Hymix Australia Pty Ltd v Gold Coast City Council
[2005] QPEC 20
•31 March 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hymix Australia Pty Ltd v Gold Coast City Council & Anor [2005] QPEC 020
PARTIES:
HYMIX AUSTRALIA PTY LTD
Appellant
v
GOLD COAST CITY COUNCIL
Respondent
and
THE STATE OF QUEENSLAND
Co-RespondentFILE NO/S:
590 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Southport
DELIVERED ON:
31 March 2005
DELIVERED AT:
Brisbane
HEARING DATE:
15, 16 February 2005 followed by written submissions (23 February)
JUDGE:
Robin QC
ORDER:
Appeal allowed to vary conditions
CATCHWORDS:
“Conditions appeal” by developer desirous of operating a proposed concrete batching plant 24 hours a day seven days a week – conditions of Council’s approval limited hours, effectively compelling applicant to make a new application when it needed to implement its planned Stage 2 expansion – issues of noise from batching operations on site and from heavy vehicles carrying raw materials and mixed concrete to and from site – site so zoned in Albert Shire Planing Scheme (at time of application) that “medium density” was a permitted use not requiring Council consent - “rezoning” of nearby industrial land as residential created potential for noise disturbance of residents – held that it was preferable to clarify the situation now to give developer and future residents certainty, rather than require new application for Stage 2 – conditions should require strict compliance by developer with “medium density” noise emission standards, also the new standards in the Gold Coast Planning Scheme, and limit use of public roads pending hoped-for construction of an industrial collector road as alternative access – Pacific Motorway nearby - significance of Main Roads mandated conditions requiring noise attenuation measures (pursuant to registrable covenants) in houses constructed on nearby residential allotments considered.
Integrated Planning Act 1997
COUNSEL:
Mr Cronin for Appellant
Mr Ure for RespondentSOLICITORS:
Hickey Lawyers for Appellant
King & Co for Respondent
On the face of things, this is a “conditions” appeal under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA). It is an appeal by way of hearing anew in accordance with s 4.1.52, in which the Appellant bears the onus of proof (s 4.1.50). The development application made on 1 November 2002 when the applicable planning scheme was the Albert Shire Planning Scheme of 1995 was changed on 19 September 2003 (by when the Gold Coast Planning Scheme 2003 had been adopted); it is within ss 6.1.29 and 6.1.30, but no further reference to them need be made. Several aspects regarding contentious conditions have been resolved, and the Second Respondent, State of Queensland has effectively been able to withdraw from the appeal. Revised conditions for inclusion in an order of the court have been worked out.
The Appellant’s written submission described the appeal as:
“against the decision of the Respondent made on 26 August 2004 and contained in a Decision Notice dated 6 September 2004. The application was for a material change of use (Code Assessment) for a medium industry (Concrete Batching Plant) and ERA No 62 (Concrete Batching) and ERA No 11a (Petroleum Product Storage) in which the Appellant was the Applicant on land situated at Lot 1 on SP 102549 at Old Coach Road, Upper Coomera”.
I accept Mr Cronin’s submission for the Appellant that the conditions to be imposed by this Court (like conditions imposed by the Council) must satisfy the provisions of s 3.5.30 of the IPA, also that,
”As this is a hearing anew, it is not necessary that the Appellant show that the conditions imposed (by the Council) are unreasonable or irrelevant, because the Court is now in a position where it can impose such conditions as it sees fit.”
I think the foregoing proposition is correct notwithstanding that the typical conditions appeal is one in which conditions set by a local government as assessment manager ought ordinarily survive appeal by the developer if they satisfied s 3.5.30. Here, as Mr Cronin submits,
“The application was approved only in part because what was clearly sought from the Council was the right to make deliveries to the plant in the evening and in the night time. That was not approved by the Council although it did not express it as a rejection but rather imposed conditions that have the effect of refusing that part of the application … this court is entitled to make up its own mind. The court is not limited to merely reviewing the Council’s decision. The evidence which was placed before the court is obviously more extensive than the evidence placed before the Council.”
Both logic and experience in many contexts confirm that a range of outcomes all may qualify as “reasonable”, or “not unreasonable”.
The Appellant is a well-known operator in the concrete industry. It needs to establish batching plants located as conveniently as possible to construction sites, where raw materials are brought and mixed into concrete of appropriate specifications for loading onto the familiar vehicles which transport the mixed product to construction sites for pouring there. The original application related to much more of the land described above. It is now confined to part of Lot 1 (which extends to the Pacific Motorway in the east), namely the south western corner. A southern neighbour would be a Boral batching plant, recently approved.
