Meriden School v Pedavoli

[2009] NSWLEC 183

Land and Environment Court

of New South Wales

CITATION:	Meriden School v Pedavoli [2009] NSWLEC 183
PARTIES:	APPLICANT Meriden School RESPONDENT Joe Pedavoli
FILE NUMBER(S):	10389 of 2009
CORAM:	Pain J
KEY ISSUES:	APPEAL :- appeal against noise abatement order made by local court - whether noise from school offensive - appeal upheld and order set aside
LEGISLATION CITED:	Land and Environment Court Act 1979 s 17 Protection of the Environment Operations Act 1997 s 268, 290 Protection of the Environment Operations (Noise Control) Regulation 2008
CASES CITED:	Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146
DATES OF HEARING:	20 October 2009 21 October 2009
DATE OF JUDGMENT:	22 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson RESPONDENT Mr R Nair SOLICITORS Legal & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

22 October 2009

10389 of 2009 Meriden School v Pedavoli

JUDGMENT

1 Her Honour: Mr Joe Pedavoli (the Respondent), his wife and two members of his family live at Vernon Street, Strathfield. Members of the Respondent’s family have lived at the site for around 38 years. At the time of purchase of the property by the Respondent, the Applicant Meriden School, (the school) was located to the rear of their property although at a much lesser scale than currently exists. Currently, the school owns the properties to the north, south and east of the Respondent’s property which together form the school’s junior campus and is bordered by Redmyre Road, Margaret Street and Vernon Street. The area to the north of the Respondent’s property is used as an access to the school and contains pedestrian paths and landscaped gardens. A pedestrian walkway at the southern end of the U-shaped school building is located to the east. A dwelling of similar style and size to the Respondent’s dwelling is located directly to the south and is currently used as the residence for the school principal. To the north-east of the Respondent’s dwelling and located inside the U-shaped school building is an open area used for outdoor activities for the schoolchildren known as the Jobling lawn. The senior school campus is very close by and lies to the east of the junior school on the corner of Redmyre Road and Margaret Street.

2 The Court visited the school’s junior and senior school campuses on the first day of hearing. I thank Commissioner Brown for his assistance in this matter.

3 On other boundaries of the junior school privately owned residences, flats and a retirement home are located. Across Margaret Street are several blocks of units. Other schools in the nearby area include St Martha’s Girls Primary School, Santa Sabina College and Strathfield Girls High. The land on which the school is located is zoned Residential 2(b) and flats and schools are permitted uses. The Respondent’s property is also zoned Residential 2(b).

4 The school has appealed against a noise abatement order made by Burwood Local Court on 24 April 2009. The order was made on the application of the Respondent in this matter, a private citizen, by a magistrate pursuant to s 268 of the Protection of the Environment Operations Act 1997 (the POEO Act). The order provides for, inter alia, the construction of a 5m acoustic barrier on the school’s property, glazing of specified windows, installation of mechanical ventilation, limitations on the number of children and permissible activities on the Jobling lawn, restricted use of yard maintenance equipment and restrictions on the level of noise permissible from children’s play activities. The sources of noise the subject of the order were children playing on the Jobling lawn in the morning (before school), at recess, at lunch time and after school and at other times and also the use of maintenance machinery such as leaf blowers, edge trimmers and lawn mowers and water gurneys during school holidays. The orders from the magistrate provided no declaration on whether the noise was defined an “offensive noise” under the POEO Act.

5 The appeal to this Court is pursuant to s 290 of Pt 9.2 of the POEO Act and is determined as a Class 1 appeal pursuant to s 17 of the Land and Environment Court Act 1979. The matter is a rehearing so that additional evidence can be relied on by the parties beyond that relied on in the local court. As the parties’ acoustic experts, Mr Cooper for the Respondent and Dr Tonin for the school, have, since the making of the order in the local court, undertaken further noise measurements, prepared new reports and prepared a joint report concerning those issues in dispute and those agreed it is unnecessary to consider the matter as heard in the local court.

