Midson Road Joint Venture v Parramatta City Council; Seven Network (Operations) Limited v Parramatta City Council
[2004] NSWLEC 381
•06/02/2004
Land and Environment Court
of New South Wales
CITATION: Midson Road Joint Venture v Parramatta City Council; Seven Network (Operations) Limited v Parramatta City Council [2004] NSWLEC 381 PARTIES: 11185 of 2003
10042 of 2004
APPLICANT
Midson Road Joint Venture
RESPONDENT
Parramatta City Council
APPLICANT
Seven Network (Operations) Limited
RESPONDENT
Parramatta City CouncilFILE NUMBER(S): 11185 of 2003; 10042 of 2004 CORAM: Pain J KEY ISSUES: Development Application :- consent orders for the filling of an old brickworks site prior to the carrying out of residential development - maximum number of trucks to be permitted to enter the site per day - noise dust and traffic impacts LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/05/2004
19/05/2004
21/05/2004EX TEMPORE
JUDGMENT DATE :06/02/2004 LEGAL REPRESENTATIVES:
11185 of 2003APPLICANT
Mr M Craig QC with Mr C McEwen
SOLICITOR
Abbot ToutRESPONDENT
Mr J Johnson
SOLICITOR
Storey & Gough10042 of 2004
APPLICANT
RESPONDENT
Mr J Robson
SOLICITOR
Mallesons Stephen Jaques
Mr J Johnson
SOLICITOR
Storey & Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPAIN J
2 June 2004
11185 of 2003 MIDSON ROAD JOINT VENTURE v PARRAMATTA CITY COUNCIL
EX TEMPORE JUDGMENT10042 of 2004 SEVEN NETWORK (OPERATIONS) LIMITED v PARRAMATTA CITY COUNCIL
1 HER HONOUR: I have before me two Class 1 appeals concerning the same development. The first, matter number 03/11185, is an appeal brought by Midson Road Joint Venture (“the Applicant”) against a condition imposed by Parramatta City Council (“the Council”) on a development consent granted to the Applicant in relation to the filling of a substantial hole left on an old brickworks site in Midson Road, Eastwood. The second, matter number 04/10042, is a third party objector appeal brought by Seven Network (Operations) Limited (“Channel Seven”) against the grant of that consent. In these two proceedings the Court is being asked to approve consent orders which have been finally agreed by the parties after some two and a half days of hearing.
2 I would like to thank Senior Commissioner Roseth for the assistance he provided to me in relation to these proceedings.
The Midson Road Joint Venture Proceedings
3 Development consent has already been given by the Council for the development of Stage 1 of the site (“the Stage 1 Consent”). The Stage 1 Consent allows a substantial amount of fill material to be brought to the site and for the filling to occur on the basis that 60 trucks per day are able to come to the site for the filling operation.
4 The Council has also approved the development of Stage 2 of the site (“the Stage 2 Consent”) and it is this Stage 2 Consent which is currently before me. The Stage 2 Consent granted by the Council permitted, like the Stage 1 Consent, a maximum of 60 trucks of fill per day coming to the site. It is this provision of the Stage 2 Consent that has been appealed against by the Applicant and the major change to the conditions of the Stage 2 Consent which is sought by the Applicant in this Class 1 appeal is to allow for 130 trucks per day to come to the site on the basis that 50 per cent of the trucks would travel along Carlingford Road and Midson Road to the site with the other 50 per cent travelling along Marsden, Terry and Midson Roads to the site.
5 I am informed that if 60 trucks per day are used, it is estimated that it will take approximately six years to fill the substantial hole, whereas if 130 trucks per day are used, it is estimated that it will take approximately three years to fill the hole. There is general agreement amongst the parties and resident objectors who gave evidence in the Council’s case that it is appropriate that the hole at the site be filled and that the master plan for the site, which provides for a residential estate to be built, be implemented.
6 The real issue is whether this process should take place in three or six years because of resident concern about the adverse impacts on them resulting from 130 trucks per day coming to and leaving the site. The Council, in putting forward these consent conditions with the Applicant, has formed the view that it is appropriate that the project be completed earlier rather than later.
