Land and Environment Court of New South Wales CITATION : CAMERON CHISHOLM & NICOL v. STRATHFIELD MUNICIPAL COUNCIL [1998] NSWLEC 97 (22 May 1998) [1998] NSWLEC 43 PARTIES : CAMERON CHISHOLM & NICOL v. STRATHFIELD MUNICIPAL COUNCIL [1998] NSWLEC 97 (22 May 1998) FILE NUMBER(S) : 10189 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 Strathfield Local Environmental Plan No.70 CASES CITED: Remath Investments (No 6) Pty Limited v Botany Bay Council, Matter Nos. 10465-6 of 1997, Talbot J, 9 March 1998 DATES OF HEARING: 11, 12 and 13 February 1998 DATE OF JUDGMENT: 05/22/1998 Mr S Austin QC LEGAL REPRESENTATIVES: Mr A Galasso, Barrister JUDGMENT: These are Class 1 proceedings commenced on 3 April 1997 in which the applicant acts on behalf of the Franklins chain of supermarkets ("Franklins"). The proceedings concern the Franklins supermarket within the Strathfield Plaza development ("the Plaza") which is owned by Memo Corporation Australia Pty Limited and managed by JLW Centre Management. The question at issue is the operation of the loading dock facilities that service that supermarket - in particular, its hours of operation. The appeal is against the Council's imposition of a particular condition regarding the dock's operations and its refusal of an application made under s 102 of the Environmental Planning & Assessment Act 1979 ("EPAA") dated 28 January 1997 to vary that condition (see document 5 in Exhibit C5 ). 2. BACKGROUND The relevant area of Strathfield is bounded by Raw Square on its west, Churchill Avenue on its north, Redmyre Road on its south and The Boulevard on its east. The relevant area accommodates a multi-purpose development very close to the major Strathfield Railway Station, a bus interchange and a general suburban shopping area and business district. The relevant planning instrument is Strathfield Local Environmental Plan No.70 ("LEP 70") dated 8 March 1996 (see document 7 in Exhibit C5 ). LEP 70 applies to the Strathfield town centre area, including the subject site. The Strathfield town centre area is zoned 3(a) Business General, and the subject site is cross-hatched on the LEP map to indicate that clause 61 BC(2) of LEP 70 applies. The evidence indicates that this multi purpose development dates back to a consent issued 14 December 1977 (document 6 in Exhibit C5 ), and includes the Plaza shopping complex, associated parking, one large commercial building of approximately 9 storeys, and a multi-storey block of 130 home units ("the units"). There are other commercial buildings nearby, to the west of the Plaza. The top level of the carpark building is level with the bottom level (level 6) of the units. The carpark entry is via a bridge over the laneway which provides access to the relevant dock area. The units occupy levels 6 to 19 of their building within the subject site - relevantly, 39 of the units face east and 39 face south, but level 8 is the lowest level of the units having a direct sight line to the dock area. Consent to use an area of the Plaza for a Franklins Supermarket dates from 29 May 1980 (see document 3 in Exhibit C5 ). There is extensive high density residential development taking place in the Strathfield area. Indeed, one witness suggested that in the near future some 1200 additional residential units will be added to the Strathfield housing stock in close proximity to the Plaza. With the changing pattern of working hours and shopping behaviour, Franklins now have three types of supermarkets - "No Frills", "Franklins Fresh", and "Big Fresh". The Franklins within the Plaza has operated as a "No Frills" since its establishment pursuant to the 1980 consent. By way of a development application lodged on 26 April 1996, in the name Cameron Chisholm and Nicol (NSW) Pty Limited (which trades as Cameron Chisholm and Nicol), Franklins sought an expansion of its floor space within the Plaza to facilitate changing the use of its Strathfield supermarket from "No Frills" to "Franklins Fresh" (see document 1 in Exhibit C5 ). The respondent Council granted consent to the relevant development application ("DC96/44") on 6 August 1996 (see Exhibit A1 and document 4 of Exhibit C5 ). The consent became operative on 16 August 1996 and also encompassed an increase of some 44 spaces in the amount of carparking available on level 2 on the northern side of the attached carpark building. The expansion of supermarket floor space from 1436 to 2533 square metres displaced some specialty shops from the Plaza. Until that occurred, some 11 traders shared with Franklins the use of one of the Plaza dock areas, namely that connected by the above mentioned narrow lane to Churchill Avenue. In consequence of the expansion, that Churchill Avenue dock became exclusively the province of Franklins, and the specialty shops were diverted to another dock, accessed off Orrs Lane. The Churchill Avenue dock area was redesigned to suit the requirements of Franklins. The laneway access also provides access to fire escapes and garbage services for the units, and access to the rear entrance of a busy Chinese Restaurant within the complex. The conversion of the main dock area to Franklins' exclusive use has removed many smaller delivery vehicles and made it more efficient for larger vehicles. Council imposed many conditions on DC96/44. There has been no complaint about the operation of the supermarket, nor of the carpark - the case focused on condition 10. Condition 10 appears to be something of a "standard" condition for this Council (see Document 4 in Exhibit C5 ). It provides in par (a) that the supermarket may trade 24 hours per day, 7 days per week; but in (b) it provides that: "the delivery of goods, material and the like to the premises and the despatch of goods, material and the like from the premises shall only take place between 7.30am-7.30pm Monday-Friday, and 7.30am-12 noon Saturdays and no goods, material or the like shall be delivered or despatched outside these hours". The December 1977 development consent contained no restrictions on the use of the loading dock, either by Franklins or the other tenants. In fact no restrictions were placed on the use of the dock until the 1996 imposition of condition 10(b). Condition 11 relevantly provides that "the loading docks and carparking spaces shall not be used for storage purpose at any time". The conditions also restricted construction and demolition work to 7am-5pm eastern standard time and 7am-7pm daylight saving time, Monday-Saturday, and prohibited it on Sunday. 3. franklins' strathfield OPERATION In the 1980 consent, hours were seriously limited, but those restrictions were deleted for all shops in the Plaza on 22 November 1984, when shopping hours generally were being deregulated. In the "expansion" application referred to above, Franklins sought the opportunity to trade 24 hours per day , 7 days per week, but nominated as their "proposed working hours" 7am-11pm weekdays, 7am-7pm Saturdays, and 7am-6pm Sundays. DC 96/44 allows 24 hour trading , but at the time of the hearing, Franklins Strathfield was trading 7am-10pm weekdays, 7am-7pm Saturday, and 8am-7pm Sunday. On public holidays the supermarket does not necessarily open at all, and, if it does, not necessarily for the usual Sunday hours. For all intents and purposes, however, public holiday supermarket operation may be regarded as the same as Sunday. The Store Manager (Mr John Zarb) testified that staff working hours are from two hours prior to opening to two hours after closing. One of their principal tasks is stocking shelves for the supermarket's trading hours. He also testified that he thought the Plaza security staff work 5am-2am. Franklins Strathfield is apparently proving to be a very successful operation. There has been a dramatic increase in patronage from 16,000 to 24,000 customers per week, and since Strathfield became one of the 24 "Franklins Fresh" operations, there has been an 80% increase in the supermarket's turnover