Chronology

6 A chronology of the development history of the school’s junior campus can be constructed from a bundle of documents tendered by the school:

i. Consent was granted in August 1976 to the Respondent’s then neighbours to construct a tennis court. This property was later purchased by the school.

ii. On 24 July 1985 the school obtained consent from Strathfield Council (the Council) to use the tennis court for parking on condition that “any noise emanating from the use at any time shall not have any detrimental effect on the adjoining residential amenity”

iii. In 1998 the school lodged DA98/10 which sought, inter alia, consent for general school use of the tennis court. The Respondent objected to the DA in a letter from the Respondent’s solicitor dated 23 April 1998 on the grounds that unrestricted use of the tennis court by the school would interfere with adjoining residential amenity as a result of noise and nuisance caused by balls landing in the Respondent’s property. DA98/10 was considered and approved by the Council on 26 May 1998.

iv. A letter was sent to the Respondent and his wife from the Environment Protection Authority (EPA) on 29 May 2000 in response to a letter of 11 May 2000 regarding noise levels at the school. The EPA stated that the complaint made by the Respondent and his wife was not a matter within the EPA’s jurisdiction and that the Council was the appropriate regulatory authority. The EPA stated that possible solutions for resolution of the noise issue were negotiation as to times and manner of use of property and the installation of a noise barrier.

v. On 14 June 2000 the Council wrote to Michael Carroll who then represented the Respondent, who had sent a noise report on the Respondent’s behalf to the school. The letter referred to the Respondent’s objections to the 1998 development application and stated that the matter had been the subject of an investigation by the NSW Ombudsman in 1999. The Respondent relied at that investigation on a noise report prepared by a consultant, Koikas Acoustics Pty Ltd. In response the letter stated the following:

The criteria used in the consultant’s report for situations involving the playground noise is not clear. There is no prescribed criteria that can be used. The offensive criteria ie 5dB(A) above background noise is not appropriate for planning situations such as this.

According to Table 2.1 of the EPA’s Industrial Noise Policy it can be expected that the ambient Ieq background noise levels in residential areas in urban environments will be between 60 and 65dB(A). This being the case, the resultant LA10 levels are not considered overly excessive.

The existing playground noises are considered typical for the approved school activities occurring on this site.
The letter stated that no other objections had been received on the grounds of noise. The letter stated that Mr Carroll’s report would be forwarded to the school.

vi. In 2004 the school lodged DA0405/080. This DA proposed demolishing the existing tennis court and car park and replacing it with a rose garden, walkway area (not adjacent to the Respondent’s boundary) and the Jobling lawn. The Respondent’s solicitors sent four letters (three dated 16 November 2005 and one dated 24 November 2004) in relation to the Respondent’s objection to the development on the grounds of the likely increase in noise. DA0405/080 was considered at a council meeting on 23 December 2004.

vii. On 13 May 2005 the school made an application to Council to modify the consent to DA0405/080 by carrying out alterations and additions to the junior campus in order to accommodate an additional 150 students. The development application as modified and the objections made by the Respondent to the original development application were considered by a Council meeting on 15 May 2005. The modified development application was granted by the Council on 15 May 2005.

viii. On 28 February 2007 a Council officer wrote to the school confirming an agreement which was made after discussions about complaints from leaf blowing at the school. It was agreed that leaf blowers could be used on Mondays, Wednesdays and Fridays between 3pm and 4pm.

Other evidence

7 In relation to the use of maintenance equipment such as lawn mowers, the school has obtained the advice of Dr Tonin in preparing a plan of management which specifies when and how such equipment is to be used such as specifying hours of use. A letter tendered in the proceedings from the Council dated 28 February 2007 to the school refers to the approval of the use of leaf blowers for one hour on three specified days of the week. This is to comply voluntarily with the Council’s Consolidated Development Control Plan 2005 Part M Educational Establishments. In relation to the use of water gurneys and blowers the school tendered a senior school work schedule for 2008 dated 1 July 2008. This sets out the schedule for undertaking noisy activities such as leaf blowing, lawn mowing and use of a gurney to clean cement verandahs and the canteen area. The use of a gurney is for three weeks of the year for five hours a day.

8 The school relied on an affidavit of Jennifer Blackman AO sworn 21 October 2009. Ms Blackman has been on the school council since 1988 and was chairperson from 2000 to May 2009. She attests to having been involved in dealing with the Respondent’s complaints and states that the only complaints the school has received about noise have come from the Respondent and his family.

9 The Respondent relied on a report of Dr John Jacmon, a psychologist, prepared 27 March 2009. Dr Jacmon saw the Respondent and his family once for the purpose of a preparing a psychological assessment of each of the family members which was to be used in these legal proceedings. His report sets out the chronology of events as told to him by the Respondent and members of his family and he then stated that they were suffering from stress and depression as a result, he assumed, of these events. He had not seen the Pedavoli family prior to his assessment and was not involved in any ongoing treatment.

