Hanson Construction Materials Pty Ltd v Gold Coast City Council
[2009] QPEC 107
•30 October 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: Hanson Construction Materials Pty Ltd v Gold Coast City Council [2009] QPEC 107 PARTIES: HANSON CONSTRUCTION MATERIALS PTY LTD
Appellantv
GOLD COAST CITY COUNCIL
RespondentFILE NO: Appeal No. 808 of 2008 PROCEEDING: Appeal DELIVERED ON: 30 October 2009 DELIVERED AT: Southport HEARING DATES: 5, 6 and 7 May and 13 and 14 August 2009, Southport JUDGE: C.F. Wall Q.C. ORDER: Appeal dismissed. CATCHWORDS: PLANNING – PLANNING LAW – PLANNING SCHEME – EXTRACTIVE INDUSTRY – Nerang Quarry – application to extend quarry transport hours to include 6pm to 10pm, Mon – Fri – conflict with planning scheme – noise and other amenity effects – whether sufficient grounds to justify decision despite the conflict – need and demand for night time delivery of quarry product – regional and local considerations – acoustic barrier – application – whether agreement by appellant to an acoustic barrier amounted to change in application which was not minor. LEGISLATION: Environmental Protection Act1994, Sections 9, 14 and 15.
Integrated Planning Act1997, Sections 1.3.5, 3.5.11, 3.5.14 and 4.1.52.CASES: Returned Services League of Australia (Victorian Branch)
Incorporated v Moreland City Council [1998] 2 V.R. 406
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 C.L.R. 470
Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480
Weightman v Gold Coast City Council [2003] 2 Qd 441
Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273
Queensland Investment Corp v Toowoomba City Council [2000] QPELR 262
Isgoro v Gold Coast City Council [2004] QPELR 414
All-a-wah Cara Park v Noosa Shire Council [1989] QPLR 157
Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347
Broad v Brisbane City Council [1986] 2Qd R 317COUNSEL D. Gore QC & B Job – Appellant
S. Ure – RespondentSOLICITORS: Deacons – Appellant
Minter Ellison Gold Coast - Respondent
INTRODUCTION
This appeal concerns the appellant’s application to extend the hours of operation of its Nerang quarry to 6-10pm Monday-Friday. Current weekday hours are 7am-6pm. The application is limited to loading gravel onto trucks and their entry and departure from the quarry. Gravel will be processed during the daytime and stockpiled for loading and delivery from the site during current and extended hours. The quarry is located at the western end of Hymix Road which is a designated haulage route.
Anticipated truck movement during the extended hours are:-
Normal conditions: up to 60 trips (30 in and 30 out), i.e. on average one truck every 4 minutes.
Peak conditions: up to 120 trips (60 in and 60 out) i.e. on average one truck every 2 minutes.
The number of trips is demand driven.
Rural residential allotments (in the Park Living Domain area) to the south of Hymix Road including houses adjoining the road are shown in Exhibit 7A. Lots 42, 57, 65, 94 and 96 were inspected and Lots 52 and 95 were seen.
The application required impact assessment.
The onus of proof is on the appellant.
I should here set out a ruling I made on 6 May 2009, the second day of the hearing of the appeal
“The appellant, Hanson Construction Materials Pty Ltd, on the 6th of June 2007 made application to the respondent Council for a material change of use in relation to its Nerang quarry. The operating hours of the quarry are 7 a.m. to 6 p.m. on weekdays and 8 a.m. to 12 noon on Saturday. The material change of use application sought an extension of those hours from 6 p.m. to 10 p.m. on weekdays.
The application was subject to impact assessment, and was subsequently publicly notified.
The documents in support of the application provided to the respondent included a letter from Max Winders and Associates, Consulting Engineers and Environmental Scientists, dated 16th of March 2007. That said in part, "The noise from road traffic on Hymix Road (which is the access road to the quarry) has been addressed by Ron Rumble Pty Ltd by application of computer noise modelling and comparison to standard road traffic noise criteria. A review of this study demonstrates that the methodology is appropriate and the conclusions are valid in that the infrequent movement of trucks during the extended hours periods will not adversely impact upon residential amenity and the general locality."
The documents supporting the application included the report of Ron Rumble Pty Ltd, and the summary of that report includes the following: "From this study, the following conclusions have been reached:·Using a volume of 1,000 vehicles per day on Hymix Road between the hours of 7 a.m. and 10 p.m, noise emissions have been predicted at the adjoining residences as shown in table 2.
·No attenuation measures are necessary to comply with the Gold Coast City Council noise limits. In all instances, the facade noise levels comply with the relevant noise limit of 63 dBA LA10 (18 hours) applicable to designated haulage routes (which Hymix Road is).
·As there are only changes to the hours of use of the road and not to the volume of traffic, there will be no increase in the LA10 (18 hours) with the proposed application."
The application prompted a total of 104 properly made submissions, which are referred to in Exhibit 10.
The Council refused the application on 7 March 2008 and the reasons for the refusal are expressed as follows:1.‘The proposal is inconsistent with Performance Criteria 11 and 12 - Amenity Protection of the Extractive Industry Domain Place Code. The applicant has failed to address the impacts of intermittent loud noises. It is considered that a significant noise disturbance issue exists and would be exacerbated if the proposed extension of hours was approved. The operation of the activity between 6 p.m. and 10 p.m. will therefore have unacceptable amenity impacts on the existing amenity of the local area.
2.The proposal is inconsistent with Performance Criteria 16 of the Extraction Industry Domain Place Code. It is considered that the noise generated from trucks travelling along Hymix Road would create a noise nuisance which is unacceptable for the hours between 6 p.m. and 10 p.m.
3.The applicant has failed to supply sufficient grounds to approve the development in accordance with section 3.5.14(2)(b) of the Integrated Planning Act (IPA).
4.The proposed extension of hours of operation is also considered to be contrary to the purpose of the Extractive Industry Domain Place Code which seeks to provide measures to minimise environmental harm and to provide criteria for maintaining public amenity.’
The appellant has appealed to this Court contending that the decision of the Council was wrong.
The parties attended mediation and a mediation agreement was reached on the 20th of August 2008. In that agreement, the following is stated: ‘As part of the appellant's modelling, it will look at mitigation measures, if necessary, such as acoustic fencing.’
Mr Ure submits that this amounts to a change of the application. I am satisfied in the circumstances that it does not. I think it indicates no more than a willingness to possibly accept mitigation measures such as acoustic fencing.
Mr Ure submitted that what is proposed now includes acoustic fencing and submits that that is now integral to the application, and amounts to a change in the application, which is more than a minor change within the meaning of section 4.1.52 of the Integrated Planning Act.
