Whale Waste Pty Ltd v Maroochy Shire Council
[2004] QPEC 35
•30 July 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Whale Waste Pty Ltd v. Maroochy Shire Council [2004] QPEC 035
PARTIES:
Whale Waste Pty Ltd (Appellant)
v.
Maroochy Shire Council (Respondant)
FILE NO/S:
47 / 03
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
30 July 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
12th and 13th July 2004
JUDGE:
K.S Dodds, DCJ
ORDER:
Appeal Allowed subject to conditions
CATCHWORDS:
ENVIRONMENT AND PLANNING – - Appeal against conditions of approval by the respondent for waste management works; Noise – Hours of operation; relevance of town planning scheme and amenity; whether review by the respondent on an annual basis of the appellant’s operations justified; whether noise restrictions should apply to the site.
Legislation Cited:
Environmental Protection (Interim Waste) Regulation1996;
Environmental Protection Act1994;
COUNSEL:
Mr S. Ure (Respondent)
Mr W. Everson (Appellant)
SOLICITORS:
Mr A. Davis, IPA Lawyers for the Appellant
Ms M Grey, Maroochy Shire Legal Services for the Respondent
This is an appeal against four of a number of conditions part of an approval by the respondent on 29 May, 2003 under the provisions of the Environmental Protection Act 1994 for the following activity: “The deposition of construction and demolition (C& D) waste on site for sorting including the temporary storing of non-inert C & D waste on site and the burying of inert C & D waste on site for rehabilitation purposes only” (the approval). Inert C & D waste was limited to bricks / pavers / ceramics, concrete (including embedded steel reinforcing rods) pulverised to a maximum 300mm nominal size and clean earthen fill.
The approval had currency for one year. It required the appellant “to reapply to Council to continue (the) activity on a yearly basis on the anniversary date of this approval”.
The approval resulted from a “reapplication” by the appellant which sought renewal of an earlier approval for similar activity dated 31 April 2002 which took effect on that date (the earlier approval). The earlier approval which also had a currency period of one year and its attached conditions was appealed to the court. The appeal was resolved by a consent order of the court made 13 March 2003, allowing the appeal on a number of conditions. One of the conditions provided that the appellant would be required to reapply to the respondent “to continue (the) activity on a yearly basis on the anniversary date ie, 30 April on each year”.
The site for the activity in the earlier approval and this approval has been used as a rock quarry. The use had been approved by the respondent in 1974. Prior to the appellant’s recent lawful extraction of quarry material which enlarged the quarried site, it had not been used as a quarry for about 7 years. At the time of the applications, it had an existing non-conforming land use approval for extractive industry.
The activities the subject of the approval (and the earlier approval) are “waste management works” within the meaning of that phrase in the Environmental Protection Act 1994; see section 368. Section 369 of the Act prohibits a person from performing waste management works in a local government’s area unless the works are performed –
“(i) by or for the local government; or
(ii) under an approval under S. 369 A from the local government to perform the work; or
(ii) under a development approval.
… …”
Regulation 16 (1) of the Environmental Protection (Interim Waste) Regulation 1996 prohibits a person depositing or disposing of construction or demolition waste other than at a place and in a manner as may be approved by the local government. Regulation 16 (2) empowers the local government to “impose relevant conditions on the approval that it considers to be necessary or desirable”.
S. 369 A of the Act which was inserted in 2001 and commenced on 3 December 2001 provides for a person to apply to a local government to perform waste management works in its area. S. 369 A(6) empowers the local government to “impose relevant conditions on the approval it considers are necessary or desirable”.
Conditions must therefore be relevant and considered necessary or desirable in the existing circumstances and in the light of the type of activity.
The conditions attached to the approval were different to some extent to those which ultimately attached to the earlier approval after resolution of the appeal to the court. Many were the subject of the present notice of appeal. Many of those have been resolved. Those remaining in issue at the hearing of the appeal were A1, A3, A5, and C2,
A1 - This approval takes effect from the date the approval was signed on the front page. The applicant will be required to reapply to Council to continue this activity on a yearly basis on the anniversary date of this approval. An application to continue this activity must be submitted by the applicant at least 30 days before the anniversary date of this approval.