The land was zoned General Industry under the Albert Scheme. The Intent of the zone is set out in 7.3.1.1 as follows:
“The General Industry Zone is intended to provide for the full range of industrial, manufacturing and storage activities involving relatively large parcels of land, providing appropriate services are available, generated waste can be disposed adequately, and where the development of such uses does not adversely affect the amenity or function of surrounding zones. The zone is also intended to accommodate large scale industrial uses which, by reason of the process involved, the method of manufacture, or the nature of the goods or materials used, manufactured or stored, requires that they be carefully controlled by appropriate location and conditions of development, including the provision of extensive buffer areas. Due to the limited availability of suitable general industrial land, it is intended that use for the purposes of retailing and offices will be discouraged. Council will have particular regard to the Shire Image objectives of the Strategic Plan in considering applications for consent development.”
The theme of the italicised words is taken up elsewhere. The descriptions of preferred dominant land uses in the Strategic Plan in 1.4.13.1 associate the following Intent with “industry”:
“Within industry areas, it is intended to include local areas and corridors of open space where appropriate, and to exclude from more sensitive locations those industrial activities having potentially greater environmental impact.”
1.4.13.3 sets out Industry Objective 2:
“To preclude as far as possible interference with industrial activities caused by non-industrial traffic and the proximity of non-industrial land uses - implementation of which includes the following:
(i)Development in accordance with the strategic plan will tend to separate industrial and residential traffic, as new industrial and residential development have been physically segregated, and road systems serving them made reasonably independent.
(ii)Rezonings to allow industrial development in residential areas will be refused, other than in accordance with Urban Residential Objective 10.
(iii)Development of land for residential or other non-industrial purposes near existing or proposed industrial areas will be permitted only where an adequate buffer area can be provided. The width, treatment and nature of the buffer area will be determined taking into account the compatibility of the proposed activity with the industrial development.
(iv)Non-industrial uses will not be permitted to locate within industrial areas except for the following …”
Implementation of Industry Objective 2 (to promote a high standard of site development) includes the following in 1.4.13.4(i):
“In considering any application for rezoning, permitted development subject to conditions, or consent development the Council will take into account the likely effect of the proposed development on the surrounding area and may impose particular requirements to ensure that amenity is protected.”
(It may be thought odd that the difficulties confronted by the Appellant’s application include some attributable to the “rezoning” for residential purposes of what was formerly General Industry zoned land immediately across Old Coach Road.)
The Table of Development for the General Industry Zone provides in column 2:
“Permitted Development subject to Conditions
Development which does not require the consent of the Council which is subject to conditions.
Development for any of the following purposes where the development is or includes the erection of a building or other structure other than by way of minor building work – … Medium industry …”
Thus, “Medium Industry” is a permitted use. There is a definition of “Medium Industry” which is satisfied only if defined standards set out in a schedule are met. The definition is:
“Medium industry” - Any premises used or intended for use for any industry not specifically defined elsewhere herein which complies with the standards of Schedule B. The term includes crushing or screening stone, gravel or sand; handling gravel, sand or crushed stone by a mechanical installation; and any industry in Appendix II to the heavy industry definition which meets the requirements of Schedule B.
Schedule B
(i)Shall not result in noise levels at the boundary of any allotment within a Residential Zone or the Future Urban Zone that exceed the following:
Weekdays 0700-1800
Saturdays 0700-1200
L10 60db(A)
L90 50db(A)
Weekdays1800-1200
Saturdays1200-2200
Sundays0700-2200
L10 50db(A)
L90 40db(A)
Night2200-700
L1045db(A)
L9040db(A)
(ii)shall not result in noise levels at the boundary of any allotment within a zone other than those listed in (i) and (iii) that exceed the following:
Weekdays0700-1800
Saturdays0700-1200
L1065db(A)
L9055db(A)
Weekdays1800-1200
Saturdays1200-2200
Sundays0700-2200
L1055db(A)
L9050db(A)
Night2200-700
L1050dba(A)
L9045dba(A)
(iii)shall not result in noise levels at the boundary of any allotment within a General or Waterfront Industry Zone that exceed the following:
Weekdays0700-1800
Saturdays0700-1200
L1070db(A)
L9060db(A)
Weekdays1800-1200
Saturdays1200-2200
Sundays0700-2200
L1060db(A)
L9050db(A)
Night2200-700
L1055db(A)
L9050db(A).
(iv)…
(v)…
(vi)…”
Thus, under the Transitional (now superseded) Planning Scheme, a development satisfying the definition of Medium Industry might be subjected to conditions, as a “column 2” development, but did not need the local government’s consent. Whether the definition would be met has been contentious, but the Council came to accept that it can be.