The appellant submits that it has not changed its application at all; its application is still an application only for extended hours from 6 p.m. to 10 p.m., and if necessary, it may be prepared to accept a condition imposed on its application by this Court to the effect that it construct an acoustic barrier or fence of about 1.120 kilometres long on Hymix Road for a noise criteria of 60 dBA at a cost of $966,402.
The Council submits that if the application is to be approved, there should be at least a condition associated with a noise criteria level of 55 dBA and an acoustic barrier of 1.298 kilometres long on Hymix Road costing an estimated $1,800,644.
Such a barrier would proceed along Hymix Road at the rear of the rural residential properties situated on the southern side of the road and would separate them from the road. Hymix Road is a haulage road under the control of the respondent. The properties are separated from Hymix Road by Lot 466, a 17 metre wide public and recreation reserve (in the form of a buffer zone) owned by the respondent. For modelling purposes the barrier has been located on the road reserve, that is, between the bitumen edge of the road and the buffer zone.
The owners of some of the adjoining properties made submissions. Those submissions were directed more to noise and dust associated with increased traffic and not to the visual or other effects of an acoustic barrier upon them or their properties. That is because an acoustic barrier was not part of the appellant's application.
Mr Gore Q.C. submitted that the appellant's application has not changed. It is still an application to increase hours from 6 p.m. to 10 p.m., and that what is involved here is a possible condition or conditions on that application were it to be approved, see section 3.5.11 IPA. The possibility of an acoustic barrier as a noise amelioration measure has been raised by the noise experts retained by each party.
Mr Gore submitted that the appellant could not have sought approval from the Council to erect a barrier on the road reserve as part of its material change of use application. He submitted that the Council has no power to consider an application by the appellant for a material change of use involving work on a public road. He submitted that approval could later be sought for ‘operational work’ to that effect, but only if this Court suggested a barrier as a condition of the extended hours sought by the appellant. He submitted that that could be done notwithstanding that it may involve work external to the appellant's land. He referred to the Returned Services League of Australia (Victorian Branch) Incorporated v Moreland City Council (1998) 2 V.R. 406 at 409 - 410 and 417 - 418 and North Sydney Council v Ligon 302 Pty Ltd (1996) 185 C.L.R. 470 at 481. ‘Operational Work’ does include undertaking roadworks on a local government road (section 1.3.5 IPA). Mr Gore did though concede that ‘dealing here with a public road creates unorthodox questions’ and that is clearly so.
It is enough to say at this stage that I am satisfied that no application is made by the appellant for approval to erect an acoustic barrier (on a public road) as part of its extended hours application.
Mr Ure submitted that the appellant is now, in fact, proposing as part of its application a 1.120 kilometre long acoustic barrier to cater for a noise criteria level of 60 dBA, but I am satisfied that that is not, in fact, what the appellant is proposing. It is something which the appellant may be prepared to accept if necessary and if possible. The appellant made no written change to its application and I am satisfied that the suggestion of an acoustic barrier as a noise amelioration measure by its expert witness does not effect such a change to its application.
I am satisfied in the circumstances that there is, in fact, no change to the application.
The issue of an acoustic barrier has arisen as a result of efforts by both parties to re-assess the appellant's application. It is, perhaps, unfortunate for local residents that they were not aware during the assessment process of the possibility of an acoustic barrier as a noise amelioration measure but that does not mean that the application has changed. They are now aware that an acoustic barrier is being considered and some are giving evidence.
For these reasons, I am satisfied that the appellant has established that what is proposed has not changed from what was originally proposed.”The appeal proceeded on the basis that if allowed, the appellant would construct an acoustic barrier of the type determined by the Court on the road reserve with permission from the respondent.
STATE AND LOCAL PLANNING PROVISIONS
State Planning Policy (SPP) 2/07 identifies Nerang quarry as an extractive resource of regional (i.e. SE Queensland, see Map 5) significance to be protected “from developments that might prevent or severely constrain current or future extraction when the need for the resource arises”. The Policy identifies extractive resources of State or regional significance as Key Resource Areas (KRA’s), comprising a resource/processing area, an adjoining separation area and an associated transport route to a major road. It aims to ensure that, as far as practicable, development within a resource/processing area, the separation area of a KRA and the associated transport routes’ separation area are compatible with existing or future extractive industry. The KRA map identifies Hymix Road as the quarry’s “associated transport route” and the KRA Concept envisages a separation area on either side of the transport route. This is the area “needed to maintain separation of people from undesirable levels of noise… produced as residual impacts from the transportation of extractive resources.”
As well as aiming to protect extractive resources of significance SPP 2/07 recognises the need to minimise impact on people.
SPP 2/07 also identifies KRA’s of relevance to the issues raised in this appeal as follows:
Brisbane City – 6 (including 2 with Pine Rivers Shire
and 1 with Ipswich City)
Beaudesert Shire – 1
Gold Coast City – 9 (including 1 with Logan City)
See ex 2, pp150, 152, 157, 170, 171, 173-176, 178-181, 191, 207.
The other State planning document referred to is the South East Queensland Regional Plan 2009 – 2031 (SEQRP). For the purposes of this plan SE Queensland is the region and Gold Coast City is the sub-region with relevant planning scheme provisions.
SPP 2/07 reflects the South East Queensland Regional Plan by providing as follows (ex 2, p95):
“This State Planning Policy is consistent with the SEQ Regional Plan, which aims to protect extractive resources for potential future extraction and their associated transport corridors. The SEQ Regional Plan relies on the State Planning Policy to provide the detailed basis for achieving the aim.”
Mr Vann, the appellant’s town planner, recognised the local, not regional, market when he said (ex 3, para 4.1), after referring to the identification of the Nerang quarry as KRA 66 in SPP 2/07
“The description of KRA 66 recognises that the remaining resource is sufficient for more than 30 years supply at the current rate of extraction, and that it is strategically located for the major markets of the Gold Coast.”
The emphasis is mine.
Transport hours for the Nerang quarry are not addressed by SPP 2/07 but are regulated through development assessment under IPA. Sec 5(1) of SPP 2/07 provides (ex 2, p97)
“5(1) This Policy does not address the detailed aspects of development approval for extractive industries or the details associated with extractive industry operations, e.g. extracting, processing and transporting extracted resources, as such matters are regulated under the Environmental Protection Act1994, and through development assessment under the Integrated Planning Act1997.”
Part 2 of the respondent’s planning scheme contains provisions relevant to desired environmental outcomes and performance indicators and provides, so far as is relevant
“CHAPTER 3 ECONOMIC DEVELOPMENT
5.0 DEO ECON 5
The prudent use of renewable and non-renewable natural resources, having regard to their sustainable management.
