Taylor v. Pine Rivers Shire Council & Ors (No. 2)
[2006] QPEC 129
•14 November 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Taylor v Pine Rivers Shire Council & Ors (No. 2) [2006] QPEC 129
PARTIES:
DEANNE TAYLOR
Appellant
V
PINE RIVERS SHIRE COUNCIL
Respondent
And
JUDITH ANN BRADLEY
First Co-Respondent
And
PENELOPE MARSH
Second Co-Respondent
FILE NO/S:
BD 3002 of 2004
DIVISION:
Appellate
PROCEEDING:
Consideration of proposed conditions consequent upon successful applicant appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
14 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
24 October 2006
JUDGE:
Judge Robin, QC
ORDER:
Order as per (anticipated) draft
CATCHWORDS:
Appropriate noise levels considered –enlargement and relocation of shed held “minor change”.
COUNSEL:
Mr Taylor (spouse) for Appellant
Mr Skoien for Respondent Council
Ms Marsh in person
SOLICITORS:
Deacons for the Respondent
Reasons were published to the parties setting out the court’s conclusions in this applicant appeal on 30 June 2006. See [2006] QPEC 065. The circumstances were unusual in that the development application was made only because a particular interpretation had been placed on cl 66 of Pt 7 of the relevant planning scheme of the Council, which interpretation the court held erroneous. Cl 66 offered something of an indulgence to residents of premises, allowing use of them for heavy vehicle parking by themselves and blood relatives. The consequence was that the appellant was held entitled to use her land as proposed. While no approval of a material change of use for that use was strictly necessary (there were different considerations in respect of a new shed proposed to be constructed to accommodate the use: that aspect received no particular attention at the hearing), cl 66 (1)(b) refers to “compliance with such requirements as the Council may impose to protect the amenity of the area”, a non-exclusive list of potential requirements following.
The published reasons contemplated that it may be unnecessary for the court to make any formal order in the appeal, the parties being left to work things out by reference to cl 66. The reluctant applicant’s planner, Mr Buchanan, commended the application to Council as an opportunity for it to set formal development conditions. Unhappiness was felt by many (not all) in the area at the introduction of the impacts of parking of up to four “heavy vehicles”, each of which could be an assemblage of a truck and trailer each carrying earthmoving equipment maintained on the site and moving (especially in the early morning) between it and locations where the equipment was being used.
The impacts of concern in the appeal were about noise. While the appellant’s use could be seen as acceptable in current conditions (notwithstanding the annoyance to the western neighbour, who had sold out before the appeal and, to a lesser extent, to the second co-respondent, Ms Marsh), the future of the general locality, thanks to successful lobbying by local landowners, will be Residential A development. There will be much closer settlement and the appellant can probably expect an additional eight residences immediately across her western boundary, if subdivision ensues, accommodating people who may well complain of her activities. The new owner of that property, for reasons which may include efficiency of road layout, proposes a design which will elect to locate new residences closer to the boundary of the site rather than further away. The court is strongly of the view that this is a scenario in which, with alternatives available, choices are being or will be made to bring residents or for residents to come as close as possible to a potential noise nuisance from an existing use. The contemplated future residences may well be affected more seriously than the existing one.
What the Council has done, rather than leave matters as they are and possibly seeking to impose requirements under cl 66, is to take up the court’s invitation to propose for consideration by the appellant (and the court) “relevant and reasonable conditions to protect local amenity.” It would like matters resolved by way of a court order incorporating development conditions, which would necessarily allow the appeal.
The parties had another day in court on 24 October 2006 when Mr Taylor (representing his wife, the appellant) and Ms Marsh had the opportunity to consider draft conditions supplied by Mr Skoien. Parts of the draft were new, but other parts were clearly the result of prior exchanges between the protagonists.