7 The Court heard at the site inspection on the first hearing day concerns from ten residents who live along Midson Road and Terry Road and other roads surrounding the site about truck noise and truck driver behaviour in relation to the implementation of Stage 2 of the development in particular. The residents gave evidence to the Court that they considered that 130 trucks attending the site each day to be excessive and that they wished the number to remain at 60. Other concerns expressed by the residents concerned dust and noise impacts from the fill operations being adequately controlled. Also at the site inspection, one resident in an adjoining street and one owner of a neighbouring property spoke in favour of having the larger number of 130 trucks applied in order to complete the project in a shorter time.
8 The Court has had the benefit of hearing from the parties’ respective experts in relation to noise from traffic, noise from fill operations and dust impacts, and was able to put to the experts the concerns expressed by residents at the site visit. According to the traffic engineers, 130 trucks per day split 50/50 on approach was not a significant increase in the overall volume of traffic on Midson and Terry Roads. However, it was the evidence of the traffic experts that 130 trucks per day would possibly double the number of heavy trucks on these roads. This clearly will impact on residents. According to the noise experts, the noise generated by these 130 trucks arriving in the 50/50 split identified above is just within the protective noise limits specified in the relevant Department of Environment and Conservation guidelines and was considered acceptable. Of greater concern to the Council’s noise expert was the noise from the fill operations on site, particularly as the fill height increases so that operations will be closer to the surface and consequently noisier for residents. To address this, the noise experts recommended conditions relating to the provision of a complaints procedure so that noise from the site over a specified level as measured in complainants’ living areas, and the provision of compensation to affected residents in a designated zone. I accept the experts’ recommendations that the protective measures now agreed to be included in the conditions are appropriate in the circumstances to ameliorate the impacts of the fill operations.
9 The experts on dust also gave evidence that, provided the stringent controls specified in the conditions were adhered to, appropriate limits on dust could be maintained in relation to surrounding residences. These dust controls rely on adequate water being available to the site. The Court has been told that it is the intention of the Applicant to use water harvested on the site and not use the mains system if at all possible. It is possible that, based on the average rainfall figures contained in the Environmental Impact Study, there will be insufficient water harvested on site during Stage 4 which is the last stage of this operation. The Court has been told that operations can be modified and reduced to reflect the lack of water available to be harvested on the site if necessary. An appropriate condition reflecting the need for the Applicant to seek consent to use the mains system in the event that harvested water is insufficient has been agreed by the parties as condition 33 in the modified consent conditions handed up in Court today (“the Agreed Conditions”). I consider that this is an appropriate condition to impose.
10 The Agreed Conditions, while providing for 130 trucks per day on the 50/50 split approach basis, now have a greater number of protective mechanisms in relation to traffic, noise and dust control than those attaching to the original Stage 2 Consent against which the Applicant has appealed.
11 I further note that the traffic management plan required by the conditions has been further modified to take into account both the concerns expressed by residents and the experts’ views and also that the Agreed Conditions now limit the number of the trucks arriving in any one hour of the day to 40.
12 I consider an important part of the Agreed Conditions is the provisions made for the monitoring of both the operations at the site and the trucks attending the site. This monitoring will be able to be done by local residents through various mechanisms including a specified complaints procedure and the provision of information on a public website, on which key data will be updated regularly.
13 Balancing the various parties’ concerns and the objectors’ concerns in these circumstances has been difficult. Having had the benefit of hearing from resident objectors and of hearing in detail from the parties’ experts, I consider that a modified consent should be issued in accordance with the Agreed Conditions.
The Channel Seven Proceedings
14 I now need to deal briefly with proceedings 10042 of 2004, the appeal by Channel Seven as a third party objector. The evidence in proceedings 11185 of 2003 was also admitted in relation to these proceedings. Section B of the Agreed Conditions, which are found in exhibit O, relate to the matters of concern to Channel Seven in proceedings 10042 of 2004 all of which have been adequately addressed. I intend to make an order issuing the same development consent conditions in relation to proceedings 10042 of 2004 as in the previous matter so that section B forms part of the same development consent conditions contained in exhibit O.
15 In relation to proceedings 11185 of 2003 the orders of the Court are that:
1. The Applicant’s appeal be upheld.
2. Development consent be granted to development application no. 1E/00668/03 lodged with the Respondent on 4 April 2003 for stage 2 fill and compaction works within the Eastwood brickworks quarry comprising 560,000m3 of VENM associated with future residential development and rehabilitation, on Lot 53 DP 8453, Lot A DP 333558, Lot 1 DP 55379, Lot 1 DP 128925, Lot 1 DP 947317, Lot 1 DP 955678 and Lot 1 DP 984965, being 37-39 Midson Road, Eastwood NSW subject to the conditions in Annexure A.