5.1 Explanation
The sustainable management of renewable and non-renewable natural resources requires that their harvesting or use have regard to long term needs and that it occurs only where environmental and social impacts can be maintained to an acceptable level. Such resources include good quality agricultural land, materials extracted from the ground (such as rock, sand, soils and gravel), timber and water.
The Planning Scheme can ensure that development proposals, seeking to utilise natural resources, take account of both immediate and long term impacts…5.2Planning Objectives to Support DEO Econ 5
Econ.5.1:to ensure the sustainable use of natural resources, having regard to the capacity of the resource to continue to meet community needs and the environmental and social consequences of its exploitation.
5.3Planning Measures to Support DEO Econ 5
This DEO is further addressed in the Key Strategies for Natural Resources and Energy Conservation. It is also of significance to many Land Use Themes but particularly those for Open Space/Nature Conservation, Rural/Nature Conservation, Agriculture and Community Infrastructure.
It will be largely achieved through the following provisions:·Rural, Extractive Industry and Community Purpose Domains
CHAPTER 4 COMMUNITY WELLBEING
5.0DEO Soc 5
The maintenance of residential amenity, through the minimisation of any environmental harm or adverse social impacts occurring from the construction and operation of commercial, community, tourism, industrial and extractive activities.
5.1 Explanation
Gold Coast City’s competitive strengths are strongly linked to its attractive lifestyle attributes. Residential amenity translates to good quality of life. In a context of competing activities and rapid urban growth, it is important that these lifestyle values are identified and considered in land use and development decision making.
The Planning Scheme is able to provide considerable influence in this regard. Initially, it is able to position the various land uses so as to separate conflicting activities, through the Land Use Themes, domains and LAP provisions. It is then able, through the application of the various codes for assessing development proposals, to further minimise potential conflicts through controls on construction activity, the design and layout of the development and the nature of its operations.5.2Planning Objectives to Support DEO Soc 5
Econ 5.3:to control, where possible, the nature of construction activity and the ongoing operational aspects of development to levels that are appropriate for a reasonable standard of amenity in nearby residential premises.
Pt 3 – Planning Strategy - Div 2 – Key Strategies – Chap 7 – Natural Resources – of the planning scheme provides
“Gold Coast City Council has important reserves of … non-renewable resources. The sustainable management of those resources requires that… the harvesting of non-renewable resources occurs only where environmental and social impacts can be maintained at acceptable levels. This strategy introduces measures intended to conserve the City’s major natural resources, with consequent economic values for the benefit of the community. This strategy therefore seeks to ensure the wise use of existing resources of economic value within the City.”
The emphasis is mine.
Section 1.1 of chap 7 provides
“1.1 Extractive Resources
The main extractive resources exploited in the City include:
·hard rock;
·sand and soil;
·gravel; and
·perlite.
Some of these resources, such as hard rock, are used outside the City, due to their limited availability south of Brisbane. For hard rock, the main resources exist within the Darlington Range south west of Yatala and Ormeau. The Department of Natural Resources and Mines, Mineral and Extractive Planning Unit, has reaffirmed the high value of this resource on a regional scale and has advocated for its protection. Other supplies of sand, soil, gravel and perlite can be found in various parts of the City, including off-stream alluvial deposits and some in-stream deposits.”
Sec 1.0 of chap 10 of Part 3 provides (in part)
“Extractive industry development should manage and minimise its environmental impact.”
Extractive industry sites in the Gold Coast local authority area are indicated on Planning Strategy Map PS-1, Overlay Map OM23.
There are 18 Domains described in the planning scheme. Each of the domains provides specific information on development provisions for any development proposed within that domain.
The purpose of the Extractive Industry Domain Place Code is to “seek to provide measures to minimise environmental harm arising from extractive industry activities and to provide criteria for maintaining pubic amenity”.
Environmental harm is defined (in Part 4) as “any adverse effect or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value. This is defined in the EPA sec 14.”
Secs 14, 15 and 9 Environmental Protection Act 1994 provide in part
“ 14 Environmental harm
(1) Environmental harm is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.
(2) Environmental harm may be caused by an activity—
(a) whether the harm is a direct or indirect result of the activity; or
(b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.
15 Environmental nuisance
Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by—
(a) ….. noise…
9 Environmental value
Environmental value is—
(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety…”
The Performance Criteria (PC) apply to all impact assessable development in the Extractive Industry Domain.
So far as is relevant PC 11(Amenity Protection) of the Extraction Industry Domain Place Code provides
“The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of:
(a) Noise;
(b) Hours of operation;
(f) Visual Amenity.”
No Acceptable Solution (AS) is provided. It is accepted though that to conflict with the planning scheme the detraction must be unacceptable or unreasonable.
In order to “minimise nuisance to adjoining and surrounding development” PC16 and AS16.1 provide that “appropriate hours” for “all extractive industry activities” are:
Mon-Fri 7am – 6pm
Sat and Public Holidays 8am – 12 noon
Sunday Nil
These hours are considered an “acceptable solution” for extractive industry activities. The loading and distribution of material outside these hours can only occur where prior approval in writing from Council has been obtained (AS16.2).
The respondent’s Road Traffic Noise Management Constraint Code and associated Design Level Road Noise Criteria do not, in my view, apply because the appellant’s proposal is not for development adjacent to Hymix Road but involves the impact of increased use of the road on existing residences. The purpose of the Noise Code is to
“regulate development on properties adjacent to…. designated haulage routes.”
and the Code is expressed to apply to
“development located adjacent to… designated haulage routes.”
Natural Resources Policy 1 (NR Policy 1) in sec 2 of chap 7 aims at
“Ensuring minimal environmental and social impact from resource extraction and haulage activity.”
Relevant parts of the policy are
2.1.1EXPLANATION
The extraction of minerals from earth can have significant impacts on the environment and also on adjacent activities. These impacts need to be reduced to acceptable levels throughout the life resource extraction activity…
2.1.2PLANNING OBJECTIVES TO SUPPORT NR POLICY 1
NR1.6 to ensure potential offsite and downstream environmental impacts are managed as part of extractive industry operations.
The term “extractive industry” includes the cartage of extracted materials (Part 4).
This policy is suggestive of a conclusion that noise and visual amenity impacts from extended hours haulage activity may only be acceptable if their impact is minimal.
CONFLICT WITH PLANNING SCHEME
Section 3.5.14(2) IPA provides
“3.5.14
(2) If the application is for development in a planning scheme area the assessment manager’s decision must not –(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
Sub-Section (2)(b) is the relevant provision for present purposes.