per week. Zarb has been the manager at Franklins Strathfield for some 18 months but has extensive supermarket experience. He has felt it necessary to extend opening hours at Strathfield several times. Franklins used to open 8am to 9pm weekdays, and to 6pm on weekends. Not long ago the supermarket was open only 8am-7pm. Those referred to above as the current hours have operated only since October 1997. These extra opening hours, Zarb says, have been brought about by customer demand and as a result of information provided in the supermarket's suggestion box. The expanded and converted operation which was the subject of DC 96/44 commenced on 25 November 1996 . The busiest time of the retail year for Franklins is Easter, and the second busiest, Christmas. Zarb estimates that the normal "settling in" period for a new operation is 16 weeks. However, because the enlarged operation commenced so close to Christmas 1996, and Easter fell within its early days, the supermarket did not "settle into a routine" until approximately July or August 1997. Regrettably for the applicant, November 1996 is the date identified in the evidence of the neighbours' observations and concerns as the beginning of their problems with the "disturbance" generated by dock operations. The evidence led on behalf of Franklins indicates that customers now tend to shop daily, rather than do a large weekly "order", and the continued success of the Strathfield operation depends upon the availability of fresh produce at all times - Zarb says there is little point in being open at 7am if the customer cannot buy fresh bread. Thursday takings are currently 17 ½%, Friday 16%, Saturday 17%, and Sunday and Monday 11% of the weekly total. Zarb identifies Sunday and Monday as big opportunities for improvement. Business on Sunday and Monday is picking up dramatically and the effect of the operating restrictions on the delivery dock is now seen by Franklins to be acute. Zarb testified that the only thing holding the supermarket back is the restrictions on the operation of its loading dock. These days supermarkets do not keep large reserves of stock, fresh or otherwise. They usually hold only 1.5 days' supply, and are regularly serviced by large pallet loads of stock provided from outlying warehouses. Early each morning, it is necessary for supermarkets such as Franklins Strathfield to take in fresh supplies of greens, bread, chicken and meat. 1.5 days is about the "life" of fresh produce and the store would prefer to receive its deliveries 1 hour before opening. 4. FRANKLINS' DEALINGS WITH COUNCIL When the Council considered DA 96/44 on 6 August 1996, units 10A, 10K, 16A,17A, 17H, and 18A of 30-34 Churchill Avenue, had objected to the proposal and urged that the loading areas off Churchill Avenue should be roofed and that air-conditioning motors, compactor and truck activities within the loading area cause a noise problem to residents in the adjoining units. Council officers held the view that "the limited hours for loading should assist in addressing this problem, however, it would be unreasonable to request the area to be roofed as requested by the residents within the submissions". Their report went on to say that 24 hour supermarket operation would be a good idea; "however, it would be important to ensure that deliveries of goods are still restricted between the hours of 7.30am-7.30pm Monday - Friday and 7.30am-midday Saturday. The restriction to the delivery of goods should assist in reducing any noise which would be generated which would interfere with the amenity of the residents within the flats adjoining this dock area." In early November 1996, Franklins Limited and James Lang Wootton Shopping Centre Division made a joint s102 application to vary condition 10 (b) (see document 5 in Exhibit C5 ). In the application, it was said that "to restrict the operation of the loading dock to the hours proposed would have a substantial and negative impact on the operation of the Franklins Fresh supermarket to the point where it would not be economically viable to operate and imposes new restrictions on loading which were not imposed in the last 19 years". The proposed expanded operation of Franklins Strathfield was said to promise substantial benefit to the environment and reduced impact on neighbouring residences, as exclusive access to the dock would enable Franklins to employ newer, larger, more modern and substantially quieter rolling stock. These larger loads were to be handled by "quieter, rubber-wheeled pallet jacks". The vehicles themselves were rated as 23% quieter than the older trucks and the application predicted there would be a reduction in the number of overall deliveries "notwithstanding the expected substantial increase in overall business generated at this supermarket". The s102 application nominated dock operating times of 6.30am - midnight Monday - Friday, 6.30am - 10pm Saturday, and 6.30am - 8pm Sunday. Council received 87 letters of objection to this application and, as a consequence, there were negotiations between Franklins and the Council, resulting in an amended proposal outlined in a letter to Council dated 26 November 1996. This letter nominated hours of operation of the loading dock facilities as 6.30am - 10pm Monday - Saturday, and 8am - 2pm Sunday, and made the point that the spread of hours is required to achieve efficient transport utilisation and speedy re-stocking, not to accommodate more movements. For 16 years to that time, Franklins Strathfield had had fresh bread deliveries on Sundays, one from each of the two major suppliers. It asked also for one fresh fruit and vegetable delivery on Sundays. Attached to the letter of 26 November 1996 was a study of "Environmental Noise Impact" prepared by Day Design Pty Ltd. That study was commissioned by Franklins, but at the request of Council, to assess environmental impact of the proposed extension to the operating hours of the loading dock. As the Franklins truck movements were no noisier than the EPA recommended "acceptable" level, Day Design found "the noise impact of the extended operating hours to be acceptable", and said that "the proposed extension of operating hours will not impair the acoustic amenity at the nearby residential premises". The proposal outlined in the letter of 26 November 1996 was placed on public exhibition from 20 December 1996 - 15 January 1997 and 339 persons were notified. Written submissions were received by Council from units 6A, 6F, 7K, 10K, 14K, and the Body Corporate of 30-34 Churchill Avenue and 5 Allenby Crescent. Those submissions complained about activities outside the hours that had been stipulated in condition 10(b), including the use of the loading dock for parking, as early as 5.45am and as late as 10.20pm, the arrival of compactors as early as 5.30am, and the collection of garbage as early as 3.30am. Council considered the proposal at a Council meeting on 28 January 1997. A Council officers' report to that meeting suggested that the revised amendment be agreed to but that restrictions be imposed limiting the Sunday deliveries to the two bread deliveries and one fresh fruit and vegetable delivery, with no deliveries of groceries. The favourable recommendation was not adopted by the Planning Building & Environmental Services Committee of Council. 5. FRANKLINS' DEALINGS WITH NEIGHBOURS Franklins' files indicated that in 16 years of trading they had not received one complaint about noise in the loading dock. Franklins had been informed that Council also had no complaints, nor had Centre Management. Zarb (the Store Manager) gave evidence that he makes every effort to dialogue with his customers and, from his very early days in his current position, he has developed a consultative arrangement with a lady who lives in the home units, called "Tess". He has seen her also attend Council-organised meetings, at which she appeared to him to be the spokesperson for the residents of the units, and he sees her regularly shopping in his supermarket. Zarb also testified that when problems have been brought to his attention by Tess, he has endeavoured to solve them completely and quickly. For example, early in 1997 there was a big problem about garbage trucks arriving before 7.30am. He gave the then garbage contractor three warnings, and when they were unable to comply with his directive, he replaced them. Particular noise complaints brought to his attention concern the sound of compressors on refrigerated vans, and the rattling of "colby" trolleys. 