3. The exhibits, except exhibit O may be returned.
16 In relation to proceedings 10042 of 2004 the orders of the Court are that:
1. The Applicant’s appeal be dismissed.
2. Development consent be granted to development application no. 1E/00668/03 lodged with the Respondent on 4 April 2003 for stage 2 fill and compaction works within the Eastwood brickworks quarry comprising 560,000m3 of VENM associated with future residential development and rehabilitation, on Lot 53 DP 8453, Lot A DP 333558, Lot 1 DP 55379, Lot 1 DP 128925, Lot 1 DP 947317, Lot 1 DP 955678 and Lot 1 DP 984965, being 37-39 Midson Road, Eastwood NSW subject to the conditions in Annexure A.
3. The exhibits, except exhibit O may be returned.
Annexure A
1. Consent is granted to the development application for the placement and compaction of 560,000m3 of VENM fill at 37-39 Midson Road, Eastwood.
2. The Applicant shall arrange for a Road Safety Audit to be undertaken by a suitably qualified consultant for the Midson Road/Terry Road corner prior to any increase in the number of fill trucks attending the site above 60 trucks per day.
The Applicant shall at its cost, undertake any works recommended by the report of the consultant.
3. In respect only to the importation of the 560,000m3 of VENM fill to the said site in accordance with this consent, the Applicant shall pay the sum of $0.03c per tonne per kilometre along Midson Road and Terry Road only for each fill truck that enters the site.
4. The fill trucks entering and leaving the site shall not exceed 40 truck movements per hour.
5. Upon the commencement of works, the Applicant will publicise all relevant noise vibration, traffic and air quality monitoring data on a public website on a monthly basis, within two weeks of the end of each calendar month.
The traffic data shall include truck numbers, volume and weight of material and direction from which the truck enters and leaves the site.
6. The development shall be undertaken in accordance with the Traffic Management Plan approved by Council on 19 March 2004 except as amended by this consent and the requirements of the Road Traffic Audit.
7.1 Development Consent no. JT/01789/99 dated 24 December 1999 and issued by the Council (“the Stage 1 consent”) shall be modified so that it is limited in time to 6 years from the date of the commencement of this consent.
7.2 Should the applicant determine that the number of truck loads of fill brought to the subject site shall exceed 60 per day then notice of such intention shall be given to Council.
7.3 Upon such notification the Stage 1 consent shall be modified to permit 130 truck loads per day of fill to be brought to the site.
7.4 The conditions of this consent also apply to the Stage 1 consent from the date of modification referred to in condition 7.3 above. A reference to commencement of work in these conditions is deemed to be a reference to the commencement of work which follows the modification referred to in condition 7.3.
8. No more than 130 truck loads of fill are to be brought to the site on any day. This consent is limited to six years from the date of commencement.
9. 50% of the trucks are to travel along Carlingford Road, and Midson Road to the north of the site, and 50% of the trucks are to approach and leave the site via Marsden Road, Terry Road and Midson Road to the south of the site. The haulage routes used by trucks shall be designated heavy vehicle routes and within the tonnage limit of the trucks travelling to/from the site.
10. Ingress and egress to the site for trucks and all plant associated with the works approved by this consent or Development Consent JT/1789/99, shall only be provided from Midson Road via the existing driveway and the driveway approved by Development Consent JT/297/03, located to the north of the proposed site office.
11. The fill material imported to the site is to be virgin excavated natural material (VENM). The applicant is to employ a suitably qualified person to ensure and certify that every truck load of fill is virgin excavated natural material. Records of each individual certification are to be kept on site and produced for inspection when requested.
12. The importation of fill and any other activity associated with the filling and stabilisation of the site are to be carried out only between the hours of 8am and 4.30pm, Monday to Friday inclusive. No works are to be carried out on Saturdays, Sundays or public holidays.
13. Prior to the commencement of works, a detailed Environmental Management Plan (EMP) prepared and certified by a suitably qualified person is to be submitted to Council. The EMP is to address the following:
· The removal of noxious plant species on the site. The removal is to be undertaken by a qualified horticulturalist experienced with weed removal. In addition, a program for follow up inspections and further weed removal is to be provided.
· The identification of the location and number of plants of Convolvulus erubescens present on the site to avoid any impacts upon the plants during works on the site. The details are to be provided on a clearly defined map, suitable for staff to locate and implement appropriate protection measures.
