Shearers Road Freight Pty Limited v Canterbury City Council

[2006] NSWLEC 290

Land and Environment Court

of New South Wales

CITATION:

Shearers Road Freight Pty Limited v Canterbury City Council [2006] NSWLEC 290

PARTIES:

APPLICANT
Shearers Road Freight Pty Limited

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

11584 of 2005 and 10057 of 2006

CORAM:

Brown C

KEY ISSUES:

Appeal :- noise generated by the operation of a mik warehouse and distribution centre - s 264 Noise Control Notice - s 96 Direction to take prentative action

LEGISLATION CITED:

Protection of the Environment Operations Act 1997

DATES OF HEARING:

26/04/2006

 
DATE OF JUDGMENT: 

04/27/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Hyam, barrister
SOLICITORS
Lincoln Smith & Co

RESPONDENT
Mr S Griffiths, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 April 2006

11584 of 2005 Shearers Road Freight Pty Limited v
10057 of 2006 Canterbury City Council

JUDGMENT

1 COMMISSIONER: The proceedings involve two separate but related appeals in relation to the use of the premises at 141-143 Moorefields Road, Roselands for a milk warehousing and distribution centre.

The appeals

2 Appeal No. 11584 of 2005 relates to an appeal against a Noise Control Notice issued under s 264 of the Protection of Environment Operations Act 1997 (PEO Act). Appeal No. 10057 of 2006 relates to a Direction to take preventative action under s 96 of the PEO Act.

3 The appeals relate to noise generated by the operation of the facility and the potential impact on adjoining residential properties and specifically the noise generated by the bank of compressors adjoining the western boundary of the site and the noise generated by trucks entering and leaving the site in the early hours of the morning.

Background

4 By way of background, the site operates under existing use rights based on a development consent granted by the council in 1972. The consent does not contain any restrictions on operating hours. The site was re-zoned in 1985 to a Residential 2(b) zone. This zoning prohibits light industrial uses, commercial purposes and warehousing. While the council originally disputed the reliance on the existing use rights, evidence provided by the applicant satisfied the council that the applicant is operating within the site’s existing use rights.

5 The applicant has operated from the site since April 2004. Prior to this time the site has been used for similar operations, i.e., the warehousing and distribution of refrigerated products by a number of different companies.

6 The Court was also advised that the site is subject to a development application for a mixed residential development. The application was lodged with the council in September 2004 but remains undetermined at the time of the hearing.

The evidence

7 Mr Stephen Cooper, an acoustical engineer and local residents, Mr S Sentas of 170 Moorefields Road, Mr G Richards of 6/157 Moorefields Road and Ms B Cuneen of 7/157 Moorefields Road provided evidence for the council. Mr Alan Shearer, the managing director of the applicant company and Mr Dominic Iacullo, the owner of the property, provided evidence for the applicant.

8 Appeal No. 11584 of 2005 relates to an appeal against a noise control notice issued under s 264 of the PEO Act. The notice in part states:

In its capacity as an appropriate regulatory authority and pursuant to the provisions of s 264 of the Protection of Environment Operations Act 1997 the Council of the City of Canterbury prohibits you from causing, permitting or allowing the compressor units located on the above premises to be operated in such a manner as to cause the emission from the premises during the times and/or days shown in Column 1 of noise above the level specified in Column 2, when measured at the points specified below.

9 Column 1 has two lines: 7.00 am to 8.00 pm on any day and 8.00 pm to 7.00 am on any night. Column 2 has two levels: 47 dba and 42 dba relating to the lines in Column 1. The noise measuring point is identified as approximately 4 metres away from the affected adjoining premises located at 157 Moorefields Road, Roselands.

10 The applicant agreed that the Order should be made in the terms set out by the council although the council accepted that the commencement of operation of the notice should be stayed for a period of 28 days, rather than the 21 days specified in the notice. I accept the agreed position by the parties.

Appeal No. 10057 of 2006

11 Appeal No. 10057 of 2006 relates to a Direction to take preventative action under s 96 of the PEO Act. The Prevention Notice was issued to ensure that offensive noise, generated by the heavy vehicles entering and leaving the site and being loaded during the night time, is prevented in the future.