The Council’s concern flows from the change in the “zoning” of land on the western side of Old Coach Road opposite the Appellant’s site, from General industry, which it formerly shared with the site and land extending south from the site. There has now been developed there on 77 ha a very large residential estate called Coomera Springs. It will not be long before actual building starts on hundreds of home sites there. The Council is justifiably apprehensive that it will become the recipient of complaints concerning noise attributable to the proposed batching plant, and demands to do something about such noise. On the face of things, a concrete batching plan and residential development are not ideal neighbours. The Appellant’s development rights must be respected, however; its proposals accord with the “traditional” zoning.
As noted, only part of Lot 1 in the south west corner will be used for the batching plant. That corner will be severed by an industrial collector road to carry traffic associated with development on the remaining industrial land. The road, located to keep that traffic separate from the burgeoning residential development in the area, will begin to the south (avoiding the existing residential development), roughly bisecting the tracts of land between Old Coach Road and the Motorway as it leads north before turning to the west in Lot 1 to link with a large roundabout already constructed in Old Coach Road. The Appellant and others have provided or will be providing the necessary land. While confidence may exist that the industrial collector road will be there before too long, the situation still is that acquisition of the land needed in the south depends on future compulsory acquisition, or dedications in accordance with development approvals not yet applied for. When and if the new road becomes a reality, the Council’s noise-related concerns regarding the Appellant’s batching plant will be removed, assuming use of that road. The concerns regarding activities in the batching plant proper, which will be surrounded by a high bund wall, have been substantially addressed. The condition under appeal is:
“Hours of operation are limited to 7:00am to 6:30pm Monday to Saturday and 9:00am to 4:00pm Sunday. The applicant may, however, commence operation at 6:00am Monday to Saturday, if it can be adequately demonstrated by means of an acoustic report prepared by a suitably qualified person, that external traffic movements at the roundabout proposed on Old Coach Road and along Kristins Lane, and noise associated with internal noise generating activities, between 6:00am and 7:00am on days of operation will not, to the satisfaction of the Chief Executive Officer, exceed any of the following:
NOISE LIMITS AT A NOISE SENSITIVE PLACE PERIOD Noise level at noise sensitive place measured as the adjusted maximum sound pressure level (LA max adj T) 7am – 6pm Background noise level (LA bg T) + 5 dB(A) 6pm – 10pm Background noise level + 5 dB(A) 10pm – 7am Inaudible NOISE LIMITS AT A COMMERCIAL PLACE PERIOD Noise level at commercial place measured as the adjusted maximum sound pressure level (LA max adj T) 7am – 6pm Background noise level (LA bg T) + 10 dB(A) 6pm – 10pm Background noise level + 10 dB(A) 10pm – 7am Background noise level plus 8 dB(A)
The submitted acoustic report must include sufficient details concerning ambient noise levels in the area between the proposed external hours of operation and including details of the noise level assessment including the calculations and methods used to arrive at the stated noise levels.
In particular, readings of ambient noise levels in the area must be accompanied with a detailed description of weather conditions, time, date and activities occurring within the area at the time of testing. This is to preclude any existing noise activities in the area that are temporary in nature (eg construction activities) or any other activities, from contributing to what could reasonably be described as inaccurate readings or a misrepresentation of likely background noise levels that are likely to be experienced in the area under normal and lawful conditions.”
While enjoying no special status that would entitle it to prevail unless displaced by sufficient arguments from the Appellant’s side, Condition 9 nevertheless may be a useful starting point for discussion.
The Appellant has applied to operate 24 hours a day, but night time operations would be limited to deliveries (along public roads) and unloading of raw materials, except on rare occasions (a recent one instanced was construction of the Springwood Busway) when night time deliveries of concrete to construction sites were needed. One would expect those occasions (which could be the subject of special permission) to be rare. Builders and their workforces are not likely to embrace shiftwork as a general rule. There will not be much overnight batching. The evidence as to whether there were or were not other batching plants entitled to operate 24 hours per day was unsatisfactory. The Council certainly failed to make out its assertion that they were a rarity. The efficiency arguments for allowing longer hours are clear: they include maximising use of trucks and minimising of vehicle congestion inside the batching plant proper (which includes a safety aspect). The Appellant’s submissions concede conditions are appropriate that:
“(a)no batching occur outside the hours of 5.00 am to 6.00 pm Monday to Friday and 5.00 am to 4.00 pm Saturday;
(b)batching may occur outside the above hours only with the prior written approval of the Chief Executive Officer or his delegated officer and only then when the Appellant establishes that:
(i)the application is for a specified period with respect to a project that cannot readily be supplied with concrete during the hours mentioned in paragraph (a) above;
(ii)residents affected by the proposal are each given written notice of the proposal and of the length of time including the hours of the day and the days of the week on which the out of hours batching is to occur;
(iii)the Appellant complies with all reasonable conditions imposed by the Respondent with respect to such out of hours batching.”
The Appellant’s application covers not only its immediate plans for the batching plant, but also “Stage 2” which in about 2009-10 will nearly double the initial maximum possible production of about 50,00m3 per annum (a maximum that will take a few years to be reached). The Appellant says that night time deliveries of raw materials are not required during Stage 1 (except in special circumstances, presumably). The Council’s approach is that Hymix should effectively limit its application to Stage 1, than apply again for Stage 2, when the situation is clearer. The industrial collector road may be in use, for example. My view is that the Appellant is both fully justified and completely reasonable in seeking now certainty that it will be able to operate the Stage 2 Plant when the time comes; this will require ability to receive raw materials at night. It would be difficult to defend the investment in Stage 1 if Stage 2 might be blocked. Whether or not a new application was code assessable (so that members of the public and residents of Coomera Springs were not entitled to make submissions), there seems to me a high likelihood that, when the time comes, considerable pressure may be put on Council to prevent expansion of the batching plant. That strikes me as unfair to the Appellant, whose plans are ready now.
In my opinion, the desirability of certainty being achieved now is manifest and it is not only certainty from the developer’s point of view. Population growth in South East Queensland continues apace. Coomera Springs will quickly fill up with new residents. Their expectations are important. It is unfair to present the batching plant to putative newcomers to Coomera Springs as an activity with strictly limited hours of operation, and then confront them with the prospect of 24 hour operations. Things are better worked out now so that people will know where they stand, and can plan accordingly.
The Pacific Motorway already constitutes a pervasive generator of noise in the area, levels of which will undoubtedly increase. The Main Roads Department have sought to forestall or limit complaints by requiring that the development of Coomera Springs be conditioned upon registrable covenants being put in place to require soundproofing of defined specifications in any residences on 100 or so identified lots closest to the Motorway, and (necessarily) closest to the Appellant’s Batching Plant. Those compulsory noise attenuation measures will be helpful in respect of noise emanating from or associated with the batching plant. It was not contentious that compliance with the noise attenuation measures required by Main Roads would result in acceptable acoustic amenity for affected residents who kept their windows closed – which not all residents will do at all times. That consideration apart, the acoustic amenity of residents outside their sealed houses should not be forgotten. The court was told that approval has been given for a “truck stop” across the industrial collector road from Hymix’s plant – another generator of significant noise, one would think.
A “Conclave of Noise Experts” constituted by Mr Rumble (engaged by the Appellant) and Mr King (engaged by the Council) produced a helpful report which indicated agreement on the following points:
“A.1 The noise issues associated with this application can conveniently be separated into two categories:
(a) noises associated with operations carried out inside the bunded enclosure, and
(b) noises resulting from Hymix vehicles on public roads.
These two categories involve different operating parameters and different noise criteria.
A.2The noise criteria contained in Development Condition 9 are not appropriate for this application.
A.3Appropriate criteria for continuous noise emissions would be as follows:
Time of Day Noise Limit Daytime (7am to 6pm) LA max adj ≤ LA bg + 5dBA Evening (6pm to 10pm) LA max adj ≤ LA bg + 5dBA Night (10pm to 7am) LA max adj ≤ LA bg + 3dBA Where LA max adj refers to the average maximum noise level measured at a noise-sensitive receptor premises and adjusted as necessary to account for impulsiveness or tonality. LA bg refers to the background noise level, measured at the receptor premises as the LA90 exceedance level in the absence of the subject noise.
A.4For intermittent or transient noise sources, the appropriate criteria are:
For the day and evening period (7am to 10pm) the comparison of like parameters test shall apply. The noise emissions from the subject source, when measured at any noise-sensitive receptor premises, using an appropriate and relevant noise metric (LA), shall not elevate the ambient noise level in the same metric by more than 3dBA.
For the night period (10pm to 7am) the sleep disturbance criterion shall apply as prescribed in the User’s Guide to the EPP (Noise).
A.5In relation to the noise emissions from the batching plant per se, it is possible to meet the appropriate and relevant noise criteria through the implementation of appropriate noise control measures of the types outlined in the Appellant’s noise reports. Mr King did not necessarily endorse the noise emission levels predicted in the Rumble reports as he has not yet had an opportunity to check the calculations. However he agreed in principle that the noise control measures described were in general capable of achieving the desired outcomes.
