Martin v Campbelltown City Council

[2000] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:	Martin v Campbelltown City Council [2000] NSWLEC 228
PARTIES:	APPLICANT James Alfred Martin RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10986 of 1999
CORAM:	Sheahan J
KEY ISSUES:	:- Class 1 appeal - Council's Noise Control Notice - Noise Reduction Programme - existing industry - poultry growing operations - Amendment of Notice - Industrial Noise Policy - "feasible and reasonable" requirements - reasonable time to comply
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 Poultry Meat Industry Act 1986
CASES CITED:	Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27
DATES OF HEARING:	11/07/2000, 12/07/2000
DATE OF JUDGMENT:	10/27/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr J J Webster (Barrister) Solicitors Truman Hoyle RESPONDENT Mr P J McEwen SC (Barrister) Solicitors Marsdens

JUDGMENT:

IN THE LAND AND Matter No: 10986 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 27 October 2000

JAMES ALFRED MARTIN

Applicant

v

CAMPBELLTOWN CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. Mr “ Jim ” Martin is appealing against a Noise Control Notice (“ the Notice ”), issued to him by the Council under s 264 of the Protection of the Environment Operations Act 1997 (the “POEO Act ”), in respect of “ the activity of collection of poultry from the premises ”, namely the Martin farm at 317 Bensley Road Ingleburn (Lot 6 in DP 221768 - “ the premises ”) .

2. The Martin farm was purchased by Jim Martin’s wife, Sonia, on a “ going concern ” basis, from Bohumil (“ Bob ”) and Elly Becka on 5 December 1986 ( Exhibit M3 par 13). Mrs Martin has, by their Counsel, agreed to be bound by any order of the court in respect of the Notice. Hence, any reference to “ Martin ” in this judgment should be construed as referring to Mr and/or Mrs Martin, jointly and severally.

3. The essence of Martin’s objection is that the Notice and its requirements are “ unreasonable ”, at least partly because of the financial cost involved in altering the premises, or the Martin operations, to achieve its objectives.

4. Most of the land at No.317 (indeed all of it which is relevant to this matter) is zoned 7(c) Scenic Protection. A small portion of the rear of the site is zoned 5(b) for road reservation, and the area to the south-east of the road reservation is zoned 6(b) open space ( Exhibit C8 and Exhibit M6 attachment 1). There are smaller lots opposite and facing No.317, but, not far away, to the north-west and on higher ground, is quite dense residential development. It can fairly be said that the site is located, at least, quite near the “ rural-urban interface ” in that locality.

5. There is before the court, extensive evidence about the housing, breeding, feeding, fattening, harvesting, processing, loading, transporting, and selling of poultry, and Council gave evidence of “ numerous complaints since 1988 about offensive noise emanating from ” the Martin farm ( Exhibit C1 par 2), at which Martin raises poultry from one day of age until approximately 56 days of age.

6. However, the specific focus of the Notice is the noise generated by the “ collection ” of poultry from the premises, and the court, in this judgment, will focus on only that particular component, both of the poultry industry generally, and of Martin’s operations in particular.

The evidence

7. Council relied on written evidence from:

(i) Belinda Comer , Council’s Environmental Health Officer (affidavit 26 June 2000 - Exhibit C1 ).
(ii) James Howarth , the next-door neighbour of the Martin property (affidavit 23 June 2000 - Exhibit C2 and building plans in Exhibit C6 . See also site plan Exhibit M14 ).
(iii) Louis Challis , consulting acoustical and vibration engineer (Statement of Evidence 28 June 2000 - Exhibit C3 , and draft amended conditions Exhibit C7 ).

Howarth and Challis also gave oral evidence.

8. Martin relied on written evidence from:

(i) James Alfred Martin , the applicant in the proceedings (see par 2 above) (affidavit 30 June 2000 - Exhibit M1).
(ii) Colin Parker , an Area Manager of the NSW Farmers Association (affidavit 28 June 2000 - Exhibit M2 . See also Department of Agriculture Guidelines document - Exhibit M10 ).
(iii) Bohumil Becka , former owner of Martin’s farm (affidavit 25 June 2000 - Exhibit M3 ).
(iv) John Joseph Cordina , Chief Executive Officer and a Director of Cordina Chicken Farms Pty Ltd (affidavit 4 July 2000 - Exhibit M4 , photos Exhibit M9 , and broiler chicken growing agreement Exhibit M11 ).
(v) Paul Elias , Field Service Manager with Cordina Chicken Farms Pty Ltd (affidavit 4 July 2000 - Exhibit M5 ).
(vi) Graeme Atkins , Consulting Acoustical & Vibration Engineer (Noise Impact Assessment Report - Exhibit M6 , as amended by Exhibit M7).
(vii) G K Bolla , Livestock Officer (Poultry Products) with NSW Agriculture (letter 3 July 2000 - Exhibit M8 ).
(viii) Christopher George King , Consultant Engineer (Statement of Evidence - Exhibit M16 ).