A3 - Operational hours will be restricted to the following:
Monday to Friday 7:00am to 5:30 pm
Saturday 7:00am to 2:00pm
Sunday and Public Holidays Closed
A5 - This application has been approved on the basis of a single user / operator based activity for the Applicant. The maximum number of Whale Waste vehicles to utilise the site is limited to the current number of three skip vehicles. This approval is non-transferrable.
C2 - All noise from activities must not exceed the levels specified in Schedule D – Table 1 at any noise affected premises.
Schedule D – Table 1
| Noise Level db (A) measured as | Monday to Saturday |
| 7am to 6pm | |
| L A10, adj 10 mins | 45 |
| L A1, adj 10 mins | 50 |
An amended notice of appeal was sought to be filed at the hearing which more completely reflected the issues dealt with in the evidence. Counsel for the respondent withheld consent to its filing since he had not had an opportunity to consider it. I will deal with this later.
The evidence at the hearing consisted of town planning and acoustical evidence from both parties. The appellant called evidence from a person with qualifications in environmental engineering, and from Mr Whale, a principal of the appellant. The respondent called evidence from two residents living nearby, Mrs Greenberry and Mr Middleton.
The parties to the appeal were agreed that filling in of the site using the inert material approved was generally beneficial, for after completion and surface rehabilitation, it would convert an area which was something of an eyesore with a high vertical or near vertical batter on its northern side and to a lesser extent on its eastern and western sides to an area like the land form before quarrying commenced.
In considering what conditions are relevant to this sort of approval and the necessity or desirability of them, the respondent’s town planning instruments are I think a part of the existing circumstances, see the wide definition of “environment” in Section 8 of the Environmental Protection Act 1994.
The site is within Precinct 5, Precinct Class Rural Residential of Planning Area 22 Petrie / Paynters Creek Plains in the respondent’s town planning scheme, Maroochy Plan 2000. The scheme sets out the intent for this Precinct, that it “remain predominantly for rural residential purposes in ways that are sustainable in terms of the areas environmental values and physical capacities”, that it “provide for semi – rural living in a bushland setting.” Under the heading of “Preferred and Acceptable Uses” appears “Urban and intensive rural uses are not considered consistent with the intended and desired character of this precinct because of their potential for unacceptable impacts on bushland values and rural residential amenity”. Under the heading “Landscape and Built Form”, maintenance of rural amenity is to be provided for.
The site is at the southern edge of Precinct 5. It is part of the southern slope of a steep ridge generally running east west. In the vicinity of the site the southern side of the ridge falls in a southerly direction towards Paynters Creek Road. The southern side of the site fronts Paynters Creek Road. On the northern side of the site above the vertical cut is Upper Rosemount Road. Access to the site is from Paynters Creek Road.
The land across Paynters Creek Road to the south is in Precinct 4, Nambour East Canelands, Planning area 22. These lands are predominantly flat being large floodplains. To the immediate north of the site in Precinct 5 on or towards the ridge top are rural residential allotments. Six dwellings are in the vicinity of 100 metres of the nearest boundary of the site. Another three are within 200 metres.
The appeal is brought under the provisions of Subdivision 2, of Part 3 of Chapter 11 of the Environmental Protection Act 1994. Unlike the Integrated Planning Act 1997, the provisions of the Environmental Protection Act 1994 have nothing to say about who bears the burden of proof. Under the Integrated Planning Act Act, in an appeal by an applicant for a development application, the appellant must establish the appeal be upheld.
I intend to proceed on the basis that it is for the appellant to establish that the appeal be upheld. Although the appeal is by way of rehearing unaffected by the respondent’s decision (S. 536 (2) Environmental Protection Act 1994), it is the appellant who comes to the court asking that the conditions be altered.
Before dealing with the conditions which remained in dispute, I should make mention of Exhibit 12. Exhibit 12 consists of licences to carry out waste disposal / landfill activities issued under the Environmental Protection Act1994 to various local authorities, together with the conditions attaching thereto. The relevance, according to the Appellant was that none of the licences required renewal on an annual basis. The respondent submitted that they were of limited or no relevance to the specific circumstances of the activity the subject of the appeal. It also noted that the conditions limiting the emission of noise were the same as its acoustical evidence in the appeal.