· The amendment of Appendix A of the Flora and Fauna Assessment Report prepared by Gunninah, January 2003 to include plant species specifically associated with the riparian zone along Terry’s Creek and to also provide an indication of species useful for revegetation works.
· During and post construction monitoring of settlement and groundwater level.
· The methods to be employed to ensure that 75% control of dust emissions during grading activities can be achieved.
· Provide specific dust control measures and monitoring procedures which include, but are not limited to, the permanent operation of a meteorological station on site to enable real-time access to site wind speed and direction data.
· Installation of dust monitoring equipment that provides real-time dust readings to enable proactive dust management to occur.
· Identification and provision of measures and monitoring regimes to ensure water quality.
· Provision of sediment and erosion control devices on the site.
· Provision of baseline water quality sampling shall be carried out in Terrys Creek and in the quarry for heavy metals and hydrocarbons. Additionally, testing for faecal coliforms shall be undertaken to assess if there is an existing problem of sewer overflows into the quarry or the waterways. Baseline monitoring is to be undertaken prior to commencement of emplacement activities on site.
· Provision of suitably detailed designs to enable the sedimentation ponds to have sufficiently high banks to prevent overtopping so that they can continue to be used for sedimentation and for flocculation to allow settlement of the fine particles prior to discharge to Terrys Creek or to Council’s stormwater system.
· Clarification of Figures 2 to 5 in the Surface Water Management During Filling Stage Final Report prepared by Coffey Geosciences to demonstrate how dirty water will get to the primary sedimentation pond, then to the secondary pond and finally discharged to either Terrys Creek or to stormwater drains Arrows showing the direction of dirty water flow shall be clearer and location of pumps and any rising mains shown.
· A detailed method of how the proponent proposes to ensure that mud from vehicle tyres will be kept from being taken onto roads.
· A procedure for managing runoff as a result of multiple storm events.
· In order to demonstrate stormwater reuse, information shall be provided to address the use of the captured stormwater in the sedimentation basins, for irrigation of re-vegetated areas.
· Provide a detailed description of the processes to be applied to permit discharge of stormwater from the sedimentation basins. An automatic system where the runoff is pumped when the sedimentation pond is full would not ensure that the water quality of the discharge meets ANZECC Guidelines. The water to be pumped to the waterways shall be tested to ensure that it is not polluting the waterways.
· Further detailed description of the final OSD requirements for the site and how they will be satisfied ensuring that stormwater discharge from the site does not exceed 3.7 cumsecs in a 1% AEP event.
14. The applicant is to fund the design and reconstruction of the south east corner of the intersection of Carlingford Road and Midson Road prior to the commencement of works. The design is to be to the satisfaction of Council and is to ensure that trucks can negotiate the corner without mounting the kerb.
15. A standard “Cattle Grid” type structure to be installed adjacent to the truck egress point of the site and within the boundaries of the site and the paved surfaces are to be kept clean to prevent soil or wheel borne material from being tracked onto Midson Road. The structure is to be of appropriate width and load capacity to suit the heaviest vehicles to be accessing the site and have a pit of minimum 500mm deep below the surface level of the steel grid.
16. All work associated with the proposed development shall be at no cost to Parramatta City Council or the Roads and Traffic Authority.
17. At all times during work, the applicant is to ensure that the policies identified in the Conservation Plan prepared by Eric Martin and Associates, dated 31 January 2003, are adhered to. Specifically, as identified in the Plan, the patent kiln, 3 of the downdraft kilns and the two chimneys are to be retained.
Reason – to protect the heritage significance of the site.
18. Prior to the commencement of works, the applicant is to submit a schedule of essential maintenance and protective measures, prepared by a suitably qualified person, to ensure the long term retention of the patent kiln, 3 of the downdraft kilns and the two chimneys identified in the Conservation Plan prepared by Eric Martin and Associates, dated 31 January 2003.
Reason – to ensure the long term retention of the heritage items.
19. Prior to the commencement of work, the applicant must obtain a Part 3A Permit from the Department of Planning Infrastructure and Natural Resources (DIPNR). To obtain a Part 3A Permit, the applicant must demonstrate compliance with the Departments General Terms of Approval (attached).
20. Prior to the commencement of works, and prior to the issue of a construction certificate, a copy of the Part 3A Permit referred to in condition 19 is to be submitted to Council.