At the hearing, some changes to accommodate concerns of the appellant were agreed on. It was made express that use of tanks could form part of arrangements for stormwater drainage. Authority to operate outside designated hours on business days and Saturdays is now a matter for the Council’s Manager Development Services, rather than the Council, lest there be thought by some to be implication that the full Council had to be involved. It has now indicated that materials and colours for any new shed may be the same those in an existing shed, as an alternative to the Manager’s possibly approving other materials and colours. The Council conceded the extension of Saturday hours by one hour to 5.00 pm.
Predictably, the contentious condition relates to amenity, mainly noise. I am disinclined to indulge the appellant by introducing any further extension or leeway in relation to operating hours. There is a troubling record of the application’s expanding over time, as noted in the published reasons. With regard to hours of operation, what has been sought until now has been allowed. In respect of early commencement, it goes beyond standards that are recognised officially, eg in the Environment Protection Regulation 1998. Consistently with that, and in the light of Mr Taylor’s assertion from the bar table that the Council itself, from time to time, engages services of the appellant’s vehicles and equipment, I would qualify the proscription of operations on Sundays and public holidays, by adding “except between 8.00 am and 6.30 pm, and then only with the prior written permission of the said Manager”.
I note the Council expressed preference for a time limit in respect of the development permit by reference to the appellant’s remaining both registered owner of and resident at the site. The published reasons show my inclination to impose an additional limit in terms of years, but I am respectful of the Council’s deliberately seeking what it has. I do not know whether the explanation lies in some agreement that has been reached.
The difficult question for the court concerns the “amenity” condition. Mr Skoien was prepared to confine what is proscribed to causing “nuisance” rather than “nuisance or annoyance” to local residents. While “nuisance” may be of uncertain import, there are established legal principles to which reference may be made and the possibility of objective criteria being applied. The same can’t be said of the concept of “annoyance”. The draft went on to set objective standards by deeming certain noise levels to cause nuisance. What are broadly the hours of darkness (before 6.00 am and after 6.00 pm) are treated separately from daylight hours (6.00 am to 6.00 pm). Similar approaches (in instances adopting different times) are taken in the Regulation. It ought to be noted that the authorised hours of operation on week days extend from 5.00 am to 7.00 pm.
The noise limits propounded by the Council have been derived from AS2107 – 2000. In respect of continuous noise it recommends a maximum design Leq sound level for bedrooms at houses and apartments near minor roads as 30dB(A) and 35dB(A) respectively (par 37 of Mr Kamst’s report). Those limits are said to correlate with WHO recommendations if “negative effects on sleep are to be avoided”. As for maximum noise levels Lmax, the WHO suggest that “sleep and disturbance effects have been observed for maximum noise levels of 45dB(A) or less”. Mr Kamst’s report referred to other research materials suggesting that sleep awakening can occur at maximum noise levels of 55dB(A). The Council contended for Leq 35dB(A) and Lm max 45dB(A) internal noise limits for all bedrooms.
The point of such a provision is to establish a benchmark against which measurements taken at some future time, should there be trouble, are taken. No new evidence was presented on 24 October 2006. All that is available is the evidence from the hearing. The published reasons indicate my view that Mr Kamst had made insufficient allowance for habituation, that his approach was essentially theoretical. The appellant’s evidence at trial was that of Mr Gorrie, a former Council officer, who found the noise caused by the appellant’s heavy vehicles acceptable in the sense that he thought a noise abatement notice could not be defended. He was a generalist, compared with Mr Kamst, although possessed of some training and enjoying a good deal of experience at local government level in acoustic matters. In the circumstances, I wish to take some care not to impose standards which will inevitably be breached by the appellant. The circumstances include the absence of noise controls over the time that the appellant’s operations have been lawfully (according to the court) conducted on the site. Mr Taylor had the assistance in court of Mr Buchanan, but they were quite unable to assess the likelihood of the standards propounded by Mr Skoien being achieved. Mr Taylor said there were things that could be done to reduce noise levels, such as fitting of better mufflers and moving vehicles off the site while they idled, ie, relying on the momentum of the engine.