Cordina, Atkins and King also gave oral evidence.

9. I record that I had the benefit of a comprehensive site inspection.

Relevant Statutory Provisions

10. The POEO Act relevantly provides as follows:

264 Noise control notices relating to premises
(1) This section applies to:
(a) the person who is the occupier of any premises, or
(b) the person who carries on an activity at any premises or who uses or operates an article at any premises.
(2) The appropriate regulatory authority may, by notice in writing given to such a person, prohibit the person from causing, permitting or allowing:
(a) any specified activity to be carried on at the premises, or
(b) any specified article to be used or operated at the premises
or both, in such a manner as to cause the emission from the premises at all times or on specified days, or between specified times on all days or on specified days, of noise that, when measured at any specified point (whether within or outside the premises), is in excess of a specified level.
(3) If, in a noise control notice, there is no reference to the times or days during or on which the prohibition imposed by the notice is to operate, the prohibition operates at all times.
(4) Nothing in this section affects the power under this Act to attach conditions to an environment protection licence.

290 Appeals regarding noise
(1) Any person:
(a) given a noise control notice, or
(b) against whom a noise abatement order is made,
may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order.
…

292 Determination of appeals
(1) A court to which an appeal is made under this Act may hear and determine the appeal.
(2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.

11. In Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27 (“ Sumar ”), Talbot J held (on 15 February 2000) that, on appeal, this court has all the powers of the Council, including the power to vary the requirements of a notice, under s 264 of the POEO Act.

Guideline documents

12. In 1996, NSW Agriculture published a volume of “ Poultry Farming Guidelines” ( Exhibit M10 ). The “ Overview ” section of the document says this regarding “ Noise Management ” (s A5.4 at p10):

Mechanical equipment can be a source of noise and a potential source of complaint from neighbours. The degree of nuisance to neighbours depends on both the site selected and the layout of the farm. Proximity of neighbouring dwellings and the direction of prevailing winds will influence the perceived intensity of noise and the distance it may be carried. These factors need to be considered.

Mechanical equipment in poor condition will create more noise than well maintained equipment. It is important to ensure that all farm machinery and ancillary equipment meet the appropriate environmental and legal noise requirements.

Strategic planning of farm activities will minimise noise problems.

Vegetation screens are effective noise control devices when sited correctly (refer to Section B6.8.1).

13. The detailed Guidelines recognise (s B6.8.1 at p 33):

Poultry meat enterprises have potential for particular problems when grown birds are collected at night (for welfare and product quality reasons). Planning of night-time activities should be done with appropriate care and consideration for the neighbours.

It is essential that the farm operator liaise closely with drivers, pick-up crews and processors to ensure that all are aware of the potential for conflict arising from unsympathetic use of vehicles.

14. In January 2000, the NSW Environment Protection Authority (“ EPA ”) published the “ New South Wales Industrial Noise Policy ” ( Exhibit M12 ), to which there was much reference during the expert testimony, and the submissions of counsel.

15. In s 1.3 “ Scope of the Policy , it is noted (at p2):

Local government is an independent regulator for noise under the legislation, and thus has discretion in dealing with noise within its area of responsibility. The policy is designed for large and complex industrial sources and specifies substantial monitoring and assessment procedures that may not always be applicable to the types of sources councils need to address. However, local government may find the policy helpful in the carrying-out of its land-use planning responsibilities (for example, the setting of targets in local and regional environmental plans).

16. In s 1.4 “ Applying the Policy ”, it is noted (at p4):

In applying the policy to existing operations it is acknowledged that the scope for applying feasible and reasonable mitigation measures to existing noise sources is usually far more limited than for new developments. Careful consideration of noise impacts and the feasible and reasonable mitigation measures available at these sites may result in less stringent noise limits than would ideally apply. Sometimes the resultant noise limits will be above the criteria.
…
The policy sets two separate noise criteria to meet environmental noise objectives: one to account for intrusive noise and the other to protect the amenity of particular land uses.

and later (at p6):

In setting noise limits, the regulatory/consent authorities need to consider the technical practicalities of mitigation, the amount of noise reduction provided, community views, benefits arising from the development and cost of achieving the project-specific noise levels recommended here, along with the environmental consequences of exceeding the project-specific noise levels. It is important that the project-specific noise levels are not automatically interpreted as conditions for consent, without consideration of the other factors. In many instances, it may be appropriate to set noise limits for a development above the project-specific noise levels recommended in this document.

17. “ Industrial Noise Criteria ” are dealt with in section 2, under headings dealing with “ intrusiveness ” and “ amenity ”. The Policy states (in s 2.1 at p14):

The intrusiveness of an industrial noise source may generally be considered acceptable if the equivalent continuous (energy-average) A-weighted level of noise from the source (represented by the L Aeq descriptor), measured over a 15-minute period, does not exceed the background noise level measured in the absence of the source by more than 5dB.