6. The Issues in the Case In the Statement of Issues filed 9 May 1997 the question was posed as to whether, as a matter of law, it was within the power of the Council to impose condition 10(b) upon its consent to the development. At the beginning of the hearing Mr Austin reserved his position in respect of the legal point and sought to have the hearing concentrate on the merits issue. At the close of the evidence he indicated that the applicant did not press the legal point. As it was not argued that the condition was not "reasonable", the Court must determine its merit. Given the Council's refusal of the s 102 application, the applicant seeks the Court's approval to an amended condition 10(b) . When the hearing commenced, the suggested draft condition was worded as follows: "(i) The loading of goods, material and the like to the premises and the despatch of goods, material and the like from the premises via loading docks 1 and 2 (off Churchill Avenue) shall only take place between:- 7am and 8pm Monday to Friday 7am and 8pm Saturday 8am and 5pm Sunday (ii) Vehicular gates shall be installed as soon as practicable between the Churchill Road entrance and loading docks 1 and 2. Those gates shall be closed:- Monday to Friday 8pm to 7am on the following day Saturday 8pm to 8am on the Sunday following Sunday 5pm to 7am on the Monday following (iii) The opening and closing of the vehicular gates shall be the responsibility of Franklins security staff. (iv) A speed limit of 8kph shall be posted at and implemented inside the vehicular gates. (v) No staff parking to be permitted inside the vehicular gates at any time. (vi) No overnight truck parking to be permitted inside the vehicular gates. (vii) A roller shutter door is to be installed as soon as practical at the western entry end of loading dock no.2 and closed and kept closed during the following hours:- Monday to Friday 8pm to 7am on the following day Saturday 8pm to 8am on the Sunday following Sunday 5pm to 7am on the Monday following (viii) No public address system to be used in the loading docks except for emergency fire evacuation." (See Exhibit A3 ). At the conclusion of the evidence the applicant suggested some additional sub-clauses and the ultimate suggestion in Exhibit A3 is that condition 10(b) should provide as follows : "(i) The unloading of goods, material and the like into the premises and the despatch of goods, material and the like from the premises via loading docks 1 and 2 (off Churchill Avenue) shall only take place between:- 7am and 8pm Monday to Friday 7am and 8pm Saturday 8am and 5pm Sunday If Franklins is made aware of circumstances beyond its control which prevented it from receiving deliveries within the hours in 10B(i) and deliveries are required to take place outside these hours, Franklins will use its best endeavours to inform the residents of Plaza Towers by placing a notice on the community notice board as soon as reasonably practicable. [Franklins will approach body corporate to get permission to erect the community notice board which will be erected at Franklins cost]. (ii) Vehicular gates shall be installed as soon as practicable between the Churchill Road entrance and loading docks 1 and 2. Those gates shall be closed:- Monday to Friday 8pm to 7am on the following day Saturday 8pm to 8am on the Sunday following Sunday 5pm to 7am on the Monday following A sign shall be placed on the gates to the following effect 'The Franklins dock is open at the following times ONLY : Monday to Friday 7am to 8pm Saturday 7am to 8pm Sunday 8am to 5pm' (iii) The opening and closing of the vehicular gates shall be the responsibility of Franklins. (iv) A speed limit of 8kph shall be posted at and implemented inside the vehicular gates. (v) No staff parking to be permitted inside the vehicular gates at any time. (vi) No overnight truck parking to be permitted inside the vehicular gates. (vii) A roller shutter door is to be installed as soon as practical at the western entry end of loading dock no.2 and closed and kept closed during the following hours:- Monday to Friday 8pm to 7am on the following day Saturday 8pm to 8am on the Sunday following Sunday 5pm to 7am on the Monday following (viii) Colby Trolleys shall not be moved outside the roller shutter door between the hours nominated in condition (vii). (ix) No public address system to be used in the loading docks except for emergency fire evacuation. (x) A sign to the following effect shall be prominently displayed in the loading dock. 'This loading dock is within hearing of peoples homes. Please make as little noise as possible.' (xi) No use of the bale press in Docks 1 & 2 is to take place during the hours nominated in sub-condition (vii) above unless the roller shutter door to that dock is closed". The Plaza neighbourhood has a number of sources of noise. The units are located in a suburban business district, surrounded by the Shopping Plaza, various office buildings, a major rail centre, a bus interchange, and heavily trafficked roads. Dock operations involve noises such as reversing engines, reversing alarms, refrigeration compressors, airbrakes, etc. and these were identified as problems when the Development Application was advertised. The main concern of the residents may be seen to be the haphazard operation of garbage services. There are four services impacting on the dock area, one each for the flats, the Chinese restaurant, the Centre, and Franklins. At the end of the day the real issue in this case concerns the disturbance caused by the arrival of goods and the departure of garbage. Resolution by the Court of the arrival question may not fully resolve the garbage issue. 7. The Parties' Major Contentions (a) The Applicant's Contentions Counsel for the applicant in opening the case suggested that the experts were unanimous that 7am to 8pm Monday to Friday was appropriate, but there was a dispute about Saturday - he said that the experts agreed that 7am was an appropriate starting time for Saturday, but the finishing time was not agreed and there was a suggestion that the afternoon should be free of deliveries. The parties agreed that if there were to be Sunday deliveries, 8am was an appropriate starting time. There were suggestions during the evidence that windows of 8am-10am or 9am-12noon would be acceptable. However, the applicant's draft condition debated at the hearing nominates 8am-5pm. Centre Management, which controls much of the garbage collection activity, has agreed to the suggested gates and shutters. The applicant acknowledged that while attention has to be paid to the residents' amenity, there is a wider public interest, namely the customers of Franklins. The Court heard evidence of the difficulties of running a large modern supermarket, and of the realities of change and the evolution of different living conditions. The task of the Court in a case such as this is to minimise the adverse impact on the neighbourhood of the evolution of non-traditional working hours and new shopping hours. The applicant contends that residents of the units spend little time on their balconies and experience limited noise inside. Counsel for the applicant conceded that the supermarket had not observed Council's conditions on all occasions, but alleged that its contraventions were only during the "bedding in" time and periods of industrial disputation. (The