The suggestion was made, which I think is a good one, that the Regulation be turned to as a source of standards for noise levels. Nothing there applies to trucks. However, in respect of continuous noise, such as idling, an analogy might be drawn with s 6Z:
“Airconditioning equipment
An occupier of premises at or for which there is airconditioning equipment must not use or allow the use of the equipment –
(a) from 7.00 am to 10.00 pm on any day if it makes noise or causes noise to be made of more than 50dB(A); or
(b) before 7.00 am or after 10.00 pm on any day if it makes noise or causes noise to be made of more than the higher of the following –
(i) 40dB(A);
(ii) 5dB(A) above the background noise level.
Maximum penalty – 20 penalty units.”
Section 6ZA applies similar standards to refrigeration equipment including refrigeration on or in a vehicle or trailer. It seems to me reasonable to adopt the standard of Leq 40dB(A) and the standard of Lmax 50dB(A). As to the latter, that level is acceptable only until 10.00 pm and then the 6Z or 6ZA, in the early morning. Section 6ZC, for open-air events, allows noise up to 70dB(a) from 7.00 am to 10.00 pm and from 10.00 pm to midnight up to the lesser of (i)50dB(A); and (ii)10dB(A) above the background noise level. Under Section 6B, the “absolute” levels for indoor venues are somewhat lower.
Just as the court does not wish to set a standard which will inevitably place the appellant in breach if she continues operations in the established way, it does not wish to set a standard such that the actions of others (who have alternatives) will cause the appellant to be in breach. Those “others” are going to be well placed to organise matters so as to mitigate potential noise nuisance. For that reason, the standards now identified by the court are there for the protection of existing residents of the locality, less stringent standards being imposed on the appellant in respect of those who may “come to the nuisance” to build or live.
The Regulation in various places adopts limits of 5dB(A) and 10dB(A) above the background noise level. The lower limit is made applicable at “night time”: see 6Y, 6Z and 6ZA. Even after 10.00pm, 6ZB and 6ZC will accept the larger exceedence. In my opinion, that one ought to be adopted, rather than the lower one, as suggested in Mr Skoien’s draft. On that basis, the special condition regarding amenity would be as follows:
“The use permitted by this approval shall be conducted to ensure that noise, fumes and dust emitted from the Site does not cause nuisance to residents (not on the Site).
In relation to nuisance caused by noise, any noise exceeding the following limits shall be deemed to cause such nuisance:
(a) Before 6.00 am and after 6.00 pm internal noise limits for any presently existing bedroom not on the Site shall not exceed maximums of Leq 40dB(A) and Lmax 50dB(A); and for other such bedrooms shall not exceed maximums of Leq 45dB(A) and Lmax 55dB(A).
(b) Between 6.00 am and 6.00 pm external noise limits at any noise sensitive place (as defined by the Environmental Protection Act 1994) shall not exceed a maximum Leq of background plus 10 dB(A).
There is a presumption that internal noise levels are to be calculated conformably with paras 67 – 69 of the Report of ASIC Consulting Engineers dated 28 April 2006.[1]”
[1] The internal noise levels were obtained from the external noise levels by assuming that the bedroom windows are slightly open which allows for a 10dB(A) reduction from outside to inside the bedroom. Higher reductions would be obtained when the windows are closed (typically 20dB(A)), while lower reductions would be obtained if the windows are fully open (typically 5dB(A)).
As was indicated to the parties at the hearing, the above is a proposal, at this stage, about which the parties are invited to make submissions with a view to improving it from the point of view of its likely application in practice.
To allay another of Mr Taylor’s expressed concerns, it can be confirmed that the requirement of the condition for planting of screening vegetation along the boundary requires within the first three months only planting and does not require that the vegetation achieve the “minimum height of 1.8m above ground level” within that short period.