And later (in s 2.1 at p15):

In some rural situations, the rating background level may be the same for the day and night. In these cases, it is recognised that excursions of noise above the intrusiveness criterion during the day would not usually have the same impact as they would at night. This is due to the more sensitive nature of activities likely to be disturbed at night (for example, sleep and relaxation).

18. The amenity criteria for a “ residence ” are set out in Table 2.1 (on p 16) for four different situations - “ rural ”, “ suburban ”, “ urban ”, and (for existing situations only) “ urban/industrial interface ”.

19. The following recommended “ Acceptable ” and “ Maximum ” noise levels are specified in each case for “ day ” (7am-6pm Monday to Saturday, 8am-6pm Sunday and holidays), “ evening ” (6pm-10pm every day), and “ night ” (10pm to 7am Monday to Saturday, 10pm-8am Sunday and holidays):

Area Time Acceptable Maximum

Rural Day 50 55

Evening 45 50

Night 40 45

Suburban Day 55 60

Evening 45 50

Night 40 45

Urban Day 60 65

Evening 50 55

Night 45 50

Urban/Industrial Day 65 70

Interface Evening 55 60

Night 50 55

(in dB(A)L aeq )

20. The notes to Table 2.1 include the following definitions (in note 6 at pp 17-18):

Rural - means an area with an acoustical environment that is dominated by natural sounds, having little or no road traffic. Such areas may include:
- an agricultural area, except those used for intensive agricultural activities
- a rural recreational area such as resort areas
- a wilderness area or national park
- an area generally characterised by low background noise levels (except in the immediate vicinity of industrial noise sources).
This area may be located in either a rural, rural-residential, environment protection zone or scenic protection zone , as defined on a council zoning map (Local Environmental Plan (LEP) or other planning instrument).

Suburban - an area that has local traffic with characteristically intermittent traffic flows or with some limited commerce or industry. This area often has the following characteristics:
- decreasing noise levels in the evening period (1800-2200); and/or
- evening ambient noise levels defined by the natural environment and infrequent human activity.
This area may be located in either a rural, rural-residential or residential zone , as defined on an LEP or other planning instrument.

Urban - an area with an acoustical environment that:
- is dominated by ‘urban hum’ or industrial source noise
- has through traffic with characteristically heavy and continuous traffic flows during peak periods
- is near commercial districts or industrial districts
- has any combination of the above,
where ‘urban hum’ means the aggregate sound of many unidentifiable, mostly traffic-related sound sources.

This area may be located in either a rural, rural-residential or residential zone as defined on an LEP or other planning instrument, and also includes mixed land-use zones such as mixed commercial and residential uses.

Urban/industrial interface - an area defined as for ‘urban’ above that is in close proximity to industrial premises and that extends out to a point where the existing industrial noise from the source has fallen by 5 dB. Beyond this region the amenity criteria for the ‘urban’ category applies. …

and (in notes 8 and 11 at p 18):

The L Aeq noise level for a specific period represents the L Aeq level calculated or measured over the applicable day, evening or night period (i.e. L Aeq, period) except where otherwise stated (for example, school classroom, hospital).
…
The acceptable and recommended maximum L Aeq noise levels can provide a guide to applying the negotiation process set out in Section 8. While negotiation between the proponent and the community for an agreed noise level can occur at any time, typically the proponent would negotiate with the EPA where noise-level emissions fall between the acceptable and recommended maximum. For site levels beyond the recommended maximum levels, the proponent would need to negotiate directly with the community.

21. Section 3 sets out a protocol for “ determining existing noise levels ” for the criteria of both intrusiveness and amenity.

22. In s 8 , the following appears (at s 8.2 on p 43):

Where proposed mitigation measures will not reduce noise levels to the project-specific noise levels, the proponent should seek to negotiate with the regulatory/consent authority to demonstrate that all feasible and reasonable mitigation measures have been applied. The regulatory/consent authority can choose to accept the level of impact proposed, or negotiate for a better level of control where this is considered achievable.

23. Section 10 deals with the application of the policy to “ existing industrial premises ”. As the Policy says (in s 10.1 at p49):

Many existing industrial sources were designed for higher noise emission levels than the criteria outlined in this policy. In other cases industries may have been in existence before neighbouring noise-sensitive developments and even before noise-control legislation was introduced. The range of mitigation measures available for these sites may be either extremely limited or costly.
…
Where noise emissions from the site exceed the project-specific noise levels, the regulatory authorities and the noise-source manager need to negotiate achievable noise limits for the site. The project-specific noise levels should not be applied as mandatory noise limits. The project-specific noise levels supply the initial target levels and drive the process of assessing all feasible and reasonable control measures. Achievable noise limits result from applying all feasible and reasonable noise control measures. For sites with limited mitigation measures the achievable noise limits may sometimes be above the project-specific noise levels.
…
The measures required to achieve the noise limits would usually be set out in a noise reduction program, with mitigation measures staged over time. The noise reduction program would typically be attached as a licence condition. Efforts should be aimed at achieving a reduction in noise in a manner that provides the greatest benefit to residents without undue impact on the existing business. This may be accomplished by prioritising the various noise-control measures.