A.6In relation to the noise generated by Hymix vehicles on public roads, the main concern is for future residents of the Coomera Springs residential estate on Old Coach Road. Specifically, the concern relates to proposed operations in the night period. The noise concerns are exacerbated by the potential use of Jacob brakes (engine exhaust braking).
A.7If Hymix agreed to implement a management directive to prohibit the use of exhaust brakes within residential areas, one of the concerns about vehicle noise would disappear.
A.8If Hymix agreed to implement a curfew on the sue of Old Coach Road and confine its vehicle movements to the Industrial Connector Road between the hours of 10pm and 7am, the remaining concerns about vehicle noise would also disappear.
A.9If the use of the Industrial Connector Road at night were not agreed, then the noise issues would revert to whether the Hymix trucks comply with the sleep preservation criteria.
A.10It is understood that the development conditions for the Coomera Springs residential estate requires covenants on the lots to enforce appropriate design of dwellings to control the intrusion of traffic noise from the Pacific Motorway. Such noise control measures would be equally effective in controlling noise intrusion from traffic on Old Coach Road, including Hymix vehicles. With such measures in place, intruding noise levels into the homes would meet the sleep preservation limits.
A.11If residents close to Old Coach Road choose to keep their windows open, the noise control measures built into these dwellings would be ineffectual. The noise from Hymix trucks would exceed the sleep preservation limits, as would noise from the Motorway. Since Hymix trucks would be identifiable and Motorway traffic essentially anonymous, residents could complain about the Hymix trucks.”
While the court may not be bound to go along with agreement reached by experts (there may, for example, be evidence of lay persons which seems more compelling), there is no reason here telling against the court’s adopting those considered views. A.2 disposes of the Council’s main argument that the Appellant has failed to discharge the onus upon it to show that Condition 9 does not satisfy s 3.5.30 of IPA.
The Conclave report concluded :
“The experts could not agree on whether it is necessary or valid to apply a constraint on Hymix vehicles using Old Coach Road at night to accommodate a possible complaint by a resident who chooses to open windows and negate noise control capabilities built into the dwelling. This matter was considered to be outside the area of noise expertise.”
In this regard the court comes down in favour of the approach more protective of future acoustic amenity of Coomera Springs. More generally, given that the residential amenity of hundreds of households in Coomera Springs requires to be considered, thanks to past planning decisions, the Appellant’s development should be subjected to the strictest conditions that the planning instruments call for, so that exacerbation of the situation in an already noisy environment does not occur. This includes the requirements for a medium industry under the Albert Scheme of 1995, also the provisions of the Gold Coast Scheme of 2003, which came into effect on 18 August 2003. The Appellant and its expert, Mr Rumble agree that the noise limits set out in the Industry 2 (Low Impact) Domain Place Code at PC 15 for which acceptable solutions are identified, provide a relevant statement of criteria to be applied.
The court was referred to:
“
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS ENVIRONMENTAL MANAGEMENT PC15
All activities undertaken on sites within the domain must not adversely impact the surrounding ecological systems, having regard to:
(a) water quality;
(b) air quality;
(c) soil quality.AS15.1
The emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste products, grit, oil or other potential impacts are restricted or managed to levels that do not cause discomfort or disturbance to users of adjoining land.AS15.2 …
AS15.3 …”
and
“
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS HOURS OF OPERATION PC17
All industry activities must be undertaken within appropriate hours, to minimise nuisance to adjoining and surrounding development.”AS17
The industrial activity operates between the hours of 6am to 10pm Monday to Saturday.