Ms Marsh was permitted to tender, as Exhibit 15, a schedule prepared by her of
observations of truck movements observed by her associated with the site from 1 July 2006 to 18 July 2006, said to be the month after the court’s ruling. There
might be some mystery about a truck the document says woke her up at 5.18 am the day before (“very noisy… it was the equipment on the back of the trailer banging around”). There was an observation of a truck leaving at 4.55 am on Saturday 21 October. She is a busy, professional woman who works in the city, who would not usually be at her home to make the other observations reported. What she has noted are departures from the professed mode of operation, of trucks leaving in the early morning and returning in the late afternoon. She has noted a considerable number of truck movements at other times. It would be concerning if the court or the Council should have been misled about the pattern of vehicle movements. On the other hand, the issue in the appeal was the implications of noise in the early morning. Noise was not seen as an issue at times when people could be expected to be awake.
While I am disposed to accept Exhibit 15, there was no evidence about it. Mr Taylor, after lunch, made some contentions of his own from the bar table explaining late departures of vehicles (up to 9.00 pm) in terms of drivers removing them then to facilitate getting an early start on some job in the morning. The benefit to the neighbourhood would be in being spared the sound of a movement off the site in the morning. Other unusual movements were explained by reference to the urgent requirement to replace “pancakes” following a government safety inspection – generating debate with Ms Marsh about whether that work came within the definition of “maintenance” that might be carried out on the site. Mr Taylor is the victor here. As to 21 October, he suggested someone’s watch might be wrong. He denied the noisy vehicle on 29 June could have been his, asserting that his equipment is always tightly secured.
Matters of this kind show the sensitivities at play in this story. There is at least the potential of excessive use of the site, as the relevant business has more than four heavy vehicles. I have been considering imposing a condition that a log be kept available for inspection by the Council recording vehicle movements on and off of the site and the times of them. I invite the appellant to indicate whether that might be unduly burdensome. Such a condition, if complied with, may well turn out to be a useful protection for the appellant. For all I know, such records may already be kept or easily compiled from logs kept for particular vehicles. It is possible, if a pattern emerged of more than occasional movements during the day (for medical appointments or emergencies, say) other concerns requiring to be addressed, such as road safety ones, would come to light.
A final matter is the relocation of a proposed new shed and its being enlarged by 19m2 (from 107m2 to 126m2). The proposed shed became “impact assessable” only because of its association with the new use in the material change of use applied for. The court may allow the application to be changed only in the case of a “minor change”. It is useful to know that the change propounded by the appellant is acceptable to the Council, which has incorporated it as part of the draft conditions package presented. The test for the court to apply is found in s 4.1.52(2)(a) of the Integrated Planning Act 1997 and the definition of “minor change” in schedule 10, paragraph (c) of which applies.
No argument was presented that any properly made submission over and above the many already received by Council might have been attracted had the changed arrangement been applied for in the first place and publicly notified. We are concerned with a large site and a largish “back yard shed”. The additional area seems inconsequential in the circumstances, especially when it is being relocated from the western boundary (adjoining the existing shed) to the middle of the yard. It will be closer to the eastern neighbours, who supported the application, but have the balancing effect of some screening of heavy vehicles and/or movements of them. To that extent, a “screen” may be removed from the boundary, which will be replaced by the screening to the parking area required by proposed “Special Condition 56 Screen Vegetation”. As I understand Mr Taylor, the heavy vehicle parking area, whose location had all along been somewhat imprecise, is now, with the new shed going elsewhere, to be placed at the end of a stub road in the subdivision expected on the western neighbouring property rather than immediately across the fence from a future residence. The clear impression given is that impacts will be reduced, with no significant benefit lost, which usually renders it easy for the court to identify change as “minor”. That is the court’s determination here.
The appeal should be allowed, and the application for a material change of use approved, on conditions set out in the document provided by Mr Skoien, headed “Appendix A”, with the change noted in [14] above, unless the parties show that some further condition is appropriate.
The predicted internal noise levels based on the bedroom windows being slightly opened and a 10dB(A) noise level reduction being applicable from outside to inside the bedroom. In the Brisbane area this would be a common occurrence due to the warm nights.
The nearest facades of future residences are taken to be 10m from the nearest boundary with the subject land.
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