Section 3.5.14(2) refers now to “grounds” and not “planning grounds” and “grounds” mean “matters of public interest” and “does not include the personal circumstances of an applicant, owner or interested party” (IPA Sched 10).
The procedure of assessment under sec 3.5.14(2)(b) should not be “undertaken in an unnecessarily formal or mechanical way,” see Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480 at 483.
The assessment process is “substantially” that approved in Weightman v Gold Coast City Council [2003] 2 Qd 441 at 446-447 and 453 and Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273 at p286.
In their second joint report dated 12 September 2008 the acoustic experts said (ex 1, p138) they were considering “the potential for construction of acoustic barriers along part of Hymix Road.” In their third and fourth joint reports dated 10 December 2008 and 18 March 2009 respectively (ex 1, pp140,141) they referred to an acoustic barrier as a means to ameliorate adverse noise impacts.
Before an acoustic barrier entered the equation the acoustic experts disagreed (and still do) as to the noise criteria relevant to the assessment of the truck noise (ex 1, p133). I have said elsewhere in these reasons that I prefer Mr Savery to Mr King about this. Mr Savery also said (ex 1, p135-136) that extended hours would result in an unacceptable adverse impact upon the local area and would intrude adversely into the ambient noise environment experienced by residents thereby conflicting with PC 11 and PC 16. This remains the case.
The appellant’s application still conflicts with the planning scheme notwithstanding its willingness now to construct an acoustic barrier to ameliorate the adverse noise impacts of extended hours.
The proposal conflicts with PC 11 and PC 16. The noise from trucks during extended hours will unreasonably or unacceptably detract from the amenity of the area and increase not minimise nuisance to residents living on the southern side of Hymix Road. It also conflicts with the purpose of the Extractive Industry Domain Code in that “environmental harm” will be caused rather than minimised. It will have these impacts by introducing noise where none now exists.
The appellant agrees that extended hours will have adverse noise effects. The noise experts agree but differ as to the type of acoustic barrier necessary to alleviate or ameliorate the noise and to what effect. The visual amenity experts agree that such a barrier will have visual amenity effects but they will not be unacceptable. There will be noise and visual amenity effects. An acoustic barrier may reduce noise (where none existed before) but in itself will have visual amenity consequences (where none existed before). An acoustic barrier, even one designed for 55d B(A), will minimise not remove noise impacts.
Mr Norling, the appellant’s economic expert, conceded “that the proposed extension of delivery hours would have a negative impact on amenity for the residents with exposure to the haulage route on Hymix Road” (ex 1, p171, para 38. See also his evidence at T3-21). In my view extended hours would by themselves unreasonably or unacceptably detract from the amenity of the local area, having regard to noise and hours of operations and would thereby conflict with the planning scheme.
The barrier will also have an adverse impact on the amenity of the area by placing a large extensive impenetrable fence where none now exists.
In my view the noise and amenity impacts of the proposal, with or without an acoustic barrier, are unacceptable and result in conflict with the planning scheme.
I agree with the following opinions of Mr Adamson, the respondent’s town planner, (ex 13, pp12, 13, 14, 17 and 21)
“The noise will still be audible and therefore will have some impact on the amenity of the rural residential area.
While the erection of the barrier will reduce the level of noise and the barrier will generally be screened from view, there will be an increase in the level of noise and the landscape amenity will be reduced. Ultimately both of these impacts will detract from the existing amenity of the area.
It is suggested that the hours of operation from 6pm (to) 10pm are not appropriate for the delivery of product given that the surrounding land use is primarily rural residential and generally relatively quiet after 6pm.
The noise will be audible and there will be some impact.
Currently no noise from the quarry operation occurs after 6pm which is desirable for the locality given its rural residential character.
It is not accepted that the operation of the quarry from 6pm to 10pm will not have any impact upon the amenity of the residents in the area. It is accepted that measures can be taken to minimise the impact. The preference is to have no impact upon the amenity of the rural residential area unless there is a real need for the extended operation.
The noise from the trucks will still be audible and the barrier will have some impact on the filtered views of the bushland and this is likely to result in the amenity of the area being reduced.”
In his evidence Mr Adamson was somewhat guarded in accepting the advice of the noise experts because of the residential character of the area and the expectations of the residents (T4-57). He correctly described the area as
“primarily a rural residential area…. uninfluenced by lots of traffic movements throughout the night” (T4, 57-58)
In fact there are currently hardly any night time traffic movements. I also accept his evidence (T4-58, 62 and 61) that enjoyment of outdoor areas by residents particularly during summer months might be compromised by night time truck movements; that a high acoustic barrier cannot but have an affect on the amenity of the area and the residents and that truck movements from 6-10pm, a previously quiet time, is likely to impact on or detract from the amenity of the area even with an acoustic barrier.
Mr Vann agreed (T4-55) that it’s likely the noise would be perceptible and that the potential exists for the whole waking time of a person, Monday – Friday, to be impacted by noise from the trucks, reduced by the barrier.
Both town planners agreed (ex 1, p150) that a noise barrier
“would raise visual character impacts… for the residences on the southern side of Hymix Road. These impacts relate to the outlook from residences onto the back of the barrier erected along Hymix Road being unsightly and possibly the views from the residences of bushland to the north being diminished as a result of the barrier being erected.”
I also agree with what Mr Adamson separately said in ex 1, p151 that the erection of a barrier
“will be clearly seen from some properties and will adversely impact upon the rural residential character of these properties” and that the barrier “will most likely diminish views of bushland to the north currently enjoyed by some of the residents.”
The visual amenity experts said (ex 1, pp158, 159 and 160) that the construction of a barrier will
“change the view (the visual outlook) from filtered views across the road (to bushland) to filtered views of the acoustic barrier… but will not result in any unacceptable visual impact to the neighbours.”
They do though have some reservations, as expressed in para 1.18 of their first joint report (ex 1, p161)
“1.18 While the experts acknowledge that some northern views of the neighbours will change with the erection of the barrier, they also recognise that the appreciation of landscape values is based on a continuation of sight, sound and smell.”
In their second report (ex 1, p162-163, para 1.4) they said
“1.4 By way of clarification, the experts agree that in the context of landscape amenity being regarded as a combination of sight, sound and smell, the outdoor use of entertaining areas by residents during the evening hours from 6pm to 10pm may result in landscape amenity being reduced, especially during summer months when such usage is more common. The visual impact (if any) of the acoustic barrier and/or associated screening will not be seen by residents at night, but the noise of passing trucks (whether reduced to 55 or 60 dB(A) by the barrier) may lead to some reduction in the overall appreciation of landscape amenity.”