24. The approach in s 10 is similar to that of Talbot J in Sumar (see Exhibit M6 p9).

25. The definition section (pp 56ff) includes the following relevant definitions:

Feasible and reasonable measures:
Feasibility relates to engineering considerations and what is practical to build; reasonableness relates to the application of judgement in arriving at a decision, taking into account the following factors:
- noise mitigation benefits (amount of noise reduction provided, number of people protected)
- cost of mitigation (cost of mitigation versus benefit provided)
- community views (aesthetic impacts and community wishes)
- noise levels for affected land uses (existing and future levels, and changes in noise levels).

Industrial noise sources:
Sources that do not generally move from place to place, for example, stationary sources. …

Intrusive noise:
Refers to noise that intrudes above the background levels by more than 5 decibels. The intrusiveness criterion is set out in Section 2.1.

L Aeq:
The equivalent continuous noise level - the level of noise equivalent to the energy-average of noise levels occurring over a measurement period.

The Noise Control Notice

26. The substantive parts of the notice, as issued on 3 November 1999 ( Exhibit C4 ), provided as follows:

Noise Prohibition
Campbelltown City Council prohibits Mr James Alfred Martin from causing, permitting or allowing the carrying on of the activity of collecting poultry from the premises in such a manner as to cause the emission from the premises of noise above the level specified below when measured at the point specified below between the hours of 10.00pm and midnight and the hours of midnight and 8.00am on Saturdays, Sundays and Public Holidays and between the hours of 10.00pm and midnight and the hours midnight and 7.00am on each other day.

Maximum noise level and Noise measuring point
The L10 noise level emitted from the premises shall not exceed the background noise level of 36.5dB in any octave band centre frequency (31.5Hz to 8kHz inclusive) when measured from any point on the adjoining property known as Lot B in Deposited Plan 400506 (No.319) Bensley Road, Ingleburn New South Wales (‘the adjoining property’) which is not less than one metre from the common boundary with the premises provided that such point is adjacent to the north corner of the dwelling on the said adjoining property and the noise measuring device is located more than one metre from the said dwelling or any other structure on the said adjoining property.

27. With the consent of the applicant (in view of the decision of Talbot J in Sumar ), the Council has amended the notice by deleting the last-quoted paragraph and inserting instead the following par (see Exhibit C5 ):

The L10 noise level emitted from the premises shall not exceed the prevailing background noise level by more than 5dB(A) when measured from any point on the adjoining premises known as Lot B in Deposited Plan 400506 (No.319) Bensley Road, Ingleburn New South Wales (‘the adjoining premises’) which is not less than one metre from the common boundary with the premises provided that such point is adjacent to the north corner of the dwelling on the adjoining premises and the noise measuring device is located more than one metre from the said dwelling or any other structure on the adjoining premises.

28. Mr McEwen, in his submissions said that “ L10 ” in Exhibit C5 should be read as

“ L Aeq” , and the hours should be stipulated.

29. The Council’s acoustic expert, Mr Louis Challis, gave evidence that even in that amended form the Council’s notice required “ massaging ”. Mr Challis believes the +5 dBA limit should apply 7pm-6am ( Exhibit C3 ), but Cordina testified ( Exhibit M4 par 35) that it would be “ impossible, particularly in the summer, to complete the pickup of chickens by 10pm ” ( Exhibit M4 par 35). Challis suggested, in his oral evidence, the hours 10pm-7am.

The problem

30. The major complaints about noise from Martin’s operation appear to have been made by the next-door neighbours, the Howarth family of 319 Bensley Road (Lot B, DP 400506). As noted above, Mr James Howarth gave affidavit and oral evidence at the hearing.

31. The Howarths have lived at No.319 since November 1979 ( Exhibit C2 par 4), and their home is approximately 15m ( Exhibit C3 p1 and Exhibit M6 p3) from the Martin shed closest to it (Shed No.2). The Howarths’ master bedroom is “ the closest habitable room to the poultry sheds ” ( Exhibit C1 pars 5-6), and Mr Howarth works a shift which requires him to go to bed by 9.30pm and rise at 5am.

32. Mr Howarth has an application before Council to build a new home on his block, and intends to build it closer to the road, alongside the “ backyard ” space between the rear of the Martin house and the front end of their poultry sheds. ( Exhibit C6 and Exhibit M14 ).

33. Howarth alleges that:

(i) Martin changed “ the pickup times ” when he took over the farm in about 1988 ( Exhibit C1 Annexure “ B ”);

(ii) the noise became objectionable when forklifts were introduced in about early 1990; and

(iii) location of the proposed new Howarth house to the rear, rather than towards the front, of their block of land is not feasible because of services.

34. Cordina says forklifts were used as long ago as 1980, but concedes that the collection system changed in 1989. Martin does not control the pick-up times.

35. Howarth’s current complaints concern the following activities during poultry collections from next door ( Exhibit C2 par 10):

(i) The revving of the motor vehicles used to pick up and remove the chickens.
(ii) The revving of the forklift used to load the chicken cages into trucks.
(iii) The noise of the cages being picked up and unloaded onto the trucks.
(iv) The noise of the chickens themselves.
(v) The noise of the person engaged in those operations, talking and yelling as they carry out the operations.

36. Howarth has kept records of particular noise incidents between 1991 and 2000, at which the earliest recorded starting time of collection noise was 7.40pm and the latest 3am, and the earliest recorded finishing time was 10pm and the latest 5am (see Exhibit C2 pars 11-20).

The collection of birds

37. It seems to be common ground that the usual practice, and probably the “ best practice ”, in the poultry industry is to “ collect ” birds at night. Mr Bolla of NSW Agriculture notes ( Exhibit M8 par 3):

Loading and transporting birds in the cool of the evening is essential in Australia’s relatively warm climate. To do otherwise would jeopardise the welfare of the birds as increased bird stress levels would cost the industry dearly in terms of bird losses and reduced carcase quality following processing.

38. Bolla goes on to note further (par 4):

Most processors have implemented measures to reduce noise when chickens are being picked up. This includes the use of later model forklifts with quieter engines and better silencers. Trucks used in transporting chickens often have improved mufflers to limit noise output and pickup crews have been briefed by processors to eliminate the use of exhaust brakes on vehicles and reduce noise and voice factors whilst on farms. The use of metal chains for tying down crates has also been eliminated.

39. Mr Martin testified ( Exhibit M1 par 11):

(a) the sheds were and are not designed for daylight pick ups;
(b) the chickens become distressed when they can see the activities which are taking place. This distress is manifested by increased fighting, exertion and general panic.

40. Mr Parker of the NSW Farmers Association testified ( Exhibit M2 ):

21. It is possible to minimise this panic/stress reaction by sedating the birds, but this is a practice unacceptable to both the farmers and the public.
22. The most effective way is to pick up the birds at night. Just like ‘backyard budgies’, turkeys and chicken ‘bed down’ and sleep when there is darkness, a phenomenon which also happens during eclipses of the sun. The birds take sometime to bed down after twilight. Once bedded down the birds are calm and not as flighty. They can be handled, picked up and transported with much less risk of stress, panic and death.
23. For these reasons, pick up usually cannot commence until about 1 hour after twilight. In summer, this could be as late as 10:00p.m. Usually, there is a need to allow at least 3 hours to pick up a shed of 20,000 birds to be completed in a humane way without rush.
24. As well, heat is a problem with chickens. They have a body temperature of 41o Celsius and are susceptible to heat. Heat levels in poultry houses rise very quickly when birds are stirred up. This is also why pick ups are performed in the cool of the night, so that birds can be transported without too much heat stress.

41. It would appear that “ collectors ” travel from farm to farm, probably visiting 5 or 6 farms per night, and carrying their own forklift truck on the collection truck, which is usually a semi-trailer.

42. The feeding equipment suspended in the sheds is winched up so that the forklift can move into and around the sheds during collection.

43. The chickens are collected into a “ tray ”, which when loaded weighs about 45 kg. About 12 trays are stacked (3 x 4) in a “ module ”, and the truck carries 22 modules ( Exhibit M1 , par 10).

The Martin operation

44. After the sale of No.317 to the Martins in 1986, the Beckas introduced the Martins to John Cordina, the now CEO of the family controlled business of 50 years’ standing, Cordina Chicken Farms Pty Ltd (“ Cordina ”). The Beckas had been Cordina “ contract growers ” since at least about 1980 ( Exhibit M3 par 9, c.f. Exhibit M4 par 16).

45. The Beckas had purchased the property on “ 31 (sic) June 1966 ” ( Exhibit M3 par 1), when it was vacant land. The Zimmerman family was then already established as “ chicken growers ” at 315 Bensley Road, apparently since about 1960 ( Exhibit M1 par 17), and they also have a contract with Cordina.

46. The “ fibro cottage ” at No.319 was “ occupied by a tenant ” at that time. “ Surrounding properties were largely vacant land” ( Exhibit M3 par 2). The Beckas built Shed No.1 (91m x 12.1m) shortly after acquiring the property, and Shed No.2 (102m x 12.1m) in “ about 1970 or 1971 ” ( Exhibit M3 pars 3-7). Shed No.1 has a capacity of 18,000 birds, and shed No.2 20,000 ( Exhibit M4 par 13). Since their acquisition of the farm, Martins have spent some $83,900 on improvements to the sheds ( Exhibit M1 par 13).

47. Becka testified that all building works on the property enjoyed Council’s consent ( Exhibit M3 par 7), but there appear to have been no conditions imposed regarding noise matters ( Exhibit M6 par 2.0).