21. The applicant is to prepare a Remediation Action Plan (RAP) in accordance with the recommendations contained within the Environmental Site Assessment – Eastwood brickworks prepared by Coffey Geosciences dated 17 April 2002. Upon completion of the remediation works. The RAP is to be prepared by a suitably qualified person and is to be submitted to Council prior to the commencement of remediation works.
22. Upon completion of the remediation works contained within the RAP, a Validation Report, prepared by a suitably qualified person and in accordance with the EPA Guidelines is to be submitted to Council. The Validation Report is to be reviewed by an accredited site auditor under the Contaminated Land Management Act, 1997 and the accredited site auditor is to provide Council with a copy of the subsequent Site Audit Statement.
Reason – to ensure appropriate remediation measures are carried out.
23. Any liquid or solid (contaminated) wastes generated on the site must be collected, transported and disposed of in accordance with the Protection of the Environment Operations (Waste) Regulation, 1996 and the EPA publication Assessment, Clarification and Management of Liquid and Non-Liquid Wastes 1999. Official receipts/invoices shall be kept for all liquid and solid waste disposal off site and copies submitted to Council.
24. As stated by Coffey Geosciences Pty Ltd in correspondence dated 20 October 2003, the fill is to be compacted to a minimum of 98% Standard Density Ratio at a moisture content within –1% to +2% of Standard Optimum Moisture Content.
25. Prior to the commencement of works, the applicant is to submit to Council a Management Plan prepared by a suitable qualified person for the cleaning of the proposed detention ponds. The Plan is to specify controls for the management of odour.
26. The applicant is to implement and comply with the stabilisation measures specified in the Preliminary Geotechnical Assessment prepared by Coffey Geosciences Pty Ltd dated 10 December 2002.
27. The applicant is to implement and comply with the measures specified in the Surface Water Management Report prepared by Coffey Geosciences Pty Ltd dated March 2003.
28. Prior to the commencement of works, a detailed community consultation program is to be developed and implemented for the duration of the works. The program must address any issues raised by the community and must include but not be limited to a Community Liaison Group (CLG) that would meet monthly and have access to any monitoring information. The CLG members would be consulted about ways to minimise impacts.
29. The applicant must undertake a dilapidation survey of properties within the “Noise Attenuation Zone” on the Plan attached and marked A and must advise Council of the completion of the survey prior to the commencement of works.
30. The development shall be implemented in accordance with the Environmental Impact Statement prepared by MG Planning Pty Ltd dated April 2003 and on the application form and on any supporting information received with the application except as amended by these conditions.
31. Prior to the commencement of work, the applicant is to prepare a plan to maximise the recycling of water currently collected in the pit. The plan is to include, but not be limited to activities such as the use of recycled water to damp down dust and wash trucks.
32. Site Roads, working areas and transfer points to be treated regularly with a dust suppression system. Areas that are susceptible to wind shall be treated with a suitable binding agent in addition to water. Similar chemical agents may be added to water to suppress dust and optimise water usage.
33. Sufficient water to meet the needs of the dust suppression system must be provided using water collected on site. In the event that that there is insufficient water to meet such needs, the applicant may make application to the relevant authority to obtain water from off site, but if no approval is given the applicant must reduce the filling operation to ensure compliance with conditions 48 and 49 of this consent.
34. A pump or pumps are to be installed on the site so that water can be delivered with sufficient pressure to ensure that all areas on the site capable of generating dust may be treated with water.
35. In case of failure of any component of the dust suppression system, site operations will be suspended.
36. Vehicle speeds onsite are restricted to 10 km/hr.
37. The crushing plant area and other transfer points such as unloading/dumping areas are to be equipped with water/mist sprays so that dust is suppressed when transferring materials. The sprays shall be in operation whenever the unit is in operation. Chemical binding agents may be added to the mist to enhance dust suppression.
38. The crushing plant and all other transfer points amenable to enclosure, are to be covered in order to minimise entrainment of dust by wind.
39. Drop heights are to be minimised at all transfer points such as the crushing plant.
40. The site foreman is to ensure regular inspection and treatment of visible dust using hoses is undertaken. Mobile sprinklers must be available for use when required, and shall be placed strategically so that dust suppression may be undertaken regardless of wind direction.
41. All trucks must be covered during transport of material to the site. Covers or alternative measures shall be employed for short haul trips within the working area as required to avoid dust dispersion.
42. Sealed surfaces are to be cleaned weekly to reduce surface loading of fine particulates.
43. Surface dust suppression using watering shall be at a rate greater than 2 Litres/Sq. Meter/Hour, to maximise control by maintaining a surface moisture content of approx. 4%.
44. A dust suppression system is to be applied to all areas undergoing grading operations. This shall be done with either water/mist spray bars fitted to the unit or using a water cart to suppress dust immediately after grading.
45. A dust control compliance system shall be developed. This will consist of a set of reference photos showing (1) good (2) acceptable and (3) unacceptable levels of dust emissions from specific operations on site. These operations would include:
· Crushing
· Unloading and or dumping of material
· Vehicle/truck movements
· Grading
· Dozing.
46. The applicant shall install PM10 and dust deposition monitoring gauges in accordance with figure 14 of the Coffey Geoscience Report “Air Quality Studies” with an additional site on the western site boundary adjacent to residential properties. The monthly results of the monitoring shall be submitted to Council and published monthly on a public website.
47. Subject to these conditions, the Developer is to implement and comply with the air quality control measures specified in the Air Quality Report prepared by Coffey Geosciences Pty Ltd dated 26 March 2003.
48. Except where EPA/DEC monitoring indicates widespread elevated regional dust levels which are unrelated to the development, dust deposition levels (as determined by monitors on the northern boundary of the Site) must not exceed
(i) 4(g)/m2/month averaged yearly; and
(ii) 5(g)/m2/month in any individual month.
49. PM10 concentrations, as determined by the DustTrak monitor or such other monitor as the EPA may require must not exceed 50 micrograms per cubic metre averaged on a 24-hour (clock) basis more than 5 times per year (except where EPA/DEC monitoring indicates widespread elevated regional dust levels which are unrelated to the development).
50. The applicant is to implement and comply with the noise mitigation measures specified in the Noise and Vibration Assessment prepared by Wilkinson Murray dated March 2003.
51. Prior to the commencement of works, the applicant shall put in place a procedure for receiving complaints from residents relating to noise generated by the development ***. Where complaints relate to excessive noise levels within the Living Areas* of dwellings, and for dwellings contained within the "Noise Attenuation Zone" as illustrated in the plan marked A, upon the receipt of a complaint, the applicant shall arrange for a Qualified Acoustic Engineer** to attend the complainant property.
* Living areas are defined as lounge rooms or areas, dining rooms or areas, family rooms, studies and sunrooms but exclude bedrooms, kitchens, laundries and other rooms of a dwelling.
** A Qualified Acoustic Engineer shall have qualifications eligible for membership of the Association of Australian Acoustical Consultants (AAAC) and as approved by Council (which approval shall not unreasonably be denied).
*** “Noise generated by development” includes all noise generated from within the site and noise generated by trucks entering and leaving the site.
52. Where the noise levels within the Living Areas generated by the development exceed the noise level criteria in the respective categories contained in Australian Standard AS2107-2000 and in particular 'satisfactory' levels with windows closed and 'maximum' levels with windows open, the engineer shall recommend to the resident a range of practical measures to meet the Standard.
53. The applicant shall compensate the resident an amount of $3,000 to carry out the recommended measures. The compensation is limited to one payment per dwelling.
54. For all dwellings outside the Noise Attenuation Zone illustrated on the plan marked A, the applicant shall comply with the noise limits specified in condition 52 above.
55. The applicant shall put in place a noise monitoring program and report to Council on a three monthly basis the measured LA10(15 min) noise levels generated by the
development at any point within the residential boundary of the following premises;
No Residence LA10 (15 min) Noise Limit 3 Cobac Avenue 51 72 Midson Road 62 62 Midson Road 61 45 Midson Road 58 96a Mobbs Lane 59 50 Mobbs Lane 64 15 Skenes Avenue 57 44 Valley Road 60 28 Valley Road 58
56. In the event that the La10(15min) noise level is exceeded at any location the applicant shall apply all reasonable and feasible methods of ameliorating the noise which may include the use of temporary shielding along Midson Road boundary, the north eastern boundary to Mobbs Lane, the western boundary to Valley Road and the Southern Boundary to Cobac Avenue and Skenes Avenue.
Noise levels shall be measured in accordance with Australian Standard AS1055-1977.
57. In the event that the above maximum noise limits are still exceeded the number of truck loads per day shall be reduced until the maximum noise level is achieved.