10 As stated above at par 5, each of the parties retained a noise expert. The parties prepared a joint report for the purposes of these proceedings dated 18 September 2009. The school also relied on Dr Tonin’s report dated 14 September 2009 and a supplementary report dated 12 October 2009. The Respondent relied on Mr Cooper’s report dated 11 September 2009. The Respondent also tendered an acoustic assessment undertaken by Vipac Engineers and Scientists Ltd dated 17 August 2009 which was prepared for the school for the purposes of the school’s plans to construct a new assembly hall and library. Mr Cooper and Dr Tonin refer to the Vipac report in his expert report. These noise reports are discussed below at par 17 onwards.

Relevant legislation/guidelines for measuring and assessing noise

11 A noise abatement order can be made by the local court under s 268 of the POEO Act if the local court is satisfied on the balance of probabilities that the alleged offensive noise exists.

12 Offensive noise is defined in the Dictionary to the POEO Act as follows:

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:
(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

13 The Protection of the Environment Operations (Noise Control) Regulation 2008 specifies, inter alia, restrictions on the use of power tools and equipment and air conditioners inter alia.

14 The Department of Environment, Climate Change and Water has published Noise Guide for Local Government dated August 2009 (the DECC guidelines). In Pt 2 headed Noise Assessment, the DECC guidelines state as follows:

2.1.4 Offensive noise test
In the above cases, the times of use or duration of the noise automatically make the noise offensive. In other cases it will be necessary to consider a range of factors
to determine whether the noise is offensive, including the following:
• the loudness of the noise, especially compared
with other noise in the area
• the character of the noise
• the time and duration of the noise
• whether the noise is typical for the area
• how often the noise occurs
• the number of people affected by the noise.
The checklist [below] is a guide for council officers and authorised persons to making a systematic judgment about whether a particular noise is offensive. It is important to conduct any tests at the location where the complainant is affected by the noise. This checklist is not exhaustive and it is not intended that all the questions are answered ‘yes’
before a noise can be deemed offensive. The steps taken in the test should be well documented to support the officer’s decision. The offensive noise test applies to a wide range of situations, including:
• a Noise Abatement Direction – POEO Act, sections 275–79
• a Noise Abatement Order – POEO Act, sections 268–74
• offensive noise caused by vehicles used off-road – clause 13 of the Noise Control Regulation
• offensive noise from a motor vehicle sound system – clauses 16 and 17 of the Noise Control Regulation
• offensive noise from a vessel or a musical instrument or sound system used on a vessel – clauses 30–33 of the Noise Control Regulation. The offensive noise test relies on the judgement of:
• an authorised person for Noise Abatement Directions
• a Local Court for Noise Abatement Orders Part 2: Noise assessment, August 2009 2.3
• council officers, officers authorised by the Department of Environment, Climate Change
and Water under clauses 13 and 16 of the Noise Control Regulation, and enforcement and police officers
• NSW Maritime authorised and enforcement officers, a Ports Corporation or council
enforcement officer or police officer for clauses 30–33 of the Noise Control Regulation.

When determining whether noise is offensive, officers need to have regard to the definition of offensive noise in the POEO Act and put aside any personal preferences that might bias their assessment. An example of this might be a personal preference for
classical music when assessing noise from a party playing rock music. It is important to note that an article or activity may cause offensive noise at any time of the day or night even if it occurs at a time when the use of the article or activity is permitted to be audible under the Noise Control Regulation. Although noise measurements are not essential to test whether noise is offensive, an officer may choose to take measurements using a calibrated sound level meter if they think it will assist the process, especially
to support a prosecution or where a penalty notice is likely to be challenged.

