowed. We turn to this evidence, and we note in passing that, in accordance with regulatory practice, the experts confined their discussions on this point ‑ see immediately below ‑ to the period of the hour prior to 7 am, and not to, say, 5.30 am.

Number of pre‑7 am truck movements

The noise experts addressed the question of truck movements and, if these were to be allowed in the pre‑7 am period, what would be the likely maximum allowable number while maintaining compliance with the Noise Regulations.
Mr Lloyd pointed out that a loader travelling up the access road emanates noise equivalent to an American truck, received noise from both being 49 dB – 50 dB. To determine a number across mixed fleets with different trucks and noise characteristics, the experts agreed that a sensible approach would be to assume an equal number of European and American trucks accessing the pit. On that basis, the experts initially agreed that if the assumed influencing factor was +12 dB, 20 trucks would be allowable; if the influencing factor was +6 dB then 10 trucks would be allowable; and with an influencing factor of +5 dB, four trucks would be allowable.
On a recalculation, with an influencing factor of +12 dB, Mr Reynolds still calculated the allowable number to be 20 trucks while Mr Lloyd calculated 16 trucks. With an influencing factor of +6 dB, Mr Reynolds still maintained the allowable number was 10 trucks while Mr Lloyd had recalculated six trucks as the allowable number. It is not readily apparent to us upon what basis Mr Lloyd came to a different conclusion. We have already accepted Mr Reynolds' related evidence and we prefer Mr Reynolds' opinion here which also reflects the initial views of both experts.
We note that Mr Stephens contended that the measurement of truck noise undertaken jointly on 19 April 2013 reflected a 'worst case scenario', involving: an older loader; trucks that were not particularly new; trucks that were of both American and European manufacture; and trucks with their noise measured entering uphill while loaded (which they would not normally be and would require extra engine revving). The noise experts agreed that their measurements showed that trucks exiting downhill with motors coasting were quieter and would not affect the LA10 threshold.
We note that under questioning from the Tribunal, and under cross‑examination from Mr Slarke, uncertainties emerged as to whether the truck noise measured on 19 April 2013 reflected either a laden or an empty truck. Nevertheless, this is the only evidence that we have on the point and, on balance, we have assumed that the trucks were laden.

Discussion of the case

It is convenient to first determine the Tribunal's attitude to early morning operating hours.
A brief sample of broadly comparative Victorian, New South Wales and Queensland planning cases suggests that the 'Australian norm' is generally a start‑up of no earlier than 7 am. This reflects, presumably, the universality of 7 am as generally marking the end of the night period for administrative and regulatory purposes (see, for example, Benclutch Pty Limited v Liverpool City Council [2012] NSWLEC 1284 at [69]: '… I note the frequent references in the [New South Wales EPA Road Noise Policy] to 10 pm as the change time from the evening period to the night‑time period from 10 pm to 7 am'; see also, the Victorian EPA's Noise Control Guidelines 2008 schedule for construction and demolition site noise (which refers to 'Normal working hours') which oblige adherence to a standard from 7 am to 6 pm Mondays to Fridays and 7 am to 1 pm on Saturdays).
As to 7 am commencement for sand mining operations, see, for example, Waldoo Pty Ltd v Corangamite Shire Council [2006] VCAT 1416: 'Onsite truck loading activities may only take place between 7.00 am to 6.00 pm … No truck is permitted to leave the site until 7.30 am or after 6.15 pm Monday to Friday …'; Diamond v Minister for Planning New South Wales (No 2) [2004] NSWLEC 254 (specially limiting noise and truck movements from 6 am to 7 am); and SeabridgePty Ltd v Beaudesert Shire Council [2000] QPEC 95; [2001] QPELR 191, at [23]: 'The residents will carry memories of 6 am start‑ups, which will no longer be permitted under the [new] conditions'.

In PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87; (2010) 72 SR (WA) 133, the following condition was agreed to by the Tribunal:
…Unless otherwise approved by the City of Mandurah, the hours of operation and movement of trucks in or out of the site shall be limited to 0700 – 1900 hours, Monday to Saturday, excluding public holidays[.]
It is true that in Caversham Property Pty Ltd and Shire of Serpentine‑Jarrahdale [2006] WASAT 173 a 6 am start‑up was approved, but the Tribunal noted, at [24], certain special circumstances as follows:
… this is a rural area where some residential users of rural lots might be concerned about noise. It is, however, a locality where there are already three operating sand quarries. The proposed sand quarry would be different from the other [nearby] quarries in that it would have restrictions on its hours of operation, whereas the others have none. There was otherwise no evidence that this sand quarry would operate using methods any different from those at the three other sand quarries and from cross examination it was revealed that there were no complaints arising directly from the operation of the other quarries[.]
Here, for many years, the City has, in effect, regulated the matter of pre‑7 am start‑ups on a case‑by‑case basis. This appears to have worked generally successfully; certainly no formal complaints seem to have been received by the City. We think that that situation should be formalised with a condition along the lines that the City has suggested (condition 3) limited, except in special or exceptional circumstances, to the maximum truck movements from 6 am permitted under the Noise Regulations, as calculated by Mr Reynolds. The management plan for pre‑7 am operations approved by the City must include mechanisms for notice to the owners of Lot 40 and for a complaints mechanism.
We accept that the owners and occupiers of Lot 40 will, to some extent, have their amenity adversely affected by this condition. However, this is insufficient, in the circumstances discussed at length above, to warrant refusal to countenance a formalisation of what has already been occurring and which will be generally limited to what is permitted under the Noise Regulations. In addition, the management plan will include mechanisms of notification to the owners and occupiers of Lot 40 of pre‑7 am case‑by‑ case approvals by the City.

Conclusions

For these reasons the review will be allowed and the parties will be directed to bring in a consolidated set of conditions not inconsistent with these reasons. Those conditions must include proposed condition 15A (dealing with the newly‑constructed acoustic bund) and a condition (see proposed condition 18) dealing with noise from the front‑end loader operations (reflecting the agreed position of the noise experts, so far as is practicable). With the parties' consent, Mr Curry will be available, if needed, to assist the parties further with this task. Otherwise, liberty to apply will be reserved.

Orders

Accordingly, the Tribunal's orders are as follows:
1.The application for review is allowed.
2.The parties are to bring into the Tribunal within 21 days or such longer period as the Tribunal allows a draft set of consolidated and final conditions for the approved development not inconsistent with the Tribunal's reasons accompanying these orders.
3.Thereafter the Tribunal shall, within a further seven days, make final orders with respect to the draft conditions.
4.Liberty to apply is reserved to the parties for a period of 21 days.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER