Shelly Bear Pty Ltd v Canterbury City Council

[2004] NSWLEC 45

Land and Environment Court

of New South Wales

CITATION:	Shelly Bear Pty Ltd v Canterbury City Council [2004] NSWLEC 45
PARTIES:	APPLICANT Shelly Bear Pty Ltd RESPONDENT Canterbury City Council
FILE NUMBER(S):	(1)0121 of 2002
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Conversion of a house - day care centre - whether or not tonal noise - created by children at play - should be included in the assessment of acoustic impacts on neighbours
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	23/06/2003, 24/06/2003 and 19/01/2004
EX TEMPORE JUDGMENT DATE :	01/21/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Ball, town planner RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

(1)0121 of 2002 Hoffman C 21 January 2004 Shelly Bear Pty Ltd
Applicant
v Canterbury City Council
Respondent Judgment


1 . This was a Class 1 appeal No. 0121 of 2002 between Shelly Bear Proprietary Limited and Canterbury Council in regard to the conversion of a house and yards at No. 2 Balmoral Street, Croydon Park, for a child day care centre.

2 . In the original development application it was to operate in conjunction with an existing centre at No. 3 Melrose Street. The two properties adjoin via their back boundaries, the latter had operated since 1995. During the hearing the applicant sought and was allowed to have No. 2 Balmoral Street operate independently as part of the application. The number of car spaces on the site was increased from two to four. This was done by providing stack parking with two staff spaces side by side in the front set back with noses to the house and two pick up and drop off spaces behind them, just inside the front boundary.

3 . The land was orientated generally east-west and on the north side were apartments and commercial premises, which fronted Georges River Road, an arterial thoroughfare. The main entry walkway to the house and the proposed day care centre, was beside this northern boundary. It and the carparking spaces occupied the northern half of the front yard. The southern half of the front yard was to be landscaped. Adjoining the site on the south side was No. 4 Balmoral Street. It was a detached house with its main entry path and driveway and north facing windows orientated towards the proposal.

4 . On the subject site on the southern boundary was to be a pathway just inside the setback to give external access to the crib rooms and the back yard. There was a slight cross fall to the site down to the south. This pathway was to be elevated to give easy access for persons carrying babes in arms, to and from the crib rooms. The elevated path would enable persons on it to see directly over the fence into No. 4 and its living room windows, entry and pool areas.

5 . During the hearing the applicant sought to include screens along the fence line to prevent this overlooking and to limit the use of the southern side pathway to emergency access only. Also because of the potential noise disturbances from the crib rooms and play rooms during the day, the applicant also sought to put heavy laminated glass in the south side windows and to air condition the building, so that all the south side windows could be kept shut whilst the day care centre was operating.

6 . Evidence showed the children’s outside activities would also have the potential for noise disturbance to neighbours and during the hearing the applicant sought to control outdoor activities so that 0-2 year olds were outside at different times to 2-3 year olds, and there would be no organised singing outside the building.

7 . Play equipment was also to be limited to a maximum 300 mm high above ground level to ensure children do not get high enough to project voices directly over the fence.

8 . Many of these precautions arose from evidence about the experiences of neighbours living next door to, and near the existing Melrose Street Daycare Centre, and recommendations of the applicant’s acoustic expert.

9 . The report of the respondent’s acoustic expert also went into the noise impacts of tonal sounds which could be the most disturbing noises for neighbours. A layman’s description of the respondent’s tonal noises would be as follows: Children at play in groups can produce an almost continuous amount of chatter when heard from a neighbouring property. But the chatter is often punctuated by shrill screams of delight or displeasure or crying or yelling. These punctuations are typical noises that in technical acoustic terms are described as a noise containing a prominent frequency and characterised by a definite pitch. Other tonal noises could be a child beating drum or a piece of play equipment that creates noise when being used or misused.

10 . The applicant’s acoustic expert disputed that playground noises could be described as tonal noises under the relevant Australian Standard 1055 . There was disagreement between the acoustic experts on how to define tonal noises. They could not agree during the hearing, and in the end the Court directed and the parties agreed, to appoint a third expert suitable to both who would determine a methodology to measure playground noise and to determine if it is tonal or not. This necessitated an adjournment, and the Court observed at the time, that in any case the drawings were inadequate to be subject of any consent. At least 11 deficiencies in the drawings were noted in addition to the amendments sought by the applicant.

11 . A requirement for updated and clarified drawings was included as directions to the parties. Also the owner of No. 4 Balmoral Street as one component of his objections had sought clarification of what economic disadvantage he might suffer as a result of any approval of a day care centre beside him. Due to his limited resources to establish expert evidence on such matters, the parties were directed to agree on a method by which the Court should evaluate that part of his objection.

12 . The parties returned to the Court on 19 January 2004, after about a six month adjournment having completed only one of the tasks namely, having obtained the opinion of the third acoustic expert. The parties sought to have the Court determine as a threshold matter, the issue of tonal noise:

A. whether it should be considered and
B. if so, whether it had determinative weight, and what that decision should be.

13 . This would prevent needless expense on the other matters of the decision, if the decision was not in favour of the applicant.

14 . Mr Noland the third acoustic expert had provided a method by which to assess tonal noise. The applicant and the respondent’s acoustic experts Mr Atkins and Mr Gauld respectively, were still significantly apart on that matter. They had not been able to agree on a comparable situation to use as an acoustic test bed for Mr Noland’s methodology. Mr Atkins in the end had not done a test, and Mr Gauld had set up a test at a day care centre playground at Airds, a locality in the west of Sydney. He found that tonal noises did occur in that situation for 21% of the total time of measuring children at play. He reduced this to 16% of the total time as might be experienced at the subject site using accepted attenuation calculations for the fence proposed between the site and No. 4, Balmoral Street. The playground at Airds held about 20 children of the ages 0 - 3. The subject proposal is for ten 0 - 2 year olds and five children over two years, probably between the ages of two and three.

15 . In the end the allowance to reduce target noise levels in order to minimise tonal noise disturbance was 2.9 decibels using Mr Noland’s methodology. Mr Gauld wanted to round it off to five decibels because that was what his consultancy normally did. But Mr Atkins and Mr Noland said that tonal noise factors were never applied to schools and day care centres in their experience, because to do so would close down most of the day care centres and schools in the State.

16 . Mr Noland had assisted in writing Australian Standard 1055 , the standard used for establishing acceptable acoustic noise, levels for various users. He said in reading the standard for industrial noise, it was the only one that applied factors for tonal noise and that was when they occurred for a “significant” percentage of the time that noise generation occurred. He said “significant” was interpreted as 50% or more of the time of recording noise levels. He regarded 21% of the time, as measured by Mr Gauld as “not significant” and therefore inappropriate to apply.

17 . There was no complaint about the way Mr Gauld had applied the Nolan methodology and Mr Nolan did not dispute the 21%, or the 16% after allowance for attenuation due to the fence. He said prior to this actual test he would have made an educated estimate of 10%.

18 . The Court in considering the evidence has concluded that tonal noise should not be included in the assessment of acoustic impacts of this proposal because at most it occupies up to 16% of the total time children are at play. The evidence is, in order to merit inclusion of tonal noise, it would have to occupy 50% or more of the total time. In addition it is important to recall the applicant’s intention to separate the 0 - 2 year olds and the 2 - 3 year olds in their playtime, and it was common ground that 0 - 2 year olds did not create significant noise.

19 . The applicant has submitted that the target noise levels of the proposal, under Australian Standard 1055 in the event of tonal noise not being included, could be met. But the respondent still reserved its position on that. There are still the other directions to be dealt with, and a further adjournment is required to enable the parties to attend to them.

20 . This hearing is therefore further adjourned to the Registrar’s callover on 18 February 2004.

___________
K G Hoffman
Commissioner of the Court
rjs