Offensive noise test: Checklist of considerations
Q1: Is the noise loud in an absolute sense? Is it loud relative to other noise in the area?
This establishes that the noise is likely to be heard by neighbours. Its volume alone may be annoying. An example would be music being played at a very high volume in a residence so it can be heard over very noisy activity outside, such as construction work. The noise may also be loud relative to the background noise. An example would be loud fireworks set off late at night. Noise measurements using a sound level meter would help to determine how loud the noise is relative to the background noise level in the area.
Q2: Does the noise include characteristics that make it particularly irritating?
The presence of tones, impulses or fluctuations in volume can make people more likely to react to the noise. These can be judged subjectively but noise measurements will help to quantify the extent of these characteristics. Examples might be screeching sounds from poorly maintained equipment or a ‘beeper’ alarm that uses a pulsed sound made up of one or two alternating frequency tones, usually higher pitched, that are louder than the background noise in the area.
Q3: Does the noise occur at times when people expect to enjoy peace and quiet? People usually expect their surroundings to be quieter during the evening and at night. Talk to the complainants about how the noise affects them to see if it is interfering unreasonably with their comfort at home. Is it regularly disturbing their sleep, making it difficult to have a conversation, study, read or hear the TV? Noise that regularly disturbs sleep is likely to be considered offensive by complainants and this should be taken into account in your assessment.
Q4: Is the noise atypical for the area?
Where noise from an activity that is causing nuisance is new or unusual for an area, people are more likely to react. Look at the typical uses of the area and determine whether the activity is consistent with the local environmental plan. An example might be a rock drill used on a residential construction site.
Q5: Does the noise occur often?
Noise can be more annoying when it occurs frequently. Examples might be a leaf blower used every morning or a band that practises frequently without regard to the impact on neighbours.
Q6: Are a number of people affected by the noise?
Only one person needs to be affected by the noise for it to be deemed offensive. However, talking to other neighbours likely to be exposed to the same noise about how it affects them may assist in deciding what action to take. Some councils have a policy of requiring a minimum number of complaints from different individuals before taking formal action.
…

2.2.2 Difference between offensive and intrusive noise
Offensive noise is a subjective concept and in a number of situations it can be assessed without the use of a sound level meter. However, in order to answer the second part of Q1 in the checklist, it may be necessary to measure the level of the subject noise above background. Measured noise levels may also be useful when discussing with others how loud the subject noise is relative to other noises in the area. An intrusive noise level (which is a certain defined level above background) requires measurement. Noise Control Notices and Prevention Notices can prescribe noise levels that need to be achieved which are below an intrusive noise level, as defined. However, when considering whether a Noise Control Notice or Prevention Notice should be issued, the
broader considerations in assessing offensive noise should be taken into account.
Even if noise is above the intrusive noise level defined in a particular policy, officers should use their discretion about whether to take action. For example, issuing a direction or notice may not be in the public interest if no one has complained.

15 The Association of Australian Acoustic consultants (AAAC) Technical Guideline for Child Care Centre Noise Assessment, May 2008 (AAAC Guideline) draft has been referred to by this Court in relation to the assessment of child care centres, see most recently Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146. The AAAC Guideline relevantly states:

Outdoor Play Area
As the duration of time that children are allowed to play outside is reduced, the overall noise impact reduces. Therefore, it is reasonable to allow a higher level of noise impact for a shorter duration. AAAC members regard that a total time limit of two hours outdoor play per day eg 1 hour in the morning and one hour in the afternoon) should allow an additional 5 dB noise impact.
Up to 2 hours (total) per day –the Leq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 db at the assessment location.

16 The NSW Industrial Noise Policy (INP) is used to determine noise levels from industrial premises and was applied by the experts Mr Cooper and Dr Tonin albeit in different ways in relation to the determination of background noise levels. The DECC guidelines also refer to and adopt the INP.

Evidence of noise measurement and analysis by experts

17 Offensive noise as defined in the POEO Act is not defined in numerical but qualitative terms. The experts agreed that as part of the analysis of whether noise was offensive, noise measurements could be taken to determine if the noise was intrusive. In their joint report the experts identified areas of agreement and disagreement as follows:

18 The experts did not agree that measurements for the assessment of background noise levels should be taken when the school was operating as Dr Tonin did. Mr Cooper considered monitoring should take place in holiday periods. Mr Cooper relies on the INP as supporting his assessment of the background noise level. Section 3.1 provides:

the background noise levels to be measured are those that are present at the time of the noise assessment and without the subject development operating. Hence, for the assessment of modifications to any existing development, the noise from the existing development should be excluded from background noise measurements.

19 In setting a noise level for planning purposes, the background level should ideally be obtained from long-term monitoring over a number of days. The majority of noise monitoring that has been undertaken at the Respondent’s property has occurred during times when the school was in operation and therefore there is potential that the background level for assessment purposes is higher then when the school is not in operation.

20 For background noise level, Mr Cooper adopts a level of 38dBLA90 although he did not conduct the noise measurements in school holidays but relies on measurements undertaken by other acoustic consultants.

21 Dr Tonin adopts a different approach. In accepting that the INP applies, he states that to provide a realistic understanding of background noise levels it is appropriate to conduct noise readings at a time when the school was not operating, but when other public schools in the area were operating. Importantly, this would allow the background noise levels to include traffic noise. As a time that allowed these two events to occur simultaneously was impractical, Dr Tonin undertook noise readings from the Respondent’s property during the operation of the school, however excluded those times when the children were not in class, that is at recess and lunchtime. In Dr Tonin's opinion, there were sufficient gaps during the four school days he undertook the noise readings to allow a proper assessment of the background noise level by excluding those times when the children were outside. This could be undertaken with some certainty given his attendance at the time of the noise surveys. He also stated that this had the additional benefit of being at a time when the Respondent’s objections were made, that is directly before and directly after outside activities by the schoolchildren and that occasional noise sources, such as pupils walking between buildings, did not influence the LA90 measurements.

22 Dr Tonin further states that a further acoustic report prepared by Vipac, for a current development application with the school also that concluded that the background noise level was 42 dB(A) LA90. The VIPAC report was prepared for a development application for conditions to the school, located directly north of the dwelling used by the principal. The data logger placed on the kindergarten lawn recorded noise levels on five days, four when the school was in session and one day of holiday (which overlapped with the first day of the period assessed by Mr Cooper). According to Dr Tonin’s summary of this data, it showed a median of 43.8 dB(A).

23 Based on his assessment approach, and confirmed by the Vipac report, Dr Tonin adopts a level of 42 dB(A) LA90.

24 The disagreement between Mr Cooper and Dr Tonin centres on the following:

· measurements of noise during the operation of the school relied upon by Dr Tonin,

· the potential for existing construction noise to influence noise measurements on data relied upon by Dr Tonin, and

· the effect of rain on noise measurements on data relied upon by Mr Cooper,

· the effect of wind speed on the data relied by Dr Tonin.

25 The reliance of Dr Tonin on measurements of noise during quiet periods when the school was operating was seen by Mr Cooper is being inconsistent with the provisions of the INP, specifically where it states that "the background noise levels to be measured are those that are present at the time of the noise assessment and without the subject development operating" (cl 3.1). Further, Mr Cooper states that at the time of the site view where Dr Tonin indicated the typical time that he conducted his noise measurements during the operation of the school, he noticed noise being generated from mechanical plant within the school. While acknowledging that the plant was likely operating at the appropriate noise criterion, it was a noise that could potentially affect the noise readings of Dr Tonin.

26 Dr Tonin carried out noise measurements to establish the background level with unmanned data loggers between 30 July 2009 and 14 August 2009. Dr Tonin also carried out noise measurements using a manned data logger on the 30 July 2009, 31 July 2009 3 August 2009, 6 August 2009 and 7 August 2009. In his opinion, the results are consistent and support his background noise level of 42 dB(A). Concern was expressed at the influence that construction noise would have on the readings however we accept that this is adequately compensated in the manned data logger readings where Dr Tonin deleted any readings that he considered would influence the noise readings. The Court accepts that the consistency between the two types of noise readings around the same time support the conclusions of Dr Tonin.

27 Dr Tonin raised concerns over the impact of rain on the noise readings of Mr Cooper. Dr Tonin provided details of rain from the Bureau of Meteorology at its closest measuring site at Homebush to suggest that there was sufficient rain to influence the noise readings however Mr Cooper stated that he had been advised by the Respondent (where the data logger was located) that no rain occurred notwithstanding the report of the Bureau of Meteorology. This matter remained in dispute between the parties and, in my opinion, is not a matter that necessarily affects the principal matter to be determined by the Court.

28 The data provided by Dr Tonin on the potential impact of wind on the noise measurements was challenged by Mr Cooper on the basis that the adjusted figures (from the record height of 10 m to a 1.5 m height that responds to the appropriate noise measurement height) were inconsistent.

29 On re examination of these figures by Dr Tonin, he accepted that one column of figures was incorrect however on re adjustment, none of the figures exceeded the 5 m/sec wind speed that would disqualify their use. I did not understand Mr Cooper to raise any objections to Dr Tonin's figures beyond that previously mentioned.