evidence went beyond this). The revised version of the suggested condition in Exhibit A3 involved improved communications, "education" of truckers in the shortest possible time, the gates to be the responsibility of Franklins' staff, and the Colby trolleys and the baler operations to be better controlled. When it was pointed out that there were two bale presses in the dock area, the appropriate part of Exhibit A3 was amended accordingly. (b) The Council's Contentions Council contended that there should be no "rider" added to the conditions, providing for notice of any contravention of times set. The Court's approval should not be construed as excusing, in advance, any breach of the condition it imposes. The Court should compare the amenity of the residents prior to November 1996 and with their amenity after the implementation of any decision in these proceedings. The operating hours suggested by the applicant are "windows of convenience" for Franklins, and involve dramatic change on the weekend. Prior to November 1996, the residents indicated they had little weekday noise, and no real noise at all on the weekends, from the dock. Franklins appear to have operated quite successfully since the expansion of their supermarket, without a change in the condition regarding the dock. 8. THE APPLICANT'S EVIDENCE (a) George Fisher Mr Fisher is the Contract Manager in charge of operation management and distribution for Franklins Limited (see Exhibit A5 ). He testified that his responsibilities include arranging and supervising the distribution of goods from Franklins warehouses to its stores. All warehouses deliver to all 134 stores. Managers of individual stores add to the computerised orders that are generated and do so once or twice a day. This could involve the diversion of trucks and the division of loads among stores. It is Franklins' aim to get orders out within 12 hours. Strathfield is serviced particularly by the warehouse at Ingleburn. As the scanned orders are processed at approximately 2am, the required goods deliveries are produced ready for delivery by 6am. If the Store Manager accesses the Franklins ordering system prior to 10.30am on any day, he receives priority delivery. He gave evidence as to the volumes handled, and the impact of "specials" promotions. In a recent "specials" promotion, Franklins had to deliver an extra 56 truck loads of stock on a Sunday due to underestimation of customer demand. Customers are frequently known to fill a trolley, but abandon it, when they discover that the "special" is not available. Stores cannot survive without quick and prompt delivery from the warehouses. Most producers and manufacturers deliver their goods to the warehouses, and Franklins then divide them and deliver them to the stores. Franklins operate "market trucks" direct with fresh produce from Flemington, and stores also receive direct deliveries from food suppliers, such as bakers and butchers. Fisher wants maximum flexibility in order to cope with the varying demands of the Franklins network. He says the majority of stores have unrestricted loading and unloading times, and any change in the Strathfield times will affect the other 134 shops. He would prefer to do all his deliveries at night as the warehouses work 24 hours a day. Garbage trucks need to collect between 7am and 3pm, as they need to be at the tip by 4pm. Because of the success of the Strathfield store it is targeted by Franklins for 12 hour delivery, ie goods are delivered within 12 hours of being ordered. In his statement, Fisher states that the competitiveness of service and the smallness of margins in the supermarket industry is illustrated by the fact that for every $50 of cost of sales, an extra $10,000 of gross sales must be made to recoup that cost. He currently schedules major deliveries to Strathfield between 1pm and 3pm. Each day Strathfield should receive 2 dry grocery semi-trailers, 1 fresh produce semi-trailer , 1 chiller from P & O, plus bakers, meat, poultry and garbage. The dry grocery deliveries occur between 12 noon and 5pm Monday- Friday and 8am-12 noon Saturday. The demand for better service on Monday at Strathfield is heavy because of the absence of Sunday deliveries. Whereas he may only send Franklins trucks in a 5 hour "window", all the other suppliers need to be able to deliver as well, and Franklins has little control over their operations. Fisher also gave evidence of industrial disputation and identified some drivers daily worksheets which showed deliveries outside the permitted times. He associated these deliveries with major industrial disputation requiring greater flexibility in commercial decisions, (see Exhibit C6 ). Apart from industrial problems, the delivery timetable can be affected by traffic and equipment failure. (b) John Zarb Zarb is the Store Manager at Franklins Strathfield and has been since 25 November 1996. He was Deputy Market Manager at 2 other Franklins stores for over 16 months before that, and prior to working at Franklins, was Assistant Manager at about 13 Coles Myer stores. He believes that the produce available in a "Franklins Fresh" store must be fresh while ever the store is open. It is important that a peak delivery arrives first thing in the morning - the store must get "greens", bread, chicken and meat onto the shelves at opening time. The dock needs to be open, at least, by 7am. There will be peak "fresh" demand between 7am and 8.30am. It takes approximately 10 minutes to get bread from the truck to the shelves, and he needs bread on the shelves by no later than 7.15am. He would prefer the bakery trucks to be in, and gone, by 7am. He believes that as everyone now arrives at once, it adds to the noise generated. If fresh produce trucks arrive between 7am and 7.30am, the stock may get to the shelves as late as 9am. On Sundays he needs a bakery truck by at least 8am, in order for fresh bread to be on the shelves by 8.15am, and for the dock to be cleared for the delivery of fresh produce. Refrigerated vans deliver Monday-Saturday 9am-4pm, and do not deliver on Sunday. He has directed his staff to leave the empty Colbys inside the grocery receiving area, inside the store, and not to bring them out until the next morning at 6.30am-7am - they need to be brought out at that time because space needs to be cleared for the deliveries of fresh produce and bread. The grocery pallets stay within the grocery receiving area and do not create a noise nuisance. There are two bale presses, one in the "fresh" dock area, and the other in the "grocery" dock area. Both of these must be used up to 10pm, as staff attend to shelf replenishment between 8pm and 11pm, when the store is quiet and deliveries have been completed. He has directed his staff not to use the press in the "fresh" dock area, which is on the outside of the loading dock, after 10pm, but he needs to use the grocery dock press after 10pm. The roller door is now pulled down and this has reduced the noise emanating from the press. The PA system has been fitted with a by-pass switch. Generally, the only announcements which will now be heard in the loading dock area will be fire emergency orders. He has asked that P & O trucks switch off their compressors while in the dock, and he is trying to get other refrigerated truck operators (e.g. chicken) to do the same. He produced 2 letters from the Centre Management office at Strathfield Plaza dated 5 and 10 February 1998, expressing no objection to the proposed erection of gates and a roller door. The proposed gates will not obstruct the side door of the Wan Fu restaurant. The current traffic in pallets is an average of 10 per day (12 on Friday) of fresh produce, 30 grocery, 2 from P & O, plus 6 Colbys for dairy products, and 1.5 pallets of chicken. Some of the trucks can carry up to 22 pallets and, generally speaking, Fisher said that there were 85 "cases" to the pallet. Zarb confirmed the pattern of industrial disputation and indicated that he had given an "instruction" that trucks would not be admitted to the dock after 8pm. He had not considered notifying the residents by letter drop when a breach of the conditions was in the offing, but he had always told "Tess". Generally the Franklins semi-trailer arrives about 8am, rarely earlier. He acknowledged the unloading noise caused by the checker plate tailgate of some vehicles, and that the smaller trucks made the same noise, so far as their reversing alarm was concerned. He indicated that 70% to 80% stocking was about the crucial mark, and that the supermarket was at its fullest on Thursday morning. 