48. At the time of their sale to the Martins, the Beckas were growing “ about 36,000 chickens per batch” , and “ 4 or 5 batches annually ” ( Exhibit M3 , par 9), and “ pick ups of grown chickens usually followed the following procedure ” ( Exhibit M3 par 11):

(a) at some point in time during either the late afternoon or early evening, a prime mover delivered a semi trailer to the Property. The semi trailer consisted of 22 all steel and wire crates, 8’ x 4’ in size each capable of carrying similar numbers of chickens to the modern module used at this time: these crates were heavy and very noisy when loading;
(b) at some point in time in the evening a service truck would come to the Property. On the service truck was a forklift and up to 6 contract workmen, 4 or 5 of whom acted as catchers and 1 of whom was a forklift driver;
(c) the catchers and the forklift driver always worked at night time. In winter months loading started early at about 7:00p.m. and was usually completed by 10:00p.m. In summer months the catchers worked a little later and sometimes did not arrive at the Property until about 9:00p.m. and would finish at about midnight. Very occasionally in any one year, maybe 3 or 4 times, a pick up would occur after midnight;
(d) the chickens were caught, put into the crates which were then loaded onto the semi trailer: each trailer took between 6,000 and 7,000 birds;
(e) the loaded semi trailer would then be sent to the processing plant.

49. Mr Becka “ had no real arguments or disputes with Mr Howarth … about noise relating to pick ups of the growing chickens ” ( Exhibit M3 par 12).

50. Contract growers in New South Wales operate under the umbrella of the Poultry Meat Industry (“ PMI ”) Act 1986, which is administered by a PMI Committee (“ PMIC ”) ( Exhibit M2 par 10). The area manager of the NSW Farmers Association, Mr Parker, opines that “ Martin’s farm is above the promoted minimum standard in terms of shedding and equipment ” ( Exhibit M2 par 14), and that “ Martin conducts his farm in accordance with the model promoted by PMIC and in accordance with best industry practices” ( Exhibit M2 par 41).

51. Mr Martin personally attends all collections “ to ensure that the chickens are loaded quickly, efficiently and in a humane way ” ( Exhibit M1 par 30).

The Cordina operation

52. Cordina processes about 300,000 chickens each week, sourced from its “ contract farming operations ” ( Exhibit M4 par 8).

53. The Martin farm is one of 50 farms under contract to Cordina. Martin’s current five-year contract with Cordina terminates in July 2004 ( Exhibit M4 par 12 and Exhibit M1 ).

54. Cordina’s Field Service Manager, Paul Elias, and John Cordina, testified that the Martin farm meets the company’s specifications ( Exhibit M4 par 14 and Exhibit M5 pars 13-14).

55. Cordina places on its contract farms one-day-old birds from the Cordina hatchery, and the contract grower rears them to a stipulated weight, under Cordina’s specifications and active supervision, on a 56 day cycle.

56. The contract grower is required to provide “adequate husbandry according to the Cordina Broiler Growing Manual and the Cordina Broiler Growing Agreement ” and is paid for the number of live birds collected (see Exhibits M4 and M5 ).

57. Cordina delivers to Martin batches of 38,000 day-old chickens at a time. Martin testified ( Exhibit M1 ) that during three weeks of pick-ups birds of the respective weights 1.8kg, 2.5kg and 3.5kg are collected. After a break of 3 to 14 days at the end of each 56 day cycle another batch of 38,000 will be delivered.

58. John Cordina described the “ pickup process ” (post 1989) in this way ( Exhibit M4 ):

20. Cordina pick-ups generally commence on a farm at about 35 days of age and can continue at that farm until the chickens are 56 days of age.
21. During this 21 day period (between days 35 and 56) each shed on the relevant farm can be entered about 3 times to pick-up chickens.
22. … weights of pick-up vary and are determined by Cordina’s marketing demand; although a basic profile is in place, daily fluctuations can occur.
23. Cordina has a production planner who organises a forward weekly plan based on information from Cordina’s production and sales departments. That plan is reviewed daily in advance and conveyed to Cordina’s contract collection and transport company, Girraween Transport Pty Limited (“Girraween Transport”); the operators of Girraween Transport has been Cordina’s contractor for over 30 years.
24. All pick-ups are done during night hours. The pick-up times vary according to the time of year, transport logistics, staffing levels and geographic locations. Usually, pick-ups commence by 8.30p.m. and conclude by about 4:00a.m.
25. Bird pick-ups are carried out during night hours, principally for animal welfare reasons. Birds need to be herded during the catching process and this task cannot be satisfactorily carried out during full daylight hours. In daylight, birds tend to pack, causing suffocation and bruising. In addition, chickens caught in hot weather conditions suffer from undue stress, again leading to deaths in both the catching process and in crates while the stock is awaiting processing.
…
30. At pick-up, the live birds are caught by hand and loaded into plastic drawers which in turn are inserted into a steel module which in turn are loaded onto a semi trailer. Each semi trailer carries about 22 modules or between 4,000 and 7,000, depending on chicken weight.
31. … The system comprises steel modules which holds 12 large plastic drawers (3 x 4 high). These modules are side loaded onto semitrailers 2 high with 20-22 modules per trailer. The previous system (pre 1989) comprised 6 deck steel modules which were loaded from the rear of the semitrailer onto steel slides and shunted by the forklift to the front of the trailer. There were 14 steel modules per trailer. The pre 1989 system was operationally noisier than the current system due to the banging of steel crates and the forklift exertion noises (revving) in pushing the modules to the front of each trailer. Also, the forklifts in the 1980’s were not acoustically treated as is now the case.
32. Girraween Transport is responsible for transport logistics, its staffing and on-farm pick-up operations.

