Penrice Soda P/L v Vittorio Di Blase And Penrice Soda P/L v Ross And Evonne Pritchard (Number Two) - [2009] SAWC 17

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
PENRICE SODA P/L v VITTORIO DI BLASE AND PENRICE SODA P/L v ROSS AND EVONNE PRITCHARD (NUMBER TWO)
[2009] SAWC 17
Judgment of Senior Warden Cannon
20 December 2006
MINING LAW
Exempt Land: Fixing conditions and compensation

PENRICE SODA P/L v VITTORIO DI BLASE AND PENRICE SODA P/L v ROSS AND EVONNE PRITCHARD (NUMBER TWO)
[2009] SAWC 17

I refer to my preliminary ruling of the 25th of October 2006. Since that ruling I have received additional evidence.
I am satisfied that there has been, and will be, no reduction of television reception for the landowners in the applications before me as a result of the overburden. This is because they receive their signal from the Angaston UHF repeater transmitter primarily and also can receive a poor signal from the aerials at Mount Lofty. Both those aerial locations are not affected by the quarry overburden. I rely on exhibit P8 for this conclusion, which is not contested by the landowners before me.
In accordance with the law I have previously outlined, I first fix conditions to minimise the effect of the mining operation on the dwelling houses.
I order that the exemptions of land within 400 metres of Mr Di Biase’s dwelling house and Mr and Mrs Pritchard’s dwelling house are removed upon the conditions set out below:
1.     The mining operations permitted within the exempt land are limited to the dumping of overburden and rehabilitation.
2.     There will be no mining operations on the exempt land outside the footprint of the existing overburden to the effect that there is to be no dumping of overburden nor other mining operations on the land that was previously owned by Mr and Mrs Fettner, except where that already has occurred.
3.     The increase in height of the overburden will be limited to one additional 12 metre high bench plus an eight metre high dome, a total of a 20 metre increase in height.
4.     The raising of overburden to the highest level on the parts of the overburden nearest to the landowners’ dwelling houses will be completed within two years of the first of January 2007. The intent of this condition is to ensure that a mound is raised between the dwelling houses and future dumping to minimise the noise.
5.     The dumping of overburden anywhere within the exempt land will cease by the 31st of December 2013.
6.     The dumping and work upon the outer part of and top of the overburden nearest to the dwelling houses is only permitted between the hours of 8 a.m. until 4 p.m. on any week day that is not a public holiday.
7.     Other dumping of overburden is only permitted between the hours of 7 a.m. and 5.30 p.m. on any weekday that is not a public holiday.
8.     All mining equipment that is operated on the exempt land with a reversing alarm will be fitted with a BBS-Tek back alarm- 87 dB(A).
COMPENSATION
These conditions will minimise the imposition upon the landowners but they will not remove it. Some compensation is also necessary. I fix compensation on two separate bases. The first is for the past and future imposition that the landowners have and will experience from the dumping of overburden on the exempt land. This is primarily from noise, but there also is some dust. I calculated that the dumping of overburden involved approximately 96 trucks per day. This has occurred historically for 10 years on each working day. It will continue for another two years to the outside of the overburden mound. I note that there is a substantial difference between the noise reaching the landowners from a truck working on the outside or top of the mound compared to a truck working inside the mound. I refer to Exhibit P7, the evidence from the Christopher Turnbull, whom I accept as an expert for this purpose. The average noise experienced at the Di Biase dwelling house from a truck working behind the mound is 35-37 dB(A), as compared to a truck working at A or B on the top and edge of the mound where they experience 48-49 dB(A). Only a relatively small part of the overburden is within 400 m of Mr and Mrs Pritchard’s land. At their dwelling house the noise from dumping at point A was measured at 46-48 dB(A).
The greatest complaint has been about the reversing back alarm. The measured noise from the reversing back alarm was measured at the Di Biase property at 42-43 dB(A). However, in assessing the impact of a particular noise a penalty of five dB(A) can be added if the sound varies in modulation plus an additional penalty of five dB(A) if the sound is of an identical tone. This would imply a penalty of 10 dB(A) for the reversing back alarm which would raise it to 52-53 dB(A). However Mr Turnbull would not apply that penalty, because the back alarm was not the dominant generated sound. The dominant sound was the engine noise of the trucks and the background ambient noise. The penalty only applies to the dominant generated sound. This of course conflicts with the consistent complaint of the landowners that the worst noise subjectively was in fact the reversing back alarm. I accept that evidence from the landowners. The conditions I have imposed will largely remove the imposition of the reversing back alarm. It will not remove the historic imposition of the alarm.