30 Dr Tonin criticised Mr Cooper’s figures as being too small a sample to provide a representative figure for background noise. In his supplementary report he provided a table where all the noise data collected by Mr Koikas and Mr Cooper for holiday and non holiday periods was collected. This demonstrated that the 37.5 dB(A) reading relied upon by Mr Cooper was the two lowest of the four figures recorded. The highest reading was 41.8 dB(A). Dr Tonin's position was that it is unreliable to rely on the lowest reading when there is clearly a range of noise level readings.

31 In balancing the competing views of Mr Cooper and Dr Tonin, I consider that the approach of Dr Tonin is to be preferred for the background noise level. There was agreement between both experts that there are many variables that can affect noise measurements and that under similar circumstances different results can be legitimately achieved. Given the difficulty in establishing an appropriate time for background noise levels, that is, when the subject school is not operating and other schools are operating, I accept that the approach adopted by Dr Tonin is a reasonable, but clearly not optimal, approach. When requested by Dr Tonin to listen, in silence to the background noise when the school was operating outside of playtime (and typical of the time used by Dr Tonin for his noise assessment), I did not notice any plant noise nor was my attention drawn to any such noise by Mr Cooper. If the plant noise did exist, then at best it was barely audible.

32 The Court also accepts Dr Tonin's conclusions that wind at the time of testing did not unacceptably impact on the noise readings and while the issue of rain impact was inconclusive, I am satisfied that it is not a factor that would overturn the general support for Dr Tonin's conclusions. Some weight must also be given to the independent Vipac report that also supports Dr Tonin's conclusions.

33 For the purposes of establishing the background of noise level, I adopt 42dB(A) LA90.

(ii) assessment criteria

34 Mr Cooper and Dr Tonin adopt a similar, but not identical criteria for the assessment criteria. Dr Tonin applied the assessment criteria identified in the Association of Australian Acoustic Consultants Technical Guideline for Child Care Centre Noise Assessment (May 2008) (the AAAC Guideline). Dr Tonin adopts the LA90 +5dB(A) where the outside school activities are greater than 2 hours and the LA90 +10dB(A) where the outside school activities are equal to or less than 2 hours. These are the levels below which it is considered that complaints are unlikely and above which complaints are more likely.

35 Dr Tonin was unaware of any instance where the AAAC Guideline has been adopted for a school, but in his opinion that is the most relevant starting point for assessing noise for school activities. The AAAC Guideline has been used on number of occasions by the Court in assessing noise impacts on child-care centres. He discussed in his evidence that there are no criteria yet developed which are suitable for assessing noise from schools. Even applying the child care centre noise guideline presented challenges as the operation of schools is different from child care centres making the application of the 2 hour time period difficult to identify. Based on the timetable for the use of the Jobling lawn attached to the Plan of Management the use of this area would be within the 2 hour period.

36 Mr Cooper adopts the LA90 +5dB(A) where the outside school activities are greater than 1.5 hours and the LA90 +10dB(A) where the outside school activities are equal to or less than 1.5 hours. Based on his observations of the school, during times of outside activities, Mr Cooper states that the appropriate criteria is LA90 +5dB(A). He considered 1.5 hours had been widely adopted over many years in this Court. The timetable for the use of the Jobling lawn showed that its use would exceed 1.5 hours. This timetable did not include other activities giving rise to noise from the school such as the playing of musical instruments, and children moving from one class to another in the open walkways. My conclusion on the appropriate assessment is that the advice of Dr Tonin is to be preferred. It needs to be borne in mind that I cannot assess the school activities in a planning sense. The assessment criteria are one aid to determining what the level of acceptable noise should be, as part of the information relevant to determining whether the noise emitted is offensive. The criteria are not to be applied as a standard the school has to meet where there is no evidence that it is not otherwise complying with its conditions of development consent.

37 The differences between the evidence of Dr Tonin and Mr Cooper is simply whether the appropriate assessment is +5dB(A) or +10dB(A) above background level and whether the period for these levels should be 1.5 hours or 2 hours.

38 The choice is made more difficult by the absence of any specific controls for schools as the AAAC Guidelines relate to child care centres. Dr Tonin helpfully provided details of the difference between the two uses in acoustical terms.