58. The applicant shall put in place the following noise amelioration measures;
(i) The existing earth bund situated along the western and southern boundaries shall be maintained throughout the fill operation, except where it conflicts with the provision of water management measures or the construction of new residences. In these areas the bund shall be replaced with a temporary barrier or the provision of new residences.
(ii) When stockpiles of existing bricks are removed in the southern area of the site, a noise barrier shall be provided of equivalent height along the southern boundary to Cobac Avenue.
(iii) Simultaneous use of mobile and fixed plant utilised on site shall be restricted to the following number, type and noise level;
Number operating on site Plant Item Sound Power Level dB re 1 pW 1 Crusher 116 1 Excavator 106 2 Road Truck 109 1 Front End Loader 111 1 Compactor 115 1 Dozer D9 or D10 115 1 Roller 111 1 Water Cart 109 1 Scraper 119 5 Water Management Pumps (with acoustic enclosure) 95 (iv) The water management pumps and the dumping stations shall be fitted with partial acoustically lined enclosures to shield the equipment from direct line-of-sight to any residence. Details of the acoustic enclosures shall be submitted to Council .
(v) The crusher shall be fitted with an acoustically lined enclosure to shield the equipment from direct line-of-sight to any residence. Details of the acoustic enclosure shall be provided to Council . If noise attributable to the crusher causes the LA10(15 min) Noise Limit defined in Condition 53 to be exceeded, then the use of material requiring crushing shall be limited to 1 hour per day.
(vi) The applicant shall evaluate the BBS-TECH BACKALARM as described at (or equivalent) as a replacement for the “beeping” alarms used on mobile plant. In the event that the alarm is a lawful alternative then the units shall be fitted to all plant on site. If use of the alarm is lawfully prohibited, then the BBS-TECH SMARTALARM shall be likewise evaluated. If use of neither alarm is lawfully permitted then the operation of mobile plant on site shall be reviewed to minimise the need for mobile plant reversing on site.
SECTION B
The following conditions are specifically intended to mitigate the impact of the development on the land comprised in Folio Identifiers 1/732070, 2/732070, 1/570891, 2/570891 and 4/219907, presently occupied by Channel Seven (“Seven”).
S1 Traffic
Mobbs Lane is not to be used as an access or egress route by any trucks involved in the importation of fill for the Site.
(a) Subject to S2(b), S2(c) and S2(d), the Developer is to implement and comply with the air quality control measures specified in the Air Quality Report prepared by Coffey Geosciences Pty Ltd dated 26 March 2003.
(c) Except where EPA/DEC monitoring indicates widespread elevated regional dust levels which are unrelated to the development, dust deposition levels (as determined by monitors on the northern boundary of the Site) must not exceed:(b) The continuous monitoring outlined in the Air Quality Report prepared by Coffey Geosciences Pty Ltd must be located on the boundary opposite the Seven Site (meaning the whole of the land comprised in Folio Identifiers 1/732070, 2/732070, 1/570891, 2/570891 and 4/219907). A DustTrak monitor must be situated on Mobbs Lane.
(ii) 5(g)/m2/month in any individual month.(i) 4(g)/m2/month averaged yearly; or
(d) PM10 concentrations, as determined by the DustTrak monitor situated on Mobbs Lane, must not exceed 50 micrograms per cubic metre averaged on a 24-hour (clock) basis more than 5 times per month (except where EPA/DEC monitoring indicates widespread elevated regional dust levels which are unrelated to the development).
(b) All practical measures must be applied to minimise excessive construction activities that may cause airborne noise to exceed ambient noise levels by 10db(A) at the facades of the offices and studio walls of the Television Centre on the Seven Site.(a) Subject to S3(b), the Developer is to implement and comply with the noise mitigation measures specified in the Noise and Vibration Assessment prepared by Wilkinson Murray dated March 2003.
(a) Unless agreed by Seven for periods when the studios are not in use, no process shall be used on the development site that may cause a level of vibration on the buildings on the Seven site exceeding the limits in Table 1 below.
Table 1
Both parameters in the table below are measured in accordance with AS2670.2-1990.