In their third report (ex 1A, p3) they said
“The experts agree that, as previously stated, the acoustic barrier will be more or less visible to most properties, and in some cases from sensitive areas in those properties. However given the assessment of visual orientation, use and potential to view over the screens in most places, the visual impact is likely to be moderate to low. The existing screening within the public open space area as well as supplementary planting and treatment of the acoustic barrier, will reduce visual impacts to a low classification.”
Mr King agreed (T3-44) that an acoustic fence is required otherwise the noise level would be unacceptable. He also said (T3-46)
“I’m not saying that they won’t notice it. The will notice that there’s a truck going past.”
Francis Bartolo lives at 7 Violet Way (Lot 57) and initially said he would rather night time truck noise than look at a fence (acoustic barrier). He said (ex 16, para 8)
“I enjoy looking at the bushland on the other side of Hymix Road. I do not want to look at a fence.”
His initial view about truck noise was, he said (T3-55,56,57), based on the fact that he thought there would only be a “few” truck movements. When told the anticipated number of truck movements he also indicated opposition on noise grounds.
Phillip Doyle normally lives at 8 Crocus Way (Lot 96) and said (ex 17, paras 3, 4 and 8) that the noise from the trucks using Hymix Road up to 6pm is “currently bearable” (“not too bad, not too intrusive” T3-64) but were he to be able to build a planned dwelling at the back of his property for his daughter
“she would be looking directly at a fence and her vista will be destroyed.”
In evidence he said he can see glimpses of Hymix Road from his patio. From the position of the planned dwelling for his daughter he would, like Mr Bartolo, “look at fence.”
I have looked across Hymix Road from some of the adjoining properties and the view is peaceful and tranquil. An acoustic barrier would detract from that ambience.
The acoustic fence will ameliorate noise where none existed before but will itself create an adverse visual impact and detract from the amenity of the area and thereby conflict with the planning scheme. In saying this I recognise that such a fence is not part of the appellant’s formal proposal but is proposed in response to the admitted unacceptable noise levels which are associated with the appellant’s application to extend transport hours.
The concept of amenity is “wide and flexible” and in the present context may embrace the effect of night time truck noise on the senses and the residents’ subjective perception of the locality (Broad v Brisbane City Council (1986) 2Qd R 317 at 326 per de Jersey J). “The ultimate enquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different ways” (per Thomas J at 319). Some aspects of amenity are “practical and tangible such as traffic generation, noise, nuisance, appearance…” (per Thomas J at 320) and “visual effect” (per de Jersey J at 325) and in this sense the subjective views of Messrs Bartolo and Doyle do have a “justification in objective, observable likely consequences” (per de Jersey J at 325) of noise and the erection of an acoustic barrier.
Noise, where none existed before, and an acoustic barrier where none existed before, amount, in my view, to “obvious negative qualities” (appellant’s submissions, para 73).
Whilst recognising the importance of natural resources and their extraction and Hymix Road as a designated haulage route and the appellant’s submissions, para 78, the planning scheme in PC 16 and AS 16.1 clearly emphasises day time not night time truck movements and PC 11 recognises the need for a proposal (and in this case also an acoustic barrier) not to detract from the amenity of the area.
I think the reasonable expectations of the local community would be that generally day time hours would be adhered to unless sufficient grounds are established to warrant additional hours.
I am not satisfied that extended hours and the construction of an acoustic barrier “is a scenario which should have been entirely consistent with the community’s reasonable expectations” (appellant’s submissions para 80). In fact I think that either, as permanent features, would not have reasonably been expected.
The appellant has provided particulars of the grounds relied upon to justify approval of the application despite conflict with the planning scheme:
“In response to your client’s request for particulars dated 11 September 2008 we advise that, to the extent that it is determined that a decision to approve our client’s application conflicts with the Planning Scheme, our client will rely upon the following grounds to justify approval:
1.The proposed development is consistent with the designation of the subject land as:
(1) an Extractive Industry Resource in the Planning Scheme;
(2) a Key Resource Area in State Planning Policy 2/07 – Protection of Extractive Resources; and
(3) an Extractive Resource in South-East Queensland Regional Plan.
2. The proposed development is consistent with the designation of the route by which the quarry product is distributed as:
(1) an Extractive Industry Haulage Route in the Planning Scheme;
(2) a Transport Route in State Planning Policy 2/07.
3. There is a strong and increasing demand for quarry product, including as a result of population growth in South-East Queensland and infrastructure spending by the State Government.
4. There is an increased demand for the delivery of quarry product outside the current operating hours of the subject quarry to:
(1) assist in meeting the demand for quarry product;
(2) supply concrete and asphalt plants in the locality which operate outside normal business hours;
(3) compensate for the limited storage capacity of concrete and asphalt plants;
(4) assist in achieving construction programs of development projects including major infrastructure projects;
(5) supply development projects which require supply of quarry materials or concrete outside normal business hours to reduce the disruption of day time traffic; and
(6) supply development projects which require continuous mass concrete pours during cooler night temperatures.
5. There are a limited number of quarries able to meet the demand for quarry product due to the exhaustion of old quarries and the difficulties obtaining approvals for new quarries. Moreover, the subject land has the advantage of being well buffered from residential uses.
6. The proposed extension of hours will increase the efficiency associated with the transportation of quarry product including in respect of the size of the Appellant’s truck fleet, man hours required to deliver product and reduced fuel consumption.”
A further ground relied upon is expressed as follows (appellant’s submissions para 4):
“The construction of an acoustic barrier will substantially reduce the noise levels which are presently experienced by residents to the south of the road”.
No issue exists as to the first and second of these grounds but by themselves they are not sufficient. As to the other grounds the economic experts disagree on whether there is a demand or a (significant) need for extended operating hours for this quarry. The fact though that “the subject land” (the quarry) is “well buffered from residential uses” (ground 5) is not relevant to the present issues and ground 6 seems more related to economic and commercial benefits personal to the appellant. The last ground (para [67]) seems to rely on a measure designed to ameliorate noise where none previously existed being likely to reduce existing noise which is not the subject of any complaint.
SPP 2/07 and the SEQ Regional Plan do not bear directly on the present issue of need (associated with demand). In the present context this must of necessity be primarily considered by reference to the respondent’s gazetted local government area and any need relevant to that area. Were it otherwise, there would be no limit to the considerations relevant to an assessment of planning scheme applications and this is precisely what Mr Gore QC submitted should not occur because it would introduce factual enquiries and issues far beyond the scope of what in fact are involved in a consideration of the present application. In my view need relevant to the Gold Coast City has not been established.