7am-8pm should prove adequate in normal circumstances, but he now has to have a big order in on Saturday, because it has to last until 11am on Monday. 7am-8pm should even prove to be adequate if he expands to 24 hour trading, but he has never proposed 24 hour delivery. He has been sending trucks away that come outside the normal hours. All Franklins garbage is stored within the gate area. Mondays are a great potential growth day for him, but he quite often has 300 "out of stock" items first thing Monday morning. He therefore needs dry goods Sunday evening. It may be possible to arrange for bread deliveries at night, or even late afternoon. A lot of shift workers reside in the Strathfield area because of the good train service. (c) Neil Ingham Planning consultant Neil Ingham's report ( Exhibit A2 ) addresses "the reasonableness of this condition in the circumstances of this application", given that the condition modifies substantially those hours that were permissible between 1977 and 1996. He points out in his report that the residents of the units purchased with full knowledge that (i) the dock was in that position, and (ii) that it was associated with an extended-hours shopping centre. This condition will make it "virtually impossible for the store to operate in a reasonable manner". He deduced from the Steven Cooper Acoustics report that the noise generated by the loading dock 7am-10pm six days a week, and 8am-5pm Sundays, would not infringe the EPA noise control requirements for residential amenity. In his opinion, the level of noise generated from the dock during the day is not unreasonable in terms of the residential amenity of the locality as this is a residential project within a commercial zone having relevantly high ambient noise levels. Ingham says that the use of the dock predates the occupation of the adjoining residential flat building, that residents acknowledge the community value of Sunday deliveries to facilitate ease of shopping, that the concrete slabs in the unit block protect the units from some noise, and that residents should expect the daylight use of the dock 7 days per week in these modern times. 2-3 hours on Sunday would be too restrictive. The roofing option would be very expensive. (d) Steven Cooper Steven Cooper is the principal of Steven Cooper Acoustics Pty Limited (see Exhibit A4 ). His report draws attention to the Day Design report which refers to the sleep arousal criterion applying between 10pm and 7am. Day Design had found relatively high ambient noise levels due to the general mechanical plant and traffic noise in the commercial area of Strathfield, and the estimated noise emission from the loading dock was less than, or equal to, the existing ambient noise level. His report does not distinguish between Sundays and other days of the week. He reports on discussions between Franklins and the Council during which a proposal was put forward to permit the use of the relevant loading dock 6.30am-12 midnight Monday-Friday, 6.30am-10pm Saturday, and 6.30am-8pm Sunday. He recommends that roofing would be required for a 24 hour operation, but not if trucks are restricted between the hours of 10pm and 7am; hence the proposed gates. His report does not distinguish between Sundays and other days of the week. The noise generated by work in the dock, not necessarily involving unloading, would be controlled by the roller door. At page 10 of his report he says: "Notwithstanding the absence of quantitative information provided by Council as to the acoustic impact of the loading dock, it is apparent that any residential apartment building located in a commercial district will be subject to noise associated with activities serving that commercial district. It is not an uncommon issue to find residents being disturbed by garbage trucks leading to a request where possible and practicable for the hours of the garbage truck to be moved to normal business hours. One practical method to ensure that the garbage compactor, Council street sweeper and other delivery trucks cannot gain access to the loading dock between 10pm and 7am is to install a set of gates at the Churchill Avenue entrance". Cooper was closely questioned about the differences between his evidence and that of Challis, and the EPA manual. He was shown Exhibit C10 , which was Challis' suggested condition and he gave evidence that his costings for a roof did not include paragraphs 4-6 of that exhibit. On the basis of his costing of $350,000 he thought that the awning outlined in Exhibit C10 might cost $700,000. He testified that his $350,000 estimate came from a Quantity Surveyor. Erection of the gates under the bridge will still facilitate some parking in the lane out of the necessary hours. (e) Exhibits Mr Austin tendered a schedule of public transport timetables, indicating the times of the first and last buses and trains each day, and their frequency during the day, through the Strathfield station area. Of the scheduled CityRail services, the earliest seems to be 3.48am and the latest 1.57am Monday-Friday. On weekends the earliest would appear to be 4.19am and the latest 2.33am. From the tendered bus timetables it would appear that the first bus is 5.22am and the last 12.47am Monday-Friday, 5.37am and the last 12.47am Saturday, 6.26am and the last 10.38pm Sunday. 9. COUNCIL'S EVIDENCE (a) Two residents The Council called two residents who had expressed objection to the expansion of hours. Mrs Rosemary Oates holds a 4B Drivers Licence and works in a senior administrative position in the aged care industry. She goes to work at approximately 8am and returns to the unit (10K) at 5.30pm. She and her husband own the unit and have lived there for 5 years. They made some preliminary enquiries when they purchased it and were alerted to the likelihood of garbage vehicles and other "light" delivery vehicles. Her observation was that the noise was not excessive for a couple of years and there was no problem in the middle of the night. Garbage trucks tended to come between 7am and 7.30am Monday-Friday, and she didn't notice any disturbance from other vehicles. She first noticed offensive noises from the dock after the redevelopment of the plaza and the addition to the carparking and the supermarket. She never had any difficulties with Saturdays or Sundays, but the noise is now excessive as to volume, frequency, and the time of day. She is not a regular "primary shopper" at Franklins. She and her husband wrote to the Council on 6 July 1996 ( Exhibit C7 ). Their complaints included 5 garbage collections between 6am-7.30am daily, the use of docks from 5am, sometimes 7 days a week, compressor noise and the bale press. They installed an air-conditioning unit in their living area 2 years ago so that they could close their balcony door, and hear their television. This installation took place during the construction noise period. There is no air-conditioning in the bedroom, and the external noise is very intrusive when the window is opened. She has diarised major noises incidents 1997-1998, and her diaries were tendered in evidence ( Exhibit C9 ). She gave evidence about all the incidents recorded therein. She did not have a problem with 7am starts, but thought 8pm was a bit late. 7am-7pm Monday-Friday was not unreasonable. Saturday morning would be all