Land and Environment Court of New South Wales CITATION : Great Lakes Aggregates Pty Ltd v Great Lakes Council [2007] NSWLEC 793 APPLICANT Great Lakes Aggregates P/L PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 11239 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Concrete batching plant hours of operation, noise, traffic and local amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Great Lakes LEP DATES OF HEARING: 28, 29/08/07 & 28/09/07 EX TEMPORE JUDGMENT DATE : 28 September 2007 APPLICANT Mr. A Seton, solicitor of Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Mr R. Mallik, solicitor of Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 28 September 2007 11239 of 2006 Great Lakes Aggregates Pty Limited v Great Lakes Council JUDGMENT 1 This extempore judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Great Lakes Council, for a concrete batching plant at the site known as 107 Bullocky Way, Failford. 2 The application before the Court is for a concrete batching plant. It is noted that there is currently a quarry operation on the subject site, which has an approval dating from 2002. The quarry itself has been operating for some 100 years or thereabouts. 3 The quarry operation has a number of conditions of consent, including a requirement for monitoring and an environmental review to be carried out. The concrete batching plant is proposed as a complementary activity to the quarry activity. 4 The hours of operation for the quarry activities are 7.30 am until 5 pm, Monday to Friday, and Saturdays 8 until 3 pm. The applicant proposes operating hours for the concrete batching plant, as an operational start time of 7 am until 6 pm, Monday to Friday, and 7 am until 3 pm on Saturday. 5 The council contends that the hours of operation should be consistent with the quarry operations, and that is a 7.30 am start Monday to Friday, and an 8 am start on Saturdays. 6 The Court has the benefit of experts in these proceedings. On behalf of the applicant: Mr Hodges, an acoustic consultant, gave evidence to the Court, and Mr Bridges, the Court appointed expert, provided evidence on acoustic matters. The Court also has the benefit of hearing concurrent evidence and making further inquiries on the issue of noise. Today the Court has heard further evidence from Mr Bridges. 7 When the Court first met with the parties and heard from the experts, the acoustic experts were asked to do additional work to look at noise attenuation in terms of fencing for the proposed site activities. As such, Mr Bridges and Mr Hodges prepared a report to advise that noise attenuation could be achieved with an acoustic fence on top of the existing mound. That is, a total height of three metres for an acoustic fence, including mounding and a lapped fence, or a material that would provide for the same acoustic properties, whether that be a fibrous cement or other form of fencing, and this is detailed in their report. As such, the noise attenuation of a 3m fence would reduce the noise received on a number of the residential properties surrounding the subject site, such that the maximum would be 36 dBA as opposed to the previous estimate they gave of 39/ 40 dBA. 8 The subject site is within an area that has a number of rural residential properties surrounding it, and this can be seen on the aerial photograph. It is also noted that there is a residential development further down Bullocky Way, but the surrounding properties most affected by the operations of the concrete batching plant would be those that share a common boundary with the road reserve that adjoins the quarry; that is, the properties on Bullocky Way. 9 The Court met on site the first morning of the proceedings and heard from a number of resident objectors, including Ms Leonie Sorensen. She resides in a property on Bullocky Way, and she considers that the increased fumes, the sound of empty cement trucks, the increased traffic, the increased noise would lead to an impact on the ambience or the residential amenity enjoyed by the residents of the area. She expressed concern about increasing the operations from the site to provide for a concrete batching plant, and also noted that cars and trucks in the area do not stay within the speed limits. The sound from the proposed operation, she considered, would interfere with the residential amenity of the area. 10 Ms Christine Armstrong, of 189 Bullocky Way, considers that the proposed development would also interfere with the amenity of the area. Prior to the 2002 consent she was under the impression like many residents that the quarry operations would cease and is concerned about a further development of the site with a concrete batching plant and the impact on the future amenity of the Failford area. She also expressed concern about air pollution and diesel fumes. The queuing of trucks of a morning was also considered to be a concern prior to the opening of the concrete batching plant. 11 Mrs McGarry, of 137 Bullocky Way, expressed concern about the operation of a concrete batching plant in terms of the impact on the amenity of the area and the fact that the hours of operation are proposed to be earlier than the current quarry operations. She advised the Court their house has been built specifically towards the rear of their land to mitigate the noise from Bullocky Way itself, and therefore it is built in closer proximity to the boundary of the subject quarry/ concrete batching plant proposal. She is also concerned about the air particles and air quality in terms of the impact on their residential lifestyle, and diesel fumes. 12 The Court also heard from Dr McGarry, who is concerned about the amenity of the residential area and the quiet, peaceful environment currently enjoyed, and in particular he is concerned about the proposed earlier starting times for the concrete batching plant. He also expressed concern about the processing of the application and the fact that they did not have copies of the expert reports at the time the Court met on site. This was subsequently attended to. He also mentioned stress-related illnesses and the general quality of life being impacted by the proposal, and the erosion of the quality of life. 13 Mr John Cusack, of 94 Bullocky Way, near Highlands Estate, is concerned about the fact that the speed limits are not observed on the road and that the road does not have the capacity for the trucks that would be required for the concrete batching plant. 14 Mr Harold Huntingford, of 234 Bullocky Way, is concerned about the road and the state of disrepair of the road not being able to accommodate a concrete batching plant. 