59. Martin described the “ procedure invariably followed by Girraween Transport Company ” as follows ( Exhibit M1 par 10):

(a) at some point during either the late afternoon or early evening, a prime mover delivers a semi trailer of 22 modules to the Property;
(b) a module comprises a steel frame with 12 moulded plastic trays, each of which holds about 45 kilos weight of chickens: if the weight of each bird is approximately 2 kilos, the tray would hold 24 chickens; with an increase in weight the number of chickens in each drawer will decrease;
(c) later a service truck comes to the Property. On the service truck is a fork lift and, typically, not less than 5 contract workmen, 4 of whom act as catchers of the chickens and 1 who is a licensed fork lift driver (collectively ‘the contractors’);
(d) the contractors work at night time. The hours of work vary with the seasons. In winter catching and loading might start at 7:00p.m., whereas in summer catching may not commence until 10:00p.m., depending entirely upon weather conditions (usually daylight and heat);
(e) the contractors are paid according to the number of chickens caught and loaded; they are expected to load a semi trailer within 45 minutes;
(f) the chickens are caught, loaded into the moulded plastic trays which are in turn slid into the modules; the modules are then carried by fork lift from the growing sheds and loaded onto the semi trailer. A semi trailer can take between 6,000 and 7,000 birds depending upon individual weight;
(g) once a semi trailer has been loaded, the prime mover returns to collect it and deliver it to Cordina’s processing plant at Girraween;
(h) ideally, shortly before the first semi trailer is towed away, the prime mover delivers a second semi trailer which would also be packed by the contractors; this process could occur 3 or 4 times, depending upon the number of chickens then required by Cordina;
(i) on completion of the packing and loading tasks for that pick-up, the contractors then move onto another farm;

60. As the court understands the current collection procedure at the Martin farm, the truck “ noses ” into the backyard area, turns there and waits while the birds are loaded, and then “ noses ” out again, once loading is complete.

Noise Reduction Options Available

61. The noise sources affecting Howarth, as a result of the Martin poultry operations, are the cooling fans, the collection truck, the forklifts, the catchers, and the chickens.

62. Various options advanced, during the hearing, for reduction of the noise generated by those sources include:

(i) Reduction at night (when not too warm) of the operating speed of the cooling fans.
(ii) Installation of sound-moderating blinds/shutters to cover the sides of the sheds, especially on the southern side of shed No.2, closest to Howarth’s house.
(iii) Reduction of employee noise during pickup operations.
(iv) Suppression of forklift noise.
(v) Replacement of petrol forklifts by electric forklifts.
(vi) Suppression of prime mover noise (by relocating the collection operation to the rear of the sheds).
(vii) Noise control buffers or barriers between the Howarth and Martin properties.
(viii) Total reconstruction of the sheds.
(ix) Variation in the timing of pickups.
(x) Using plastic rather than metal modules for moving chickens.

63. The court is satisfied that chicken collection activities must be carried out at night, and that, obviously, limits the scope of option (ix). (See pars 13, 37, 40, and 58).

64. Option (x) has apparently taken effect (see Exhibit M9 , Exhibit M4 par 31, and Exhibit M2 par 28), and it would not be “ feasible and reasonable ” (see par 25) for Council or the court to insist on options (vii) or (viii) in all the circumstances.

65. Martin is happy to arrange his affairs so that:

(a) the cooling fans operate more quietly (option (i)), and
(b) the collection truck is loaded at the rear of the sheds (option (vi)).

66. He is also happy to install quieter “ blinds ” on his sheds, especially No.2 (option (ii)).

67. However, there are obvious difficulties in reducing the human noise levels (option (iii)), although reduction in the background noise during the collection activities will reduce the need for the workers to speak so loudly.

68. The court heard considerable evidence about forklifts, and I am satisfied that, although action can be taken to “ silence ” petrol forklifts to some extent (option (iv)), none of the currently available electric forklifts (option (v)) are suitable for use in poultry collection activities. (See especially evidence of King - Exhibit M16 and T.98-108 - but also Exhibit M4 pars 28-29, and Exhibit M2 pars 27-29).

69. Atkins measured noise levels at the 317/319 property boundary in January/February 2000. A collection was made overnight 9-10 February. The readings, on other nights, when there was no collection, ranged from 34 to 41 dB(A) (giving a Rating Background Level or “ RBL ” of 39) and reached 52 on the night of the collection. Using the Industrial Noise Policy procedures he arrived at a night-time ambient L Aeq of 43 ( Exhibit M6 Table 1 p7).