In an illustration of the increasing compartmentalisation of issues and expertise in this jurisdiction Mr Vann, an experienced town planner, conceded need as an issue to the economists (preferring Mr Norling) and then because he considered noise and visual amenity issues had been resolved in favour of the proposal by other experts, and without any thought as to whether the planning scheme had any local parameters in relation to need, concluded that need provided “simply some useful background also supporting the proposal” (ex 3, para 5.2.5). As an afterthought he did though consider that the proposal “will provide a significant broader community benefit” (ex 3, paras 5.2.5 and 5.2.6).
I agree with Mr Adamson (ex 13, p16) that
“… the quarry operation is of State and regional significance.”
Mr Vann also summarised the “planning context” of the present appeal as follows (ex 3, para 4.5)
“The current planning instruments relevant to this application at the State, Regional and local level recognise the importance of protecting extractive resources and their haul routes and to manage land use in the vicinity to this effect. These instruments also specifically recognise the subject site as a significant extractive resource and Hymix Road as its haul route and seek to protect these facilities to allow their continued operation.”
Mr Vann then made something of a quantum leap when (in ex 3, para 5.2.1) he referred (as relevant planning considerations) to “ongoing exportation” of the Nerang quarry resource “as a matter of general policy… vital to the future development of our communities”. He sought to disguise the absence of local need by reference to resource protection considerations. The present appeal is not about protecting extractive resources.
I agree with Mr Adamson (ex 13, p14) that limiting activities to current hours is intended (inter alia) to “minimise adverse impacts to the adjoining and surrounding development with respect to noise” and that “the hours of operation should not be extended unless it is demonstrated that there is real need for this to occur given that the performance criteria requires noise to be minimised by keeping appropriate hours of operation”.
The economic experts acknowledged the community need and benefit associated with extended hours of transport for quarry products; they disagree about whether that need should be met from this operation.
The town planning experts agreed (ex 1, p152) that need for the increased operations is a relevant consideration and any such need has to be balanced against the potential for unacceptable impacts and the reasonable expectations of nearby residents. Mr Adamson said need is a relevant consideration to be balanced against any adverse amenity impact such as noise and the visual impact of an acoustic barrier and conceded that if these can be resolved and there is a substantial need for the increased operations that would be an acceptable planning outcome because it would benefit the general community.
Need and community benefit in this sense should primarily be understood in the context of the relevant planning scheme and its parameters. Mr Adamson’s opinion is summarised as follows in sec 3 of his report ex 13, p5:
“The matter of need has also been considered by the economic experts. The experts do not agree on the degree of need for the extended operations, but do agree that there is a demand for night time pours from concrete batching plants and that the continuous supply of material is required to be provided on occasion. The extended operation will be of benefit to the general community, but a real need for the proposal has not been demonstrated.
The adverse impacts from extended hours would not cause the Desired Environmental Outcomes to be compromised but there is conflict with a number of provisions of the planning scheme and insufficient planning grounds have been identified to overcome the conflict.”Mr Adamson seems to equate “general community” with a community wider that the Gold Coast community. At first glance it would appear that he also overstates the need issue by opining the necessity for the appellant to establish a “real need” or a “significant need” for the proposal but in his evidence (T4-65,66) he said that by this he meant that because there is going to be an impact from extended hours (noise and visual even if other experts suggest that impact is not unacceptable, but only with an acoustic barrier) there should at least be a real need for the proposal. In any view he did not, in his evidence, depart from what was agreed in ex 1, p152, para 5. He seemed to speak of “real need” in the same way Judge Brabazon QC spoke of “positive need” in Queensland Investment Corp v Toowoomba City Council [2000] QPELR 262 at para [78].
None of the planning scheme provisions require consideration of regional issues in dealing with the hours of local haulage activity.
Even if one could conclude (and I am unable to do so on the evidence) that the physical well being, services and facilities of the Brisbane community, or the community beyond the Gold Coast may be improved by the delivery of aggregate after 6pm, that would not be a sufficient reason for extending the operating hours of the Nerang quarry. The need for such increased hours for this particular quarry has not been established. Increased hours for the Nerang quarry would not, in my view improve the ease, comfort, convenience and efficient lifestyle of the Gold Coast community. There is, in my view, no existing “current unsatisfied demand which is either not being met at all or is not being adequately met’ by the existing hours. See Isgoro v Gold Coast City Council [2004] QPELR 414 at para [21].
I agree with Mr Coghlin (T4-48) that any South East Queensland demand for extended quarry operations does not require the permanent extension of hours sought for the Nerang quarry; if particular demand requires it a special permit for extended operations could be sought. In my view the evidence establishes no more than this. Isgoro v Gold Coast City Council (supra) recognises that demand is not the same thing as need and that “planning need” is the issue. See also Queensland Investment Corp v Toowoomba City Council, [supra]; All-a-wah Cara Park v Noosa Shire Council [1989] QPLR 157 and Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd.R.347. In my view the evidence does not establish a planning need for extended transport hours.
The appellant relied on Isgoro v Gold Coast City Council [supra] as containing a “concise analysis of the recognised principles of planning need” but the considerations referred to there by Judge Wilson SC are all local not regional. I am unable to agree with the appellant that because the Nerang quarry contains a “regionally significant resource” the present application should be allowed “to meet the increasing demand of the broader community” being a community greater than is involved in the respondent’s local authority area. Local quarry hours are for assessment under the local planning scheme having regard to issues relevant to the scheme area and the scheme community.
The Gold Coast City Council is not required by its planning scheme or by IPA to take into account need (associated with demand) outside its local government area in considering whether to allow an increase in quarry transport hours within its area. The appellant’s argument requires the respondent to assume a regional planning role and it is not able to do that; and nor is the Court.
No one suggests that the Nerang quarry is not a “significant resource of long standing recognised in past and present planning documents” (Vann, ex 3, para 5.2.6). What is suggested though is that this requires the respondent to consider demand external to its area as a counterweight to the lack of sufficient demand within its area as a reason for extending local transport hours (see e.g. Norling ex 1, p172 para 39). In my view the respondent is not able to do that.
The “significant community benefits” relied on by the appellant emphasised a regional customer need, concrete industry efficiency (see also Norling, T3-27, “good for the concreting industry” but the commercial needs of the concrete industry are not the same as the needs of the Gold Coast City community as a whole) and some reduction in peak hour truck movements. In my view these are not reasons sufficient enough to warrant an increase in current transport hours.
With respect to Mr Vann (ex 3, para 6.0) it is too simplistic to say that the resolution of this proposal requires “striking a balance between wider community benefits that arise from the effective utilisation of scarce extractive resources against the extent and severity of local amenity impacts and reasonable expectations of affected residents.”