15 Also the Court heard on site from the Court appointed expert on air quality, Dr Kerry Holmes. She advised the Court that in her opinion the proposed development would not impact in a perceptible way on the air quality of the area. In particular she says: "On this basis, the additional dust due to the concrete batching plant is unlikely to result in any perceptible change in air quality in the area." 16 Dr Holmes concludes by saying: "In summary, while the proposal will result in some increase in air emissions, I do not consider that it would adversely affect air quality in the local area. While there has been no quantitative assessment of the air quality impacts on the Failford quarry or the concrete batching plant proposal, I have drawn from my experience in assessing other quarries, concrete batching plants and roadways to come to this conclusion." 17 She was also alerted to and was aware of a study that Dr McGarry referred her to and provided further expert advice to the Court, and in this regard while it is appreciated that some people are more sensitive to, say, diesel fumes, I am satisfied on the basis of the evidence to the Court that air quality would not warrant refusal of the development application. 18 The Court also heard from Mr Keating, the traffic engineer, and had the benefit of hearing from council's traffic engineer. They conferred and as a result the s 94 contributions that were in contention at the beginning of the proceedings have been resolved and the applicant has undertaken to do certain road improvements for the concrete batching plant operation, and these are contained in the conditions of consent. 19 Considerable time was spent on site looking at the road in terms of its capacity to provide access to the concrete batching plant and what impacts would be incurred. It is noted that a condition of consent also requires a contribution in terms of the tonnage of materials, as well for the general upkeep of roads within the Great Lakes area. In terms of the traffic impacts and the road improvements to be carried out, I am satisfied that traffic and road matters are not issues that would warrant refusal of the application. 20 The Court has been taken to the aims and objectives of the Great Lakes Local Environmental Plan, and I have considered the provisions of the LEP in my assessment. In particular, the objectives of the Rural 1(a) zone, in which the subject site is located. Objective (a): "to restrict development to those uses which are unlikely to prejudice in a significant manner the agricultural production potential of land within the zone." 21 It is noted that the subject site is class 5 agricultural land and it is already highly disturbed, and I am satisfied that objective is met. "(b) Generate significant additional traffic or create or increase a condition of ribbon development on any road relative to the capacity and safety of the road." 22 In terms of this objective, I am satisfied that the proposed development is within the capacity of the road system, with the conditions of consent proposed. "(c) Have an adverse impact on the area's water resources." 23 Once again, this is a disturbed site, and I am satisfied in terms of the proposed concrete batching plant that there will be no impact in this regard. "(d) Create unreasonable or uneconomic demands for the provision or extension of public amenities or services." 24 This is not a particularly relevant objective in terms of this development application, but the proposal is not antipathetic to this objective. The LEP requires that the zone objectives be considered in the assessment of a development application by virtue of cl 8. 25 The subject site is zoned to permit the proposed development, and it is appreciated that concrete batching plants and quarries must be given careful consideration, despite their permissibility, in particular when there are residential properties in the vicinity. That is, in this instance, rural residential properties that adjoin the subject site. 26 I am satisfied that with the conditions as agreed to between the parties, that the concrete batching plant will not unreasonably impact on the residential amenity of the adjoining properties. I say this with respect to the fact that the provision of a noise attenuation fence will, in many respects, improve the residential amenity for the immediate adjoining neighbours, and in this regard the acoustic fence will ameliorate the noise, not just in terms of the concrete batching plant but in terms of the quarry operations as well. 27 It could be seen on site that the greatest impact of the current and proposed operations is the noise from the trucks, and the provision of an attenuation fence would need to be a prerequisite to allow the concrete batching plant. The Court would not allow an exacerbation of the current noise from the activities of the quarry, and the quarry use will in fact be ameliorated by the noise attenuation fence now proposed. 28 It is a matter for the applicant as to what materials such a fence would be constructed of. Because at the end of the day the maximum dBA, as referred to in the joint experts' reports, must be complied with. Clearly the fence, irrespective of the materials it is constructed of, must be maintained for the life of the operation of the quarry and the concrete batching plant to ensure the noise criteria are not exceeded. 29 The issues in dispute at the end of the day relate to conditions, and the Court has had the benefit of hearing from the experts on the conditions and has also carefully considered all the evidence to the Court, including the residents' concerns and objections. 30 In the circumstances of the case and with the attenuation measure of the noise barrier, which will provide for greater overall amenity for the residential properties, I have determined the concrete batching plant should be approved subject to the following operating hours. In this regard, I refer to the provisions in the Industrial Noise Policy which determine daylight times for the purposes of calculating when activities should occur, and indeed this is a guideline and as such it's not a statutory matter. Nonetheless it is a guideline that is embraced consistently and has been embraced by the experts in terms of their noise assessment of the proposed activities. 31 For Monday to Friday 7 am to 6 pm, however, I consider that it is appropriate to impose the condition of the council that there be only three transit mixers that exit the site at that time; that is, between 7 and 7.30 am. The traffic is limited to the exiting of three transit mixers only. If in the future the applicant finds the need to increase the number of transit mixers, it would have to do so by way of an amendment to the application, and once again the amenity of the residential properties would have to be given focus in terms of a future application. In the circumstances, having regard to the evidence, having regard to the juxtaposition of the relative properties, the 7 am start is only allowed on the basis that there are three concrete mixers only that exit the site. 32 I have determined the hours of operation for Saturday, the Saturday morning start time is 7.30 am until 3 pm, given this is a weekend day and the surrounding properties. I know there is no distinction in the INP, but nonetheless in terms of ensuring amenity, a 7.30 am start, with the three transit mixers only