39 In balancing Mr Cooper’s evidence with that of Dr Tonin, I am more inclined to accept the approach of Dr Tonin. There was no dispute that the formalised play times, that is recess and lunch, did not exceed 1.5 hours however the noise measurements taken by Dr Tonin indicated similar noise levels prior to school and after school. These events were not regular, with some above two hours (including recess and lunch) and some less than two hours. Given the uncertainty of large groups of children arriving and leaving together (compared to the greater certainty at recess and lunch) I am satisfied that the assessment criteria should focus on the recess and lunch periods.

40 While it is not critical to the ultimate question that has to be answered, but because a large part of the evidence focussed on this issue, the appropriate assessment criteria should be background +10dB for two hours.

(iii) existing level of noise at the Respondent’s residence

41 Following the noise surveys conducted independently by Mr Cooper and Dr Tonin from the rear yard of the Respondent’s residence, there was agreement that the noise generated by the children in the outdoor play area, for the purposes of their assessments, was 60 LAeq.

(iv) impact on the Respondent’s residence

42 Mr Cooper’s assessment, using a background noise level of 38LA90 and assessment criterion of LA90 +5dB(A) and an agreed existing noise level of 60 LAeq reveals an exceedance above the criterion of 17 dB(A).

43 Dr Tonin’s assessment using a background noise level of 42LA90, and assessment criterion of LA90 +10dB(A) and an agreed existing noise level of 60 LAeq reveals an exceedance above the criterion of 8 dB(A).

44 On this basis, Mr Cooper considered the noise was offensive based on the DECC guidelines and Dr Tonin considered it was not applying the same criteria. Ultimately that is a question I must determine.

Finding on whether noise offensive

45 This is an application by a private individual seeking a noise abatement order and is not the exercise of regulatory power by an authorised officer under the POEO noise control regime. Before I can issue such an order I must determine whether the noise complained of is offensive on the balance of probabilities.

Is noise of children playing offensive?

46 One of the difficulties with the case presented by the Respondent in this Court is that he complains of the noise which emanates generally from the school such as children’s voices anywhere on the premises including while students are moving between classrooms, and the playing of musical instruments, without specifying the source or nature of the noise within the school in any detail. In other words the submissions have included reference to noise sources beyond the Jobling lawn and from the use of maintenance tools, which was the focus of the local court proceedings and was the focus of much of extensive expert evidence collected by the parties. This makes the case of the Respondent difficult to identify and also difficult for the school to respond to. All noise that emanates from the normal activities at a school is not offensive. The focus of the case should be that element of the noise above normal school operations which is identified as offensive but no such category of noise has been clearly identified by the Respondent despite attempts to define the offensive noise by him. There is no particular sound above the usual ambient noise expected of a school environment which is particularly identified as giving rise to offensive noise apart from noise resulting from the children’s use of the Jobling lawn, and the use of blowers and gurneys. In the absence of such specificity in the Respondent’s case, I do not consider there is evidence to enable me to consider any other aspect of the activity at the school which may give rise to noise beyond these two areas.

47 I will consider the DECC guidelines in relation to the suggested checklist for consideration of offensive noise for the children’s noise as set out above in par 14. As to whether the noise is loud in an absolute sense based on both Mr Cooper and Dr Tonin’s evidence and measured levels the answer is yes. As identified above I have accepted Dr Tonin’s methodology and data measurements on assessment criteria and background noise levels. These suggest that the noise levels are acceptable and not unnecessarily intrusive.

48 In relation to characteristics of the noise, the noise does not include any characteristic that is particularly irritating. There is no evidence for example that the children’s voices are tonal. The noise occurs only during the day not at night or in the evening and is intermittent during the daytime in accordance with school hours. A timetable for the use of the Jobling lawn which is within two hours over the course of the day is attached to the plan of management prepared by Dr Tonin and included in his evidence. The answer for this issue is no.

49 In relation to whether the noise occurs at times when people expect peace and quiet, the noise inside the Respondent’s residence is acceptable. The experts agreed that there is a diminution of 10dBa when inside with the windows open. There is a diminution of 20 dBa if the windows are closed. If double glazed windows are installed the diminution can be in the range of 25 to 45 dBa depending on the type of window installed. These reductions need to be compared to the agreed 60dB(A) measurements when the playground is used and the background level of 42dB(A). The DECC guidelines refer to the circumstance that people expect their surroundings to be quieter during the evening and at night. None of the noise is heard at these times. Sleep disturbance is not an issue. The answer for this issue is no.