Mr Turnbull asserts that on existing Environment Protection Authority (EPA) policy he would classify this area as urban residential with some industry. This puts the maximum permissible noise level during the day at 58 dB(A). He would apply a penalty of five dB(A) due to the variable volume of noise from the a truck engines which are the dominant sound. This would permit a maximum permissible noise level of 53 dB(A). World Health Organisation guidelines for community noise provide: “to protect the majority of people from being moderately annoyed during the daytime, the outdoor sound pressure level should not exceed 50 dBL_Aeq”. On the bases of these criteria, the measured noise is just below the maximum permissible so that the majority of people would not be moderately annoyed by the noise. I note that if the environment were regarded as rural or predominantly rural the daytime maximum permissible noise level would be 47 dB(A). If the five dB(A) penalty were provided to that it would be 42 dB(A). I've put to Mr Turnbull that this might be regarded as the appropriate classification for this area. He maintains that because the relevant area is the source of the sound, not the place where it is heard, that his classification is the correct one. He asserts that the classification system is being amended at the moment and when the amended classification is published it will be to the same effect as his selection of urban residential with some industry. To give this difference a meaning I note that a reduction of sound level from 50 dB(A) to 40 dB(A) subjectively would halve the noise level. Clearly the selection of classification has a significant impact on whether any sound is regarded as permissible. My conclusion from this evidence is that the sound received at the landowners’ dwelling houses was within the maximum permissible sound under EPA guidelines, but very close to the maximum permitted.
The EPA guidelines are useful but not determinative of whether compensation is payable. They exist to regulate the permitted noise in this instance in an urban residential area with some industry. The landowners’ dwelling houses are in rural setting, but the setting is compromised by their close proximity to the long existing quarry. The Mining Act 1971 provides freehold owners of dwellings with special protection beyond the criteria of the EPA. The evidence in relation to Mr Di Biase if the dumping had been kept outside the 400 metres is that the measured noise he would have received at the dwelling house would have been six dB(A) less than he in fact experienced. A difference in three dB(A) is just discernible and a difference in five dB(A) is clearly discernible. He and his family have experienced a clearly discernible imposition by the mining activity on the exempt land. Similar considerations lead to the conclusion that an additional, but lesser, imposition has been caused to Mr and Mrs Pritchard. Clearly the dumping of overburden within 400 metres of their dwelling houses has been a significant increase in the imposition upon them and has interfered with their enjoyment of their freehold interest. This is compensable.
Mr Di Biase and his family have experienced 96 trucks every working day for 10 years. However, only about 10% of those are on the top or edge of the face. The imposition of those dumping behind the face is very low. Therefore the imposition of trucks that significantly imposed upon their enjoyment has been of the order of nine or ten trucks dumping every working day. This will continue on the conditions I have set for another two years. The truck fleet is being replaced next year with 90 tonne rather than the existing 60 tonne trucks. That will reduce the number of trucks by one third for the next two years. The number of trucks so far has been ten years by 250 working days by ten per day equals 25,000 truckloads. For the next two years it will be two thirds of two years by 250 working days by ten per day equals a further 3,300 trucks. This is a total of 28,300 truckloads. I take into account the reverse back alarm and that in future that will be diminished. I take into account the noise of the trucks and the falling stone. I take into account the close proximity to the working quarry and the relatively high ambient noise. I would assess compensation for noise of trucks dumping on the face or top at $1 per truck, that is for Di Biase, $28,300. I allow additional compensation for Di Biase for the individually minor noise of trucks behind the mound. That is another 256,500 truck loads for the twelve years. For that and dust and noise of grading and shaping the mound I allow another $12,000. In all for impositions not removed by conditions I allow for Di Biase $40,300.
For Mr and Mrs Pritchard the intrusion on their exempt land is much less. Whereas the closest part of the top and face is approximately 200 metres from the Di Biase’s dwelling house it is nearly 400 metres from Mr and Mrs Pritchard’s dwelling house. The evidence from Mr Turnbull is that this should result in 6dB(A) less noise intrusion. I accept this evidence despite the actual observations showing a lesser differential. This puts the imposition below any view of the EPA guidelines. For that reason I assess compensation for all the imposition on Mr and Mrs Pritchard at half the amount for Mr Di Biase, namely $20,150.
The other area of compensation is the diminution of the capital value of the properties as a result of the proximity of the overburden. I note the opinion of Mr Brooke. In Exhibit P6, he assesses compensation for diminution of property value for Di Biase at $7,300 and in Exhibit P5 for Mr and Mrs Pritchard at $4,250. I note he also expressed an opinion in relation to disturbance, cleaning and general nuisance. He asserted expertise on that topic, but his evidence did not support that. I do not accept his evidence as to the value of those matters.
I also have the evidence of Andrea Carolan. She assessed the loss of value for Mr De Biase at $25,000 (Exhibit P3). She assessed the loss of value for Mr Mrs Pritchard at $10,000 (Exhibit P4). In addition she assessed disturbance at $2,000. She was unable to give evidence. Again there is no explanation for the basis upon which disturbance was assessed. I do not accept her evidence as to the value of disturbance.
As for the capital value I shall take the mean of the valuations. For Di Biase, that is the mid point between $7,300 and $25,000 namely $16,150. In total, therefore, for Di Biase, I assess the compensation at $40,300 plus $16,150, in total $56,450.
For Mr and Mrs Pritchard, that is the mid-point between $4,250 and $10,000 namely $7,125. In total therefore for Mr and Mrs Pritchard I assess compensation at $20,150 plus $7,125 in total $27,275. I order that this is payable by the end of January 2007 by which time the appeal period will have expired.
I give liberty to call the matter on for consequential orders.