12 The Direction states:

( 1) Cease using or permitting the use of the premises at No. 141-143 Moorefields Road, Roselands for the purpose of receiving or despatching deliveries by articulated trucks and trucks having trailers between the hours of 6.00 pm and 7.00 am Mondays to Saturdays and between the hours of 6.00 pm on Saturday evenings and 8.00 m Sunday mornings.

(2) For all other receiving or despatching deliveries by trucks and vans, with a load capacity of one tonne or greater other than those specified above, cease using or permitting the use of the premises at No. 141-143 Moorefields Road, Roselands for the purpose of receiving or despatching deliveries between the hours of 10.00 pm and 7.00 am Mondays to Saturdays and between the hours of 10.00 pm on Saturday evenings and 8.00 am Sunday mornings .

13 Direction (1) was accepted by the applicant with the amendment that allowed vehicles to enter and leave the premises up to 9.00 pm, seven days per week. The council agreed to this amendment.

14 Direction (2) was in dispute. The applicant proposed an amended Direction (2) that did not restrict the hours of operation but sought to limit the noise generated by any truck or van to the noise levels recommended by Mr Cooper in his acoustical assessment. The applicant further proposed that this Direction be stayed for a period of 6 months. The applicant also proposed that a person be in attendance on site during the times that the pick-up of milk was undertaken, so as to control any potential noise impacts. The council maintained that Direction (2) was appropriate, however, it accepted that the Direction could be stayed for a period of 3 months.

15 In considering the different approaches to addressing the potential noise impacts from the trucks and vans referred to in Direction (2), I accept the approach of the council for a number of reasons. Importantly, I am not convinced that the applicant’s approach can be reasonably monitored and controlled. As I understand, the vehicles in question are fully independent of the applicant in that they only use the site to pick up their allocated supply of milk. I am unsure as to the means by which the applicant can control this part of the operation. No evidence was provided to the Court on how compliance could be monitored and/or achieved.

16 I accept Mr Griffith’s submission that monitoring of the noise levels would also be an unacceptable burden on the council. While I accept that a full-time employee may reduce the potential from some sources of noise, it will not impact on the noise associated with many parts of the operation that have caused problems during the past. These matters include the use of forklifts, reversing alarms on trucks and general noise associated with vehicles manoeuvring within the site.

17 There is clearly a fundamental inconsistency with the current operation of the site and the residential context in which it is situated. Notwithstanding Mr Hyam’s submission, I do not accept that the existing use rights give any entitlement to create unacceptable noise impacts. The evidence of the local residents taken on the site clearly indicates an incompatibility with the existing use and the reasonable enjoyment of their properties. I have no doubt that their concerns were genuine and the impacts are unreasonable.

18 I note that the lease of the property expired on 30 September 2005 and that the applicant is currently operating on a month to month lease. Mr Shearer indicated he has been looking for alternate premises for some time but because of the particular characteristics of his operation, finding a new site has been difficult.

19 I acknowledge that compliance with Direction (2) may impact on Mr Shearer’s operation, however the evidence indicates that the noise associated with the operation has been an ongoing problem for some time. I accept that the 3 month stay on the Direction is reasonable and provides an opportunity for Mr Shearer to re-locate if he is unable to comply with the Directions. In coming to this conclusion, I am mindful that attempts have already been made to locate to alternate premises, the existing lease has expired and, of considerable importance, the ongoing, unacceptable levels of noise experienced by local residents.

20 In relation to Appeal No. 11584 of 2005, the Orders by consent, are:

1. The appeal is upheld.

2. The Noise Control Notice issued by Canterbury City Council on 2 December 2005 is varied in accordance with the amended form of Notice attached and marked ‘A’.

21 In relation to Appeal No. 10057 of 2006, the Orders are:

1. The appeal is upheld.

2. The Prevention Notice issued by Canterbury City Council on 28 December 2005 is varied in accordance with the amended form of Notice attached and marked ‘A’

_______________________

G T Brown
Commissioner of the Court
ljr