Also the community benefits Mr Norling points to (T3-21) are regional – South East Queensland – and it does not seem that he is able to do any more than generalise in this respect. There is nothing in his evidence to suggest that the Gold Coast projects listed in ex 27 (and any proposed buildings) cannot be serviced during current hours. The suggested benefits for the Gold Coast City community (see T3-27) are nebulous and non specific and do not in my view establish need sufficient to approve the application despite its conflict with the planning scheme.
Even if it was appropriate to consider benefit to a community wider than the Gold Coast City community and related regional issues I would still be of the opinion that need in a regional sense as a public interest ground has not been established for an extension of transport hours for this quarry. In my view the prime beneficiaries of extended hours would be the concrete/quarry/construction and building industries and the needs of these industries are not the same as those of the community.
The appellant has not established sufficient grounds involving matters of public interest.
I prefer the opinions and evidence of Mr Adamson to those of Mr Vann. I felt Mr Adamson better recognised the issues and his assessment of adverse impact was consistent with objective considerations. Mr Adamson also seemed to better balance the competing considerations and generalised to a lesser extent than did Mr Vann.
The claim by the appellant that the amount of quarry material removed from the quarry would not increase, nor would total volume of truck movements should the application be approved, rather there would be greater flexibility in truck movements across a greater number of hours (see ex 1, p165 and p172, para 42(b)) seemed a little inconsistent with the appellant’s particulars that “there is a strong and increasing demand for quarry product as a result of population growth in South East Queensland and infrastructure spending by the State Government”.
Peter Brownsdon, the appellant’s Regional Manager North, does in fact expect an increase in overall extraction rates from the Nerang Quarry if delivery hours are extended (see ex 1, p182, para 42(b). Were this to occur Mr Coghlin opines (para 42(b)) that this would entail additional truck movements and an increase in related impacts. I think this is possibly so.
It is not possible in this appeal to determine the adequacy of other quarries or batching plants to meet demand (even though Mr Norling sought to do just this, see e.g. ex 1, pp170 and 173, paras 30 and 45; Mr Coghlin did the same, see e.g. paras 48 and 49) and Mr Gore QC recognised this when he conceded (T5-36, 37) that this Court “is not a Court of general inquiry (with) jurisdiction to look at every other site and see what the pros and cons of it are”.
On the other hand I cannot accept Mr Gore’s criticism of Mr Coghlin at T5-36, 37. Mr Coghlin’s views do not require an assessment by the Court of other quarries, special permit situations or batching plants. The evidence is clear that the market is currently serviced by a number of quarries and batching plants located in and around Brisbane and that in the past, given need, special permits have been issued and given need in the future the issuing of such permits is always a possibility. Mr Coghlin went no further than this.
The experts do agree (ex 1, p171, para 37) that “existing batching plants have limited storage capacity and therefore must be regularly replenished during the hours in which they operate.”
The evidence about night work on buildings seemed more related to Brisbane. The joint economic report states (ex 1, p167, para 17):
“Currently the Nerang quarry is the major supplier of Hanson’s batching plants on the Gold Coast while Wolffdene and Ferny Grove generally supply Hanson’s batching plants in Brisbane. In that respect, Coghlin notes that the State Planning Policy 2/07 claims that the Nerang quarry ‘…is strategically located for the major markets of the Gold Coast’.”
The appellant claims there is a need for after hours delivery of aggregate based on a growing market for after hours concrete and the limited supply of quarries. Both experts agree (ex 1, p168, para 24) that “the demand for concrete is growing”. They also agree (ex 1, p171, para 34) that the Nerang quarry is “clearly less convenient to service Brisbane than other quarries.”
I prefer the evidence of Mr Coghlin that the major projects listed in ex 1, pp168-169, para 25 are one-time infrastructure projects. In any event only 3 of the 17 projects listed were on the Gold Coast and they were completed without resort to extended hours. Further, as already mentioned, Wolffdene and Ferny Grove quarries “generally supply Hanson’s batching plants in Brisbane” (ex 1, p167, para 17). About 90% in general of the appellant’s aggregate used at its Brisbane batching plants originates from these two quarries” (ex 1, p167, para 18) Also “quarries located closer to a batching plant generally would be chosen over quarries located further afield” (ex 1, p167, para 19). I also agree with Mr Coghlin that should after hours need be established for a particular project a special permit could be sought for the duration of the project as was done for the past M1 expansion.
Mr Brownsdon agreed (T3-6) that all except 3 of the 20 projects referred to in para 14.1 of his statement had been competed and the two referred to in para 14.2 were in Brisbane. He also agreed (T3-13) that Stanmore Road which services Wolffdene quarry has a significant amount of pre-existing traffic on it.
Steven Thomas, the appellant’s Regional Sales and Marketing Manager, said in his statement
“4.Hanson’s South East Queensland (SEQ) concrete batching plants include plants at Chindera, Burleigh Heads, Tweed Heads, Southport, Labrador, Coomera, Stapylton, Parkridge and Springwood. These batching plants obtain the majority of their quarry product from the Hanson rock quarry at Nerang (Nerang Quarry).
5.Hanson has numerous other batching plants in SEQ, including West End, however, these batching plants obtain the majority of their quarry produce from Hanson’s Wolffdene Quarry at Harts Rd, Luscombe. However if quarry product was able to be transported from the Hanson Nerang Quarry after 6pm these batching plants would obtain quarry produce from the Nerang Quarry as required.”
No other quarry in SE Queensland has extended hours. Mr Thomas agreed (T3-17,18) that if that remains the case construction companies are likely to
“look at supplying themselves or putting storage on their sites because their construction programs are very critical and they must have concrete at night when they need it.”
He also agreed (T3-18) that given enough lead time a one-off extended hours permit could be obtained allowing extended hours.
I am not satisfied that the evidence establishes a need that cannot be met during existing hours or, if proved necessary on occasions, by means of a special permit.
In opening the appellant’s case Mr Gore QC referred to Mr Coghlin’s opinion that any need from time to time can be dealt with by special permits and said (T1-26)
“That is a less satisfactory arrangement from the residents perspective because that kind of approval won’t involve the barrier, just as the M1 extension didn’t involve the barrier.
This is a more formalised, structured situation that, on the appellant’s case is better from the residents’ point of view and obviously from the appellant’s point of view as well. Win/win, as they like to say, your Honour.”That the residents didn’t object to the M1 permit doesn’t mean they were accepting of ongoing noise associated with extra hours.