Of course, such “acceptable solutions” when set out do not represent the only ways of achieving the desired performance criteria. PC 15 and PC 17 above were placed before the court for purposes of comparison. They relate to the Industry 1 (High Impact) Domain. It was accepted that to the extent the new planning provisions ought to be applied, the performance criteria for the Industry 2 (Low Impact) Domain were the relevant ones in respect of amenity protection, environmental management and hours of operation; these provide:
“
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS AMENITY PROTECTION PC13
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;
(c) traffic;
(d) lighting;
(e) signage;
(f) visual amenity;
(g) privacy;
(h) odour and emissions.AS13
No acceptable solution provided.PC14
The proposed development must take into account and seek to ameliorate any negative aspects of the existing amenity of the local area, having regard, but not limited, to the existing impact of:
(a) noise;
(b) hours of operation;
(c) traffic;
(d) lighting;
(e) signage;
(f) visual amenity;
(g) privacy;
(h) odour and emissions.AS14
No acceptable solution provided.PC15
The noise generated from the proposed use must not detract from the amenity of the area or surrounding residential areas.AS15
The industrial activity does not exceed the following noise levels:
Weekdays 7am – 6pm L10 60db(A) Weekdays 6pm – 10pm L90 40db(A) Saturdays 7am – 12pm L90 50db(A) Saturdays 12pm – 10pm L10 50db(A) Sundays 7am – 10pm L10 45db(A) Nights 10pm – 7am L90 40db(A) HOURS OF OPERATION PC19
All industry activities must be undertaken within appropriate hours, to minimise nuisance to adjoining and surrounding development.AS19
The industrial activity operates between the hours of 7am to 7pm Monday to Friday.TRAFFIC PC24
The traffic and parking generated by the proposed industry on the surrounding road network must not result in unacceptable impacts on adjacent land and local road users.AS24
A traffic impact analysis has been undertaken by a suitably qualified and experienced person which identifies the expected traffic movements generated by the proposal, any associated impacts on the road network, and any work that will be required to address the identified impacts.”
Attention was devoted during the appeal hearing to this aspect, which was covered in the written submissions supplied by Mr Cronin as follows:
“5.4Mr Rumble analyses each of these measures with respect to the batching plant and with respect to the road noise. He conceded that the aggregation of the predicted noise emissions at the future residences will be between 48 and 49dB(A). The point being made by the Respondent was that at night time on Sunday the L10 was 45, whereas these levels would be over that. However there will be no activity at the plant or by way of deliveries to the plant on a Sunday.
5.5These points need to be considered in the light of the evidence of Mr King and Mr Rumble that the noise from the batching plant was simply a matter of stating the relevant criteria and the necessary measures being adopted at the batching plant to achieve that criteria. As indicated earlier, it is not intended that there be batching in the evening or night time nor on a Sunday. Accordingly, the criticism made that the levels would exceed the L10 on a Sunday are without foundation. There is no suggestion that there would be any activity on that day other than by special application or permit referred to earlier in these submissions.
5.6Mr Rumble’s assessment is at page 13 of his report and he comes to the conclusion that the noise emissions from the batching plant would meet the criteria nominated in the Planning Scheme and would satisfy the statutory requirements. It is therefore appropriate that the statutory requirements be those which are the current statutory requirements set out in the 2003 Planning Scheme. It would be ironic if the appeal were refused on the basis that the 1995 Planning Scheme requirements of Medium Industry could not be achieved whereas the 2003 Planning Scheme requirements could be. The restrictions in the Planning Scheme are not mandatory although they carry considerable weight.
5.7Reference was made by the Respondent to various provisions of the Albert Corridor Development Control Plan and the Strategic Plan relating to amenity considerations in relation to residential properties from industrial use. There is no issue about that. Hymix does not say that it should be permitted to cause deterioration in the amenity. What it does say is that it is unrealistic to consider that aspect without regard to the noise attenuation covenants imposed upon the Coomera Springs land.”
Assuming the Appellant’s intentions are and remain as stated, it could not be concerned if the former Medium Industry limits are applied in their full rigour, or if measures envisaged in the Strategic Plan provisions and the new Coomera Local Area Plan (which in Amenity Protection PC 31 and PC 32 reproduce PC 13 and PC 14 set out above) are insisted upon. Given the extraordinary co-location of industrial and residential developments here, with Coomera Springs in a Residential Domain, I do not accept that compliance with the 2003 Standards should be allowed to excuse the Appellant from compliance with those that strictly do apply because they were current at the time of the application – indeed, they are crucial to the Appellant’s coming within “Medium Industry”. Conditions should be formulated to cover both the 1995 and the new requirements.