Frequency Acceleration Level (rms)
Hz m/ s2
(Dev site) (Studios)
1 2 x 10-2
1.25 17.8 x 10-3
1.60 16 x 10-3
2.00 14 x 10-3
2.50 12.6 x 10-3
3.15 11.4 x 10-3
4.00 10 x 10-3
5.00 10 x 10-3
6.30 10x10-3
8.00 10x10-3
10.00 12.5 X 10-3
12.50 15.62 x 10-3
16.00 2.00 x 10-2
20.00 2.5 x 10-2
25.00 3.12 x 10-2
31.50 3.94 x 10-2
40.00 5 x 10-2
50.00 6.26 x 10-2
63.00 7.88 x 10-2
80.00 10 x 10-2
(b) The Developer's contract with the construction contractor must stipulate the following measures and work practices be adhered to:
(i) upon notification by Seven that the use of vibratory rollers, percussion equipment or other heavy machinery has caused structural borne noise above recommended limits in Table 1, Section 9, Studio Buildings of AS 2107: 1987 - "Acoustics - Recommended Design Sound Levels and Reverberation Times for Building Interiors" the construction worker must cease the relevant work immediately. Work shall not recommence unless and until measures have been taken to ensure that structural borne noise will not exceed these levels.
(ii) All practical measures will be applied to minimise surface borne vibration and vibration that may be transmitted along geological fault lines or rock strata that may enhance vibration levels within the structure of the television studios.
S5 Notification of Construction Schedules
On an ongoing basis, the Developer will advise Channel Seven management of proposed construction schedules 4-6 weeks prior to those works commencing, so that potential interference to the operations of the Television Centre on the Seven Site can be assessed.
(a) The Developer must undertake, at its own cost, the monitoring of dust, noise and vibration in accordance with Conditions S2, S3 and S4.
(b) The Developer will publicise the relevant noise, vibration and air quality monitoring data on a website on a monthly basis and will provide to Seven a password which will facilitate access by Seven to that information. Where:
(ii) that breach gives rise to an increase in Seven's cleaning and maintenance costs,(i) a breach of the relevant criteria occurs (to be determined by reference to these Conditions; and
the Developer will pay Seven's reasonable costs of any increased cleaning and maintenance.
(a) No development must occur in the areas hatched and marked "X" on the plan attached as Annexure B which would make this area unsuitable for emergency landing, until:
(ii) the cessation of the use of Seven's helicopter over the Site, whichever is the earlier.(i) 5 years from the date of this consent to the Development Application, granted by the Land and Environment Court; or
In particular, the areas must be finished with grass or low shrubs only, for the relevant period stated above.
(b) The occupancy of the two terraces hatched and marked "Y" on the plan attached as Annexure B must be delayed until 30 June 2007.
(c) At Seven's request, the Developer will further delay the occupancy of these terraces until 30 June 2009. Seven will pay the Developer fair market rent for each terrace, in advance on a monthly basis, for the period beginning on the later of:
(i) 1 July 2007; or
(ii) the date on which an occupation certificate (or any other approval having the same effect) is issued for the relevant terrace.
Seven's request must be in writing and given on or before 31 May 2007. If the parties cannot agree as to what constitutes "fair market rent", the amount of rent is to be determined by a valuer appointed by the President of the Real Estate Institute.
Seven may terminate this arrangement at any time by giving the Developer one month's notice in writing.
(d) The proposed viewing platform, hatched and marked "Z" on the plan attached as Annexure B, is to be finished with grass or low shrubs only, with no street furniture, until:
(i) 5 years from the date of this consent to the Development Application, granted by the Land & Environment Court; or
(ii) the cessation of the use of Seven's helicopter over the Quarry Site, whichever is the earlier.
(e) Once the filling of the Site is complete, the finished treatment of the heritage precinct must be carried out in accordance with the plan attached as Annexure B unless otherwise required by any development consent issued by the Council or other consent authority.
(g) If the road widening of Mobbs Lane proposed under Development Application IY/01723/03 for the site is approved, the Developer must negotiate in good faith with Seven regarding the removal of the trees along the front of Mobbs Lane under Seven's helicopter flight path, and the proposed relocation of the power lines and power poles under Seven's flight path, with a view to finding a solution which is acceptable to both parties.(f) No Occupancy Certificate for any dwelling in the area hatched and marked "C" on the plan attached as Annexure C, can be issued unless and until an acoustic compliance test has been carried out by a suitably qualified person (independent of any acoustic person engaged by the Developer, its agents, or the landowner for either the design or supervision during construction), certifying that the noise levels in that dwelling comply with the levels set out in Table 3.3 of AS 2021:2000.
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