right, but not a 7am start, and there should be no deliveries at all on Sunday. Her husband is involved in the Body Corporate and a letter from the Secretary of the Body Corporate dated 5 February 1998 was tendered, authorising Mrs Oates to give evidence on behalf of the Body Corporate. (The Secretary does not reside in the building). She conceded that she had never raised her complaints with Franklins itself, but she had taken them to the Council because she was encouraged to do so when she first enquired. The garbage from the units goes into a cage in the front part of the driveway of the dock. She is not troubled by other air-conditioning and motor noises above the driveway area, and no vans appear to deliver to the restaurant after 10pm. Miss Marie Erwin lives in unit 11K. She rents it and has been there since October 1993. She has been retired for some 7 years and was a School Principal. The noise has increased and it is sometimes quite noisy at night time. She did take some notes of particular incidents but had sent them to the Council and did not have copies available. She is concerned about forklift/pallet jack noise. She does not have air-conditioning, or even ventilators, and needs to have her door open for air, but she has to close the door to hear her music, etc. She is a loyal Franklins customer and is very impressed with the store, but she objects strongly to the noise. The current times Monday-Saturday are acceptable to her, but they must be adhered to. In respect of Exhibit A3 , she was comfortable with 7am Monday-Friday, but not 8pm. 6pm or 7.30pm would be more appropriate. 7am Saturday is also acceptable, but she would prefer operations to conclude by say 12.30pm or 2pm. Sunday 8am-12noon or 2pm, would also be acceptable. She has not noticed that any refrigerated vans are turning off their compressors. (b) David Crane David Crane & Associates Pty Limited are Planning Development and Building consultants and Mr Crane personally holds Town & Country Planning qualifications. He has an extensive Local Government background and has conducted his consultancy since 1995. His principal report is dated 27 January 1998 ( Exhibit C1 ), and he also prepared a Statement of Evidence in Reply dated 6 February 1998 ( Exhibit C2 ). During the preparation of his report he engaged a Traffic Survey team which, over a 2 day period in June 1997, found 140 vehicles to enter the loading dock between 6.30am and 7.30pm, 70 of which were fitted with reversing alarms. These numbers compare with the James Lang Wootton Franklins combined submission to Council suggesting that the Strathfield Fresh Store would generate a total of 169 deliveries per week , and that the number of trucks using the dock would be substantially reduced. The total was 193 when the dock was shared by Franklins No Frills and 11 specialty shops. Crane considers the existing condition to be appropriate, given the design and layout of the dock, and the close proximity of a residential building. Crane relied heavily on a report by Challis & Associates. At Annexure G of his Report in Exhibit C1 , is a contravention notice addressed to Mr Zarb by the Director of Planning, Building & Environmental Services at the Council, dated 19 March 1997, re alleged breach of condition 10(b). In his Report in Reply, Crane dealt with Ingham's report. In his oral evidence, he conceded that the design of the dock next to a block of flats was most unusual, and that its "canyon-like" effect gave rise to higher levels of noise. There was low background noise early in the day, such as 6.50am, but a gradual increase through the day, in public transport and other noises. He believed that people were entitled to expect less noise on a Saturday than a Monday-Friday, and that it should cease at say 1pm on Saturdays. As he acknowledged that Franklins require a delivery on a Sunday, a window of 9am-12noon should be adequate. They should not need a dry goods delivery on a Sunday, and the earlier in the day it gets other produce, the better, but not too early . He acknowledged in cross-examination that Mrs Erwin said 8am on Sunday would be acceptable, but he basically agreed with Mrs Oates. He was concerned about early arrival of vehicles, whatever time the dock opened. (c) Louis Challis Challis & Associates Pty Limited are consulting acoustical and vibration engineers who have been operating since 1966. Louis Challis is the Founder and Managing Director of the company. Challis prepared a report for the Council's solicitors ( Exhibit C3 ) and subsequently a Report in Reply to the reports of Cooper and Ingham ( Exhibit C4 ). His report notes: "… a frequent cause of both early morning and nocturnal annoyance is associated with the use of the Loading Dock Area. Additional noise annoyance is created by the arrival of delivery trucks before 7.30am including large pantechnicon and other delivery trucks reversing into the Loading Dock Area. Those vehicles generate significant noise as a result of their reversing horns. Following their arrival, additional noise is generated by unloading operations conducted within the 'canyon-like' space. An examination of the complaints, reveals that there are other equally annoying sources of noise as typified by impulsive banging of the hydraulic ramp when being lowered, and from the movement of shopping trolleys during their retrieval and/or movement within the Loading Dock Area at night, following the closure of the stores within the Plaza." He goes on to note: "Strathfield Plaza's Loading Dock Area incorporates ventilation and air conditioning ducts, fan discharge outlets and other mechanical services as typified by kitchen exhaust fans, and refrigerant condensing units. The noise emitted by those systems and elements is both audible and measurable at the adjacent residential building's eastern facade. … All apartments on the eastern side of the building, as well as a large number on the southern side are subjected to noise generated within the Loading Dock Area. Whilst many of those units only have a limited view of the car park, the degree of noise impact is increased as a result of the reverberant canyon-like characteristics of the Loading Dock Area. Strathfield Plaza's car park does not currently appear to constitute a source of adverse noise annoyance outside normal approved trading hours. An extension of those trading hours, and further extension to the permissible hours of usage of Strathfield Plaza's Loading Dock Area, would clearly impinge on the amenity of the adjacent residential property." Challis conducted measurements in April 1997, and his report includes detailed results. Challis was closely questioned on these results, and on his methodology. He identified: "the presence of a number of nocturnal and early morning noise sources which are directly attributable to activities within the Loading Dock Area. A number of those activities, and particularly those with noise levels of 15 to 20 or more decibels above the prevailing background, have occurred at times which contravene the permissible (approved) operating hours for the site. The noise levels and the time at which they occurred are also counter to the guidelines and permissible noise emission limits published by the NSW EPA (in its Noise Control Manual), and those adopted by Strathfield Council for commercial activities located in mixed residential areas." He asserts that deliveries and uplifting from the loading dock have consistently taken place outside the specified operating hours, constituting "a gross and unacceptable loss of amenity for the residents", especially between 6am and 7.30am. Challis identified the primary sources of adverse noise impact as follows: · impact noise generated in the canyon-like reverberant space, and particularly the untreated hydraulic pallet lift. · unreasonably loud truck engine and forklift exhaust noise in the loading dock area. · excessively loud and extremely tonal reversing