I do not think that the fact that various local authorities have been licensed under the Environmental Protection Act 1994 to conduct their facilities at various localities absent a 12 month currency period has relevance to consideration of a condition in this case that the approval be renewed annually. It is sufficient to say that, for any comparison of the nature sought to be made, matters which are relevant must coincide. The only coincidence here is that of waste disposal. Beyond that matters at issue, the subject of the appeal, must be decided upon the considerations peculiar to this case.
Condition A1
Operations on the site under the earlier approval commenced in February 2003. The application seeking renewal leading to the approval was made in April 2003. The respondent issued its approval dated 29/5/03 and formally provided it to the appellant under cover of a letter dated 14 August 2003. The appellant appealed in September 2003. It has apparently been operating under this approval. A further application for renewal was made in April 2004.
It is apparent from the evidence there has existed some tension between residents in the vicinity of the site on Upper Rosemount Road and the appellant. It appears to be about noise, particularly in the early morning, and to a lesser extent the coming and going of trucks.
The appellant has argued that he cannot sensibly make business decisions involving expenditure when there is no certainty of continuity beyond twelve months.
It is worth noting that the earlier application proposed that for the ensuing twelve months two trucks would be used in the operation. A response from Covey and Associates on behalf of the appellant on 18 April 2002 to an information request postulated that the volume of C & D waste to be deposited at the site annually would be in the order of 10,000 cubic metres.
In the approval under appeal, approval was given to the use of three trucks (condition A5). Mr Whale in his evidence said the appellant had purchased a fourth truck in February 2003. In the appeal the appellant seeks approval for the use of four trucks.
I think residential amenity is a relevant consideration. The appellant has chosen to establish a commercial enterprise in this precinct which has potential to impact on this amenity by noise, dust, odour. I include odour simply because the sort of C & D waste delivered to the site not infrequently includes non-inert material which must be sorted and stored before transport to an approved destination.
I think it is relevant at this stage of the establishment and development of the appellant’s enterprise for the local government to retain the opportunity to review the performance of the appellant’s operation at the site on an annual basis. In terms of the burden of proof, I am not persuaded by the appellant that it is not.
Condition A3
The time in issue that occupied the evidence appeared to be the start time Monday to Saturday. The appellant contended that it was important the start time be 6:30 am.
The earlier approval (and the consent order approval) was for operational hours to be Monday to Saturday 6:30 am to 6:00pm, closed Sundays and public holidays. In response to complaints from residents on Upper Rosemount Road the approval reduced these hours.
So far as the evidence discloses, of most concern is the 6:30am to 7:00am time period, the high tonal reversing alarm on machinery / trucks, and the clanging noise of metal, assumed to be the loading of skips, and the rattling of chains.
There is evidence that residents have suggested to the appellant that trucks be reversed into their parking area at the end of a day so that there would be no need to reverse at the commencement of the next days work. The appellant was apparently unwilling to do this in the winter months. It appears from his Counsel’s remarks to me that he is now agreeable to this.
Mr Whale’s evidence was that it was important to his business that operational hours commence at 6:30am so trucks could attend building sites which are usually commencing at about that time. Whilst Mr Whale’s commercial interests are by no means the most important thing to consider, I am persuaded at this point that 6:30 am may be the start time of operational hours Monday to Saturday, on condition that there is no reversing or loading of vehicles. That means that in that time frame the only activity is to be the starting and driving of trucks already loaded to the extent they need to be, from the premises.
Counsel for the appellant informed me the appellant accepts that operational hours cease at 2:00pm on Saturday.
As to the end time of operational hours Monday to Friday, Mr King and Mr Carroll the acoustical experts both recommended 6:00pm as appropriate. On the basis of this evidence, I accept that 6:00pm is the appropriate end time for operational hours Monday to Friday.
Condition A5
The respondent was prepared to accept that the condition could be amended so that four trucks could be used at the site.
The evidence of Mr Whale was that it was not economical for the appellant to operate more than four trucks at the site. However he indicated that he would be prepared to allow other carriers to dump C & D waste at the site.
This condition, I think, operates in a limiting way, being a single user operator based activity limited to four trucks. The impact on amenity from the daily use of truck arrival, unloading and departure is limited to four trucks. As I have already noted the original application was proposed on the basis of two trucks and 10,000 cubic metres per annum for the 12 month currency period. It has increased to four trucks. There is no limit on the annual cubic meterage in the conditions.