The appellant appears capable of servicing the Gold Coast from its Nerang quarry by “preloads” to its batching plants and notwithstanding the double handling involved (which may be less than ideally efficient) this appears able to cope with “a growth in demand for concrete both in volume and in night pouring operations” (ex 1, p170, para 29).
The fact that the Nerang quarry is thought to be the best suited of four Hanson owned quarries to an increase in transport operating hours (ex 1, p170, para 30) is no reason to increase those hours. It is also the case, as I have said, that the Nerang quarry is “clearly less convenient to service Brisbane than other quarries” (ex 1, p171, para 34).
I accept that existing batching plants (most of which can operate 24 hours per day, see e.g. T3-17) must be “regularly replenished during the hours in which they operate” because of their limited storage capacity (ex 1, p171, para 37 and Coghlin T4-40). An obvious solution to this would be the possible acquisition of other storage sites (rather than expanding existing sites which does not appear possible) near batching plants having an ability to deliver after hours.
I am not satisfied that demand is such that extended hours are needed considered either by reference to regional or local need. I am not satisfied that any demand is more than occasional or that existing resources and facilities are not capable of satisfying this demand even though operations may on occasions be less than ideally efficient and perhaps more expensive.
Both economic experts agreed that demand for concrete and aggregate in South East Queensland is increasing and that the construction industry would benefit by the delivery of aggregate after 6pm. I agree with Mr Coghlin and not Mr Norling, that it has not been established that this demand be met by increasing the hours of the Nerang quarry. Most of the large infrastructure projects identified by the appellant – past current and future – are in Brisbane not the Gold Coast. The appellant’s Wolffdene quarry is 24 kilometres closer to the Brisbane CBD and its quarry route is more major and public than Hymix Road. In fact Mr Norling agreed (T3-24) that there would be additional benefits in servicing the market from the Wolffdene quarry rather than the Nerang quarry.
I accept that a number of Gold Coast projects are identified in the South East Queensland Infrastructure Plan and Program 2009 – 2026 (ex 27) but I am not satisfied that associated demand for them cannot be met by existing hours or if justified special permits for finite periods. In any event the Nerang quarry is not the only Gold Coast quarry.
AN APPROPRIATE ACOUSTIC BARRIER
In case I am wrong about the failure of the appellant to establish sufficient grounds to allow the application despite conflict with the planning scheme I should express a view about an appropriate acoustic barrier.
Mr King says an acoustic barrier satisfying a 60dB(A) criteria, see ex 7A fig 3, is sufficient whereas Mr Savery says the criteria should be 55dB(A), see ex 7A fig 1.
Modelling is continuing and it may be that there will be an increase in barrier height of 0.5 metre. If there is such an increase in height there will be a greater visual amenity impact.
Recognising the cost implications and the appellant’s submissions, para 56, I nevertheless prefer Mr Savery to Mr King for the following reasons
(1) Mr King’s average L90 of 46.4 does not make any allowance for the 6-10 pm period. The average adopted by Mr Savery is more realistic.
(2) The respondent’s Road Traffic Noise Management Constraint Code and associated “design level road noise criteria” (63dB(A) L10 (18 hr) limit and adjusted level of 65dB(A)) do not apply to Hymix Road. To the extent that Mr King relied on the code criteria as appropriate (see ex 1, p133) I cannot accept his evidence. He did though concede (T3-92 and T4–09) that
“In terms of measurement of impact the L10 18 hour, or L10 in periods when we have low traffic flows or less than 50 vehicles an hour, 50 vehicle movements an hour is not overly representative… I wouldn’t say its utterly unreliable. It still provides an indication but… the calculation of road traffic noise is stated to be not appropriate for vehicle flows for 18 hrs for less than 1,000 vehicles or less than 50 vehicles per hour…
I do agree in terms of the calculation of road traffic noise it states that (with) less than 50 vehicles per hour or less, than 1,000 vehicles per 18 hours it’s not specifically relevant”.
Ex 22 itself states its unsuitability for a road like Hymix Road with very low traffic numbers: “Calculations of noise level for traffic flows below 50 veh/h or 1,000 veh/18 hour day are unreliable and measurements should be taken when evaluating such cases.”
See also ex 1, pp134-135 and ex 12, paras 5.3-5.6.
(3) I think that the exceedence levels in ex 24 better represent the likely actual situation and support 55dB(A) rather than 60dB(A).
(4) An exceedence of 15dB(A) over background can cause sleep disturbance, ex 28, T3-43 (King)
(5) I thought Mr Savery better appreciated the intermittent non-continuous loud tonal nature of the truck noise than did Mr King and its difference from other more usual types of road noise. See ex 12, para 5.5 in particular the factors causing or contributing to noise annoyance, which I accept.
(6) There are no current vehicle movements of any significance on Hymix Road between 6pm and 7am Monday to Friday.
(7) The evening period is a more sensitive daily time period for the amenity of residents near Hymix Road, compared to the day period (ex 1, pp135-136 and ex 12, para 5.6) and I thought Mr Savery better recognised this than did Mr King.
(8) I accept Mr Savery’s reasons (ex 12, p15) against 60dB(A).
(9) The fact that there are “no known standards or research data related specifically to truck passby noise levels during the evening period that support the notion that a background plus 5dB noise limit is appropriate to protect amenity from detraction by single events such as passbys” (ex 12, p14) warrants erring on the side of caution. “There is no specific statutory noise criteria which applies to maximum noise level from a haul truck passing on a designated haulage road that is a public road” (ex 1, p142, see also ex 1, p143, para 4).
(10) For the reasons given by Mr Savery (ex 1, pp134-135) Hymix Road is not a normal Monday to Friday road. The appellant (submissions para 55) conceded this in terms of its dominant role as access only to the quarry and the fact that therefore it does not carry much traffic after hours.
(11) I prefer Mr Savery’s opinions as to conflict with PC11 and PC16. These are the appropriate criteria to assess the proposal against not the Noise Management Code. To this extent Mr Savery’s opinions accord with my own.
(12) Mr Savery’s opinion is supported by the visual amenity experts (ex 1, p161, para 1.19 and p163, para 1.4).
(13) Because Hymix Road has a low volume of traffic compared to a major road, defined hours of use and most traffic is heavy vehicles the model used by both experts “is not a usual road model” (T3-89) and in these circumstances it is again appropriate to err on the side of caution.
(14) Another reason for caution is expressed by Mr Savery in ex 13, para 6.1
“The noise modelling conducted to date does not yet accurately predict the noise levels resulting from truck operations on Hymix Road. Any conclusions regarding noise barrier dimensions must therefore be considered as preliminary only and subject to further review as the noise model is further improved and developed.” See also paras 6.2-6.9.
RESULT
The appeal will be dismissed.
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