It seems unsound to exempt a development from having to attenuate its own noise (or any) emissions on the basis that measures are anticipated to be put in place in connection with some other development which, if fully implemented, would render unnecessary controls or conditions the developer would otherwise have to accept. This would be so equally whether the measures are the responsibility of other developers or somehow are made the responsibility of persons not yet identified, such as the future owners in Coomera Springs who wish to build and/or occupy new residences on lots there which become the subject of a registrable (or registered) covenant. I do not suggest that such measures are to be disregarded entirely. It would be unrealistic to disregard the practical availability to residents of what the Main Roads Department is trying to have provided for their protection - taken to be:
“Strategy and Development Conditions Proposed to Attenuate Road Traffic Noise:
· Place a registrable covenant on the title of Lots 1 to 71 inclusive, 75 to 79 inclusive, 84, 92, 95, 101, 102, 112, 137 to 139 inclusive in order to restrict the construction of any dwelling on these lots (“no house” covenant). (This will not restrict the construction of a low set or high set dwelling/s on these lots if the owner/developer can reach agreement with Main Roads that the lower or upper storey/s will be designed and constructed in accordance with the requirements of AS3671 to achieve the internal noise criteria stated in AS2107. This will require the owner/developer to engage the services of an engineer skilled in acoustical design to certify (RPEQ) that the design and construction of the lower and upper storey/s of these dwellings have been undertaken in accordance with AS3671 and AS2107. Where the requirements of AS2107 need to be achieved, it will be necessary for all windows and external doors to be closed at all times. Therefore an air-conditioning/mechanical ventilation system that meets the ventilation requirements of the Building Code of Australia shall be installed in noise impacted rooms. Due consideration shall be given to the type of system to ensure that the internal noise criteria can be achieved. Tightly fitting architectural elements with suitable acoustical seals shall be used. It will also be necessary for the owner/developer to engage the acoustical engineer to demonstrate that a suitable outdoor recreational space will be available within the noise impacted lot for each dwelling.)
· Place a registrable covenant on the title of Lots 72 to 74 inclusive, 80 to 83 inclusive, 85 to 91 inclusive, 93, 94, 96 to 100 inclusive, 103 to 105 inclusive, 107 to 11l inclusive, 113 to 117 inclusive, 119 to 121 inclusive, 124, 136 and 140 in order to restrict the construction of any dwelling on these lots to low set only (“single storey” covenant). (This will not restrict the construction of a high set dwelling on these lots if the owner/developer can reach agreement with Main Roads that the upper storeys will be designed and constructed in accordance with the requirements of AS3671 to achieve the internal noise criteria stated in AS2107. This will require the owner/developer to engage the services of an engineer skilled in acoustical design to certify (RPEQ) that the design and construction of the upper storeys of these dwellings have been undertaken in accordance with AS3671 and AS2107. Where the requirements of AS2107 need to be achieved, it will be necessary for all windows and external doors to be closed at all times. Tightly fitting architectural elements with suitable acoustical seals shall be used. Therefore an air-conditioning/mechanical ventilation system that meets the ventilation requirements of the Building Code of Australia shall be installed in noise impacted rooms. Due consideration shall be given to the type of system in order that the internal noise criteria can be achieved).
· Building and Receiver Pad Levels – It would appear that the acoustical assessment has assumed the building pad levels as being the existing ground levels. If these pad levels are increased by more than 200mm for those lots subject to a Type B covenant, a new acoustical assessment will be needed. The developer shall supply the building pad levels for those lots subject to a Type B covenant in AHD datum for each dwelling that the acoustical consultant has used in the calculations.”
The Appellant’s case does not induce confidence that not only will all construction be compliant, but also, residents will take advantage of the noise attenuation measures envisaged in practice.
The court’s view is that 24 hour operations of the batching plant ought to be permitted, subject to strict compliance with the noise restrictions indicated above. As to traffic, there ought to be no traversing of the relevant defined section of Old Coach Road by trucks or other vehicles associated with the use (apart from sedans or equivalent for personal transport of staff or visitors) between 10 pm and 7 am except as authorised by a permit along the lines of that suggested in another context: See [16].
The Appellant has enjoyed substantial, but not complete success in the appeal. Whether it gets to enjoy the full fruits will depend very much on the opening of the industrial collector road. The parties are invited to formulate a draft order giving effect to the views set out in these reasons. The Council’s Condition 9 has not attracted support of the experts, and must be replaced by new conditions. Exhibit 12 (dated 16 February 2005) contained Mr Rumble’s suggestions, which may be a useful starting point:
“Condition #1 In relation to noise control measures the batching plant shall be constructed and operated in accordance with Section 3.0 of the report by Ron Rumble Pty Ltd dated February 2005, including specific noise control measures (i) to (vii) contained therein.
Condition #2 Noise emissions from the batching plant shall not exceed the limits set out in paragraph A.3 and A.4 of the memorandum of the Conclave of Noise Experts dated 10th February.
Condition #3 Following the commencement of operation of the plant, the Applicant shall carry out monitoring of noise emissions from the plant and implement any corrective measures that may be found to be necessary to comply with Condition #2. Within a period of three months following the commencement of operations, the Applicant shall provide to the Council a report from a suitably qualified noise expert, demonstrating that noise emissions comply with the limits set in Condition #2. This shall be carried out for both Stage 1 and Stage 2.
Condition #4 Following the completion of the industrial connector road, all traffic to and from the plant other than normal passenger vehicles, shall use the industrial connector between the hours of 10pm and 7am. From this time, there will be no restriction on operating hours other than to maintain compliance with the noise criteria nominated in Condition #2.”