As appears in the report from the respondent manager of Maroochy Waste Services dated 24 April 2002 regarding the original application, the respondent had been told by the applicant that 10,000 cubic metres of C & D waste could be deposited on site each year. The author of the report calculated that amount to approximate 30 cubic metres or three (or four) truckloads per day, and opined that there would be no significant impact from this sort of activity if those levels were maintained.
The appellant’s annual report dated 16 April 2003 to the respondent says that in the two months of operation to that date 293 cubic metres of inert C & D waste had been buried on site. The evidence of Mr Whale and the appellant’s annual report for the twelve months to 30 April 2004 was that for the twelve month period to 30 April 2004, approximately 2,800 cubic metres of C & D waste was buried on site. This is considerably less than the 10,000 cubic metres postulated in the original application and may reflect a less than anticipated increase in business or an undisclosed intention to make the site available to other carriers.
Although on one view of it, a desirable outcome may be the rehabilitation of the site sooner rather than later, when the amenity issues are weighed in the balance with other issues, I am not persuaded the condition so far as it relates to a single / user operator based activity for the application should be deleted. The maximum number of Whale Waste skip vehicles to utilise this site will be four.
I have considered the part of the condition that the approval is not transferable. I am not clear as to its purpose, although its effect is clear enough. It was not dealt with in the evidence, nor in any focused way in submissions although some submissions were made by the appellant about the respondent wishing to monopolise the market. It may be part and parcel of the approvals with a currency period of twelve months which have been assessed on the basis of this appellant, its proposal and its plant. In the final analysis, the appellant has not persuaded me I should delete it.
Condition C2 (and C3)
There was opposing evidence from the two expert witnesses , Mr Carroll for the appellant and Mr King for the respondent. Mr Carroll based his view on the World Health Organisation recommended criterion for sleep disturbance. He seemed to disagree with Mr King’s view that in Queensland it was not appropriate to adopt 15 decibels for attenuation of outside noise through a window. He seemed to accept that 5 decibels was used in Queensland for this although he thought it very conservative.
Mr King based his view on the current Maroochy Plan 2000 noise criteria and the current standards commonly applied by Queensland’s Environmental Protection Act with respect to industrial operations and noise. He had regard to the fact that to the present time there has been little to no suitably detailed noise measurements undertaken over an extended period of 5 to 7 days for an assessment of the ambient noise environment. In the absence of that he considered it inappropriate to set actual noise limits in terms of a value in dB (A).
I considered Mr King’s approach appropriate in the circumstances. I am not persuaded the condition put forward by Mr Carroll is appropriate.
The appeal is allowed to the following extent:
· Conditions attached to the approval under appeal are altered so that;
- condition A3 will be -
operational hours will be restricted to the following:
Monday to Friday – 6:30am to 6:00pm
Saturday 6:30am to 2:00pm
Sunday and public holidays, closed
- Condition A5 will be -
This application has been approved on the basis of a single user / operator based activity for the applicant. The maximum number of Whale Waste vehicles to utilise the site is limited to four skip vehicles. This approval is non transferable
- Condition C2 will be
In the event of a complaint about noise that constitutes annoyance being made to the administering authority, that the administering authority considers is not frivolous or vexatious, then the emission of noise from the licensed place must not result in greater than is specified in Table 1 of the following Noise Schedule.
Table 1 Noise Schedule
| PERIOD | 6:30AM – 6:00PMMonday to Saturday |
| LA10, adj, 10 min | LA90 + 5 |
| LA1, adj 10 min | LA90 +10 |
Some alteration to condition C3 will be necessary to include a measurement of the long term background noise level, using the procedure provided for in clause 33 of the Environment Protection (Noise) Policy 1997. Parties may formulate appropriate terminology for this condition.
An additional condition will be added as A3.1 as follows
“Between the hours of 6:30am and 7:00am Monday to Saturday:
No machinery is to travel in reverse on the site;
No loading or unloading or securing of any load on any truck is to occur on the site”
I give leave to the appellant to file the amended notice of appeal.
The appeal is adjourned for final orders to be made. Since the currency period for the 1993 approval is exhausted, I suggest it would be appropriate to reflect the alteration of conditions in any approval of the re-application of 29 April 2004.
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