50 As to whether the noise is atypical for the area, the senior school is virtually next door and opposite that campus in Margaret street is another school Santa Maria Del Monte. There are at least three or more schools in close proximity to the school according to Universal Publishers, UBD Sydney and Blue Mountains Street Directory (45th edition, 2008), being St Martha’s Girls Primary School, Santa Sabina College and Strathfield Girls High School. Trinity Grammar Preparatory School is also not far away. The junior and senior campuses of the school are surrounded by residential areas which include free standing houses and several blocks of flats. I do not consider the noise is new or unusual for the area. The school is in the appropriate zoning and can be expected to continue there. The use is what is expected of a school. It only occurs at certain times in accordance with school hours. The answer for this issue is no.

51 The noise does occur often. According to the affidavit of Ms Blackman the only complaints made about noise to the school are from the Respondent’s residence. That is occupied by four people including a 4 and a half year old child. There is no evidence of any other complaints from any other residential premises, of which there are many surrounding the school. I note that there were objections received from other people when the Council was considering the school’s development applications in 1998 and 2004. Some submissions raised concerns about noise. These would have been considered by the Council before those development consents were granted. This history does not suggest that anybody beyond the Respondent’s residence is affected sufficiently to complain to the school.

52 There is no evidence of non-compliance with the conditions of consent. The issue of noise has been extensively ventilated before the Council when it granted development consent in 1998 and 2004. There was an Ombudsman inquiry in 1999 as a result of the Respondent’s complaint. He objected to how the school’s 1998 development application was dealt with by the Council. The letter from the Council to the Respondent’s representative dated 14 June 2000 (par 6(v)) is important. It identifies that there is no prescribed criteria that can be used for playground noise. It identifies that the area would be classified as urban under the INP and that the ambient background noise levels in residential areas will be between 60 and 65dBa. Further it states that the existing playground noises are considered typical for the approved school activities occurring on this site. That continues to be the case today.

53 In relation to the statutory definition of offensive noise (par 12(a)(i)), the test of harm resulting from noise is objective not subjective. There is no evidence that the noise from the school is harmful in an objective sense to a reasonable person who is outside the premises. That the Respondent and his family consider they suffer harm, namely stress and depression, and have told the psychologist Dr Jacmon, who confirms that is their belief, is unfortunate but that evidence is essentially irrelevant to the matters I must consider. In relation to whether a person’s rest and repose is affected outside the premises (par 12(a)(ii)), once again the test is that of a reasonable person. I have held above that rest and repose inside the house is not affected. In relation to outside the Respondent’s house I do not consider that a person’s rest and repose would be unreasonably interfered with. A school is a land use that is considered appropriate and acceptable in a residential environment based on the residential 2(b) zoning.

54 I do not consider the ambient noise from children playing on the Jobling lawn is offensive within the definition in the POEO Act.

(vii) Maintenance equipment

55 While the use of maintenance equipment by the school was raised in expert reports I note that the school has voluntarily had Dr Tonin prepare a plan of management for the school which includes the operation of maintenance equipment including limiting the hours of use. The only equipment about which there continues to be an issue is the use of blowers and gurneys on school premises. I am informed that the school intends that these be operated by a private contractor in accordance with the plan of management and the work schedule provided in Court.

56 Use of such equipment is not otherwise illegal under the POEO Act and Regulation and is not intended to take place adjacent to the Respondent’s residence. In light of these matters I do not consider the operation of maintenance equipment at the school with the measures in place is offensive noise.

57 The school appears to have made considerable efforts in relation to the amelioration of noise impacts at the Respondent’s residence. In 2004 it applied for development consent to move the tennis court, the subject of much complaint from the Respondent, and car park adjacent to the Respondent’s residence. These were moved elsewhere and replaced by the existing rose garden and walkways where the carpark was previously and the Jobling lawn. I note that the school has voluntarily paid approximately $8000 for double glazed windows to be made for the Respondent’s house presumably after discussion and on the basis that this was acceptable to the Respondent and his wife. There has been delay in having these installed for reasons I am unaware of. The parties have told the Court during the hearing that it is agreed that these windows be installed at the school’s cost in the Respondent’s residence. The school has also offered to buy the Respondent’s residence in the past but the parties have been unable to reach an agreement on a price.

58 The school’s appeal against the noise abatement order is upheld.

Orders

59 The Court makes the following orders:

1. The appeal is upheld.

2. The noise abatement order made in Burwood Local Court on 24 April 2009 is set aside.