horns. · vocal activity of drivers and staff unloading and loading goods or waste. · the nocturnal movement of shopping trolleys in the loading dock area. He found also that "the overall background sound levels in the loading dock area are substantially higher than necessary" as a result of "inadequate silencing of Strathfield Plaza's mechanical plant, exhaust ducts, and air cooled condensing units", a situation which is "further exacerbated as a result of the absence of absorptive ceiling or wall linings within the loading dock area". He adds "the overall problem is further compounded by the lack of an effective sound attenuating enclosure over the loading dock area". Challis's report recommends installation of a roof covering the loading dock area and extending to Churchill Avenue. The specifications he recommends are included in a draft condition ( Exhibit C10 ). In the alternative, he recommends restrictive times for the use of the loading dock area, and the provision of gates which would only be open at those approved regulatory times. He recommends, however, that those restrictions should be supplemented by the provision of absorptive treatment within the loading dock area. In his conclusions he is critical of the Day Design report, saying he is "satisfied that the information contained therein fails to address the cogent issues and is fundamentally erroneous". He does not support a partial roof which he says "neither adequately addresses the current problems, nor resolves the expected future problems". In his Report in Reply, he infers that the Day Design report, having been conducted with Franklin's knowledge, may well have been coloured by contrived behaviour. He contends that the EPA explicit noise emission requirements are the appropriate criteria against which to assess the noise which both Day Design and Cooper claim complies with EPA criteria. He adopts the criteria that applied to a "residential area on a busy road or near an industrial or commercial area". He complains that neither Day Design nor Cooper made any attempt to deactivate the multiple items of air-conditioning, refrigeration and ventilation plant in order "to correctly, and formally assess the prevailing background noise at the monitoring location." He is critical of the Day Design report on which Cooper has relied. Cooper accepted, and based its commentary on, Day Design's minimal data which Challis regards as inadequate and technically inappropriate. Challis draws attention to the fact that, apart from Colby trolleys, during his visits to the site, he observed a number of Franklins' trolleys abandoned in the street and returned to the centre via the dock. Challis goes on to support Cooper's recommendations in respect of roller shutter doors and superior equipment on the pallet movers, as well as the restricted operation of the PA system. He also notes that the new Meriton building on the northern side of Churchill Avenue constitutes a large, and reasonably effective, noise control barrier for noise emitted from the main western railway line and to a lesser extent noise emitted by the rail overpass bridge. He notes that construction of the building had not commenced when Day Design prepared its report and that while the intrusive characteristics of railway noise will be reduced, the full benefit of the barrier cannot be achieved, because of the dominance of the noise emitted by Strathfield Plaza, and its tenants' air-conditioning ventilation and refrigeration plant. In commenting on Ingham's report, Challis makes the point a "genuine" 7.00am start, is not unreasonable in terms of both the EPA's and Council's daytime hours. In like manner, an 8.00pm cessation of activities is deemed to be appropriate on the basis that it is midway between the 6.00pm and 10.00pm evening shelf period recommended by AS1055. He supports the concept of an 8.00pm cessation, as that is the time at which a significant, if not a major, proportion of apartment owners will have completed their dinner, and will be seeking to enjoy peace and tranquillity within their apartments. Challis supports 7am-1pm as more than reasonable on a Saturday. In respect of Sundays he recommends 8am-10am which should be sufficient to enable the delivery of fresh bread and cakes. He goes on: "Alternatively, if Franklins are prepared to guarantee that the classification and related noise emission characteristics of the vehicles to be used for such deliveries conforms to category MB GVM 2 tonnes, with a peak drive-by noise emission which does not exceed 78dB(A) for diesel engines, or 77dB(A) for spark ignition engines, then some further latitude in respect of permissible delivery hours, may be considered by the court". Mr Galasso cross-examined Mr Cooper after hearing the evidence of Mr Challis and, during the course of that cross-examination, relied upon the EPA guidelines. He tendered as Exhibit C11 Schedule "21-1", which specifies background noise levels and their limits, working on the fact that, Monday to Saturday, daytime would be defined as 7am-10pm, and night time as 10pm-7am. On Sundays and Public Holidays daytime is 8am-10pm and night time is 10pm-8am. Although that schedule is dated 1985, Cooper's evidence was that the substance of the document, and its recommendations, have not changed. In his oral evidence Challis was asked about the slab protrusions beyond the alignment of the windows in the unit block, and he indicated that these acoustic characteristics cancelled each other out - some noise is shielded, for example, from a unit on level 11, but that sound is reflected into the unit on level 10. He conceded that 7am-2pm on Saturday would be acceptable, and that Sunday 8am was not an unreasonable compromise. He asserts that 7pm on Saturday night is "anti social and inappropriate". He adhered to his evidence that a 2 hour window on Sunday morning should be adequate as there is nothing fresh, other than milk and bread, to be delivered on Sundays. Only 40% of the vehicles that visit the site have reversing horns. (d) Exhibits The only other evidence tendered was an exchange of correspondence ( Exhibit C12 ), on a "without prejudice" basis, dealing with some negotiations about the possibility of roofing. One proposal advanced included an awning over the footpath area of Churchill Avenue "to provide effective screening of vehicular noise, at those times when a vehicle is backing from Churchill Avenue into the loading dock area". It also included a "Code of Conduct" for drivers to minimise unnecessary noise emission. 10. CONSIDERATION The Court took advantage of the opportunity to visit the site, and inspect the supermarket and the units, one afternoon and one morning. It is true that the occupants of a residential building in a commercial area, and/or a "busy" area, have to make allowances for their environment. By the same token, a supermarket that has been located next to a unit block for 20 years, must make allowances for its neighbours as well. There is soon to be a substantial increase in the nearby population. The only really effective solution to most of the complaints dealt with in this case would be roofing of the laneway providing access to Franklins' dock area. Currently only the carpark bridge over the laneway provides a physical barrier to the noise generated in this canyon-like laneway. Had the applicant sought an extension of the operating hours of the dock to 24, I would certainly have come to the view that the whole dock area, and perhaps the footpath at the entry point, would need to be roofed, probably as suggested in Exhibit C12 . Such a condition was not pressed in this case. However, there is noise generated, in and around the units, also in and from Churchill Avenue - all large vehicles need to reverse into the dock, and that requires substantial traffic movements, especially by semi-trailers, often in reverse, in the Churchill Avenue area. The function of the Court in this