70. In settling upon the appropriate noise reduction goals, I accept that the court should apply, in general terms, the Industrial Noise Policy, but the court has to decide upon the correct classification for the area where the farm is located - rural, urban, suburban, or urban/industrial interface.

71. The applicant argues for “ urban/industrial interface ”, and Atkins gave evidence on that basis. That would allow for higher noise levels. However, this is a long-established rural industry (i.e. “ existing ” under the Policy), located next to a residence in an area of rural-residential living, which is zoned “ scenic protection ”, and situated not far from an urban residential area (see Exhibit C8 ). A few poultry undertakings, even though two are on adjacent blocks, do not seem to me to be enough to take the area out of the “ rural ”, or perhaps the “ suburban ”, category (see again definitions in par 20).

72. Mr McEwen, for the Council, submitted that the “ urban/industrial interface ” classification is “ totally inappropriate ” in this case (T.7,L.25), it being designed to cover “ situations closer into the development in the Campbelltown area ”, or in Sydney suburbs “ which have had longstanding industrial sections up against urban development, like for example Botany ” (L.32ff). I accept Mr McEwen’s submission in that regard.

73. That being so, it follows that I prefer the evidence of Challis over Atkins, and regard the “ amenity criteria [as] subservient to the intrusiveness criteria ” (T.7.L.50ff - see also par 17).

74. In arriving at the most “ feasible and reasonable ” solution, I acknowledge that Martin has made important efforts to bring the noise level down, and is prepared, within reason, to do more, e.g. blinds/shutters. However, there is some disagreement between Challis and Atkins in regard to the likely effectiveness of such alterations to the sheds.

75. It has also been suggested by Mr Webster, for the applicant, that the court should take a different stance if Mr Howarth builds his new house where he proposes, because that location might result in complaints from him about noise from Shed No.1.

76. However, the court prefers to impose the appropriate noise reduction regime for the Martin operation, irrespective of Mr Howarth’s preferred location for his new house, and allow some time to complete whatever works it may necessitate. This aspect of the matter was made somewhat more complex by Mr McEwen’s preparedness to meet Mr Webster on it, but suiting only Mr Howarth raises the prospect of further complaints by neighbours not yet resident in the area. If the question comes down to where blinds/shutters should be fitted, the court believes they should be fitted to both sheds, not just No.2, and a reasonable time should be allowed for Martin to comply.

Conclusion

77. I have concluded that a limit of 5dB(A) above background, approximately 41dB(A), is reasonable. While I acknowledge Mr Atkins’ pessimism about its achievability, such a night time night limit should be set by the Notice.

78. To achieve it “ on the ground ”, Martin needs to embark further on a noise reduction programme, the details of which can be included as conditions of an amended Notice - i.e. the Notice should be amended generally in terms of Exhibit C5, and Exhibit M13 as amended by Exhibit C7 , rather than Exhibit M15 .

79. As the exhibits were prepared “ on the run ”, amended during argument, and exhibit some inelegant expression, clear errors, and some inconsistencies, they should be returned so that the parties can agree upon the terms of an amended Notice which reflects these reasons for judgment and achieves the objectives I have set out herein.

80. It would not be “ feasible and reasonable ” for the Notice to require of Martin that:

(a) he replace his sheds,
(b) collection take place during the day,
(c) baffles be fitted to collection trucks, and
(d) electric forklifts be used in preference to others .

81. However, the court has concluded that it is “ feasible and reasonable ” that he be required:

(a) to alert nearest neighbours of collection dates,
(b) to endeavour to arrange collections for the early evening hours,
(c) to install sound-moderating blinds/shutters to the sides of both his sheds,
(d) to use the most silent suitable forklifts available,
(e) to reduce the operating noise of his cooling fans, especially at night (with some flexibility in high temperatures),
(f) to use his best endeavours to minimise human noise during poultry collection,
(g) to conduct poultry collection at and from the eastern end of his sheds, and in the area between them, and that truck movements, including turning, be arranged accordingly, so that reversing horns are not activated, and
(h) to ensure that plastic chicken trays and modules are used rather than metal ones.

82. It is also “ feasible and reasonable ” that the court require that:

(i) these improvements be effected by the applicant within, say, 6 months of the court’s final orders in regard to the Notice,
(ii) they be incorporated into a Noise Reduction Programme submitted to Council by the applicant within, say 2 months of such final orders, and
(iii) the noise performance of the Martin farm and operations be subject to monitoring on a periodic basis.

Orders

83. The orders of the court will, therefore, be:

1. The appeal stands adjourned for mention before me at 9.30am on Thursday 9 November 2000 for the purpose of making final orders.
2. All the exhibits are to be returned.
3. The parties have leave to bring in on 9 November 2000 short minutes of order to reflect the reasons for judgment published on Friday 27 October 2000.