As to proposed Condition #1, the measures referred to, supplementing the proposed bund and surmounting noise barrier, were:
“(i)Electrical vibrators will be used on storage hoppers and chutes instead of the more conventional pneumatic rappers. To ensure that material such as cement or wet sand flow under gravity and don’t hang up in chutes, it is normal to use pneumatic rappers which are operated during the batching process. These are somewhat like a small jackhammer pounding on the chute wall.
The electrical alternative is an electro-dynamic device which vibrates the chute walls but does not involve impacts on the metal. These devices are typically 20dBA quieter than the pneumatic rappers.
(ii)For Stage 1, the front-end loader will be procured with a hush kit fitted. This is a proprietary noise control option which achieves a noise reduction of approximately 10dBA compared with a standard machine.
(iii)Pneumatic control valves throughout the site will be fitted with proprietary exhaust port mufflers. These typically achieve a noise reduction of 10 to 15dBA compared with normal valves.
(iv)Hooters will not be used for signalling devices such as to indicate completion of the batch loading operation. Apart from statutory warning devices, all other signalling will be done by using either lights, radios or telephones.
(v)Telephone extension bells will not be used. If the office is unattended, incoming calls will be diverted to mobiles.
(vi)Operational measures which have proven to be effective in controlling noise at other sites will be implemented here. These include:
·for end-loader operations, maintain a 50mm layer of material on the concrete apron to avoid scraping the bucket on the concrete
·when batching with the end-loader (Stage 1) load fine aggregates (sands) into the weigh bin first to provide a cushioning bed for the coarse aggregates.
(vii)In recent without-prejudice discussions with Council, Hymix has also agreed to implement management procedures to outlaw the use of exhaust (Jake) braking in residential areas. When the industrial connector road is completed, Hymix would also agree to use this route exclusively between 10m and 7am.”
These require extension as proposed by Mr King in para 2.5.3 of his report, developing Mr Rumble’s work:
“Scraping loader buckets keep bucket 50mm above ground (a management issue and difficult to enforce)
Hopper vibrator use rotary vibrator rather than pneumatic
Banging tailgates fit rubber buffers to tailgates
Air release valves fit exhaust port silencers
Aggregates into hoppers rubber lining, order of loading – finer aggregates first
Telephone bells divert to mobile
Loader noise fit hush kit
Batching noise Enclose batch point in acoustic enclosure
Slump point Enclosure in acoustic enclosure
Cement/flywash delivery Use on site compressor rather than truck mounted (important if night time cement/flyash delivery is to occur).”
As to proposed Condition #2, to the extent that the Conclave agreement may import any relaxation of standards the Appellant or its successor must satisfy, derived from the planning documents discussed above, the agreement will be endorsed by the court. So far as operating hours are concerned, the restrictions incorporated in Condition 9 are gone. It might be noted that Mr King was accepting of operations from 5 am to 10 pm in the batching plant with the noise control measures endorsed by him in place, and was content to contemplate overnight operations on a permit basis, with the nearest residents notified in advance.
Exhibit 13 was the Users Guide to Queensland’s Environmental Protection (Noise) Policy 1997; the criterion adopted from it by the experts states:
“Where noise is continuous, the ambient level during the sleeping period should not exceed 30dB(A) to 35dB(A) indoors in a bedroom. In the case of fluctuating noise, the maximum level is correlated to sleep disturbance, rather than the ambient level. For good sleep, maximum noise levels of 45dB(A) to 50 dB(A) from traffic noise should not be heard indoors more than 10 to 15 times a night. This does not mean that a person is awakened at these levels, but that sleep is disturbed. Awakening reaction is more complex and maximum levels of 55dB(A) in a quiet ambient are more likely to be a problem. Assessment of disturbance caused by single-event maximum levels from industrial noise is more complex and high levels of annoyance can be triggered by one or two single events.”
As to proposed Condition #3, being something volunteered by the Appellant, it should lead to useful information being collected, and be a basis upon which future difficulties can be approached in quest of solutions. Needless to say, Hymix’s reports may not be determinative of the issues covered.
As to proposed Condition #4, the subject matter of it has been dealt with in a similar way above, except that, in the court’s view, the Appellant should effectively bear the risk of the industrial collector road’s not eventuating at all or within the desirable timeframe for its purposes. If the worst happens, a permit arrangement will have to be resorted to, if Old Coach Road is to be used between 10 pm and 7 am. There is also the possibility of an application to the court to change the conditions ultimately fixed in this appeal.
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