hearing is, therefore, to determine, in the absence of a roofing option, what is reasonable, both as to hours, from the residents' point of view, and as to other conditions, from the supermarket's point of view. I have come to have no real objection to operating hours of 7am-8pm Monday-Friday . While the residents would prefer an earlier finishing time I have concluded that their major problem would be too early a commencement time. Their most unacceptable disturbance is caused by pre-dawn garbage collections in the vicinity. My major concern in assessing the appropriate outcome of the matter has been therefore, the appropriate hours for the dock to operate on weekends . On balance, having considered all the expert acoustic evidence, along with the evidence of Franklins' management and local residents, I am of the view that the dock should be allowed to operate between 7am and 4pm on a Saturday and 8am and 12 noon on a Sunday . On public holidays the hours should not exceed those stipulated for Sundays (see Remath Investments (No 6) Pty Limited v Botany Bay Council, Matter Nos. 10465-6 of 1997, Talbot J, 9 March 1998). I have come to these conclusions by attempting to balance the interests of Franklins and the residents, as they were respectively presented to the Court. On the one hand, I have extended the hours of operation beyond that specified currently in condition 10(b) of DC96/44, because I am persuaded that such a restrictive condition would make it difficult, if not impossible, for Franklins Strathfield to operate in a viable manner, and that there is a public interest in the continued operation of a Franklins Fresh supermarket in the area. I also note that Mr Ingham contended that the use of the dock actually predated the occupation of the adjoining residential flat building. In any event, many, if not all, of the residents of the units purchased with full awareness of the location and openness of the dock. Furthermore, I accept that the noise generated by the loading dock during the hours I have determined would not exceed EPA noise control requirements for residential amenity. On the other hand, I have restricted the operating hours to less than those sought by the applicant, to provide at least some "windows of comfort" to residents during key leisure times on the weekend, namely Saturday evening, and Sunday afternoon and evening. In respect of the other conditions proposed in Exhibit A3, I do not believe that the Court should countenance the possibility that Franklins might unilaterally decide when they might breach the conditions, and then notify the residents of the units. I have accordingly decided to delete that proviso from the suggested condition. Vehicular gates should be installed as proposed, and they should be closed and locked outside the permitted dock hours. Requiring Franklins' staff to have responsibility for the opening and closing of the vehicular gates, rather than Plaza security staff, is also a sensible precaution. The suggested sign appears to be a good idea, and the speed limit, the staff parking, truck parking rules and PA system proposals, all appear to be appropriate; as do the roller shutter doors. There should certainly also be restrictions on the movement of Colby trolleys, and shopping trolleys, within the dock area. The suggested restrictions on the use of the bale presses is also appropriate. In addition, however, I believe that in the interests of residential amenity, the Court should impose what were suggested as "conditions 10, 11 and 12" in the Dunhill Madden Butler letter of 9 September 1997 ( Exhibit C12 ), regarding instructions to Franklins' trucking staff and contractors. 11. ORDERS Accordingly, the orders of the Court will be that the appeal be allowed , and the current condition 10(b) of Consent DC96/44 dated 26 April 1996 deleted and replaced with the following condition: "10(b) (i) The unloading of goods, material and the like into the premises and the despatch of goods, material and the like from the premises via loading docks 1 and 2 (off Churchill Avenue) shall take place only between the following hours:- 7am and 8pm Monday to Friday 7am and 4pm Saturday 8am and 12 noon Sunday and Public Holidays (ii) Vehicular gates shall be installed as soon as practicable between the Churchill Road entrance to the dock and loading dock areas 1 and 2. Those gates will be open only between the hours specified in (i) and will be closed at all other times. A sign will be placed on the gates to the following effect "The Franklins dock is open at the following times ONLY: Monday to Friday 7am to 8pm Saturday 7am to 4pm Sunday and Public Holidays 8am to 12 noon" (iii) The opening and closing of the vehicular gates shall be the responsibility of Franklins staff. (iv) A speed limit of 8kph shall be posted at and implemented inside the vehicular gates. (v) No staff parking to be permitted inside the vehicular gates at any time. (vi) No overnight truck parking to be permitted inside the vehicular gates. (vii) A roller shutter door is to be installed as soon as practical at the western entry end of loading dock no.2 and to be kept closed at all times outside the hours specified in (i). (viii) Colby Trolleys and Franklins shopping trolleys shall not be moved outside the roller shutter door at any time outside the hours specified in (i). (ix) No public address system to be used in the loading docks except for emergency fire evacuation. (x) A sign to the following effect shall be prominently displayed in the loading dock. 'This loading dock is within hearing of peoples homes. Please make as little noise as possible.' (xi) No use is to be made of the bale press in Docks 1 & 2 outside of the hours nominated in (i) unless the roller shutter door to that dock is closed. (xii) Franklins shall instruct all of its drivers and shall issue formal correspondence to all subcontracting firms or suppliers who are likely to make deliveries to Franklins' loading dock at Strathfield Plaza to observe the following: (a) The driver shall apply all possible skill and care when backing into the Franklins' loading dock, and during the subsequent departure from the Franklins' loading dock, to minimise the noise emission from the vehicle being driven. (b) The driver shall ensure that the reversing horn's supplementary attenuation switch with which the vehicle must be fitted, is activated before reversing the truck into the loading dock. The switch should be re-activated following departure. (c) The driver shall ensure that when alighting from the truck, when unloading the truck or when reloading the truck, that reasonable precautions are taken to minimise unnecessary noise emission. (d) The truck driver shall ensure that any radio, music system, or communication system is deactivated, or does not generate sound which may be audible at the adjacent residential premises. (e) The truck driver shall ensure that neither he, nor the people with whom he may need to liaise or work within the loading dock area, shout or generate other sources of noise which may be audible or disturbing for residential properties facing the loading dock, or located in the building immediately above the loading dock. (xiii) Franklins shall ensure that all drivers under its control, or drivers who work for sub-contractors or suppliers, who are instructed to make deliveries, or are likely to make such deliveries shall be provided with a copy of condition (xii) referred to above. (xiv) Franklins shall instruct its employees, contractors and/or agents to observe care in the use and control of equipment (including shopping trolleys) in the loading dock and access areas so as not to cause or allow to be caused any unreasonable noise during the hours of operation of the loading dock and access area." There will be no order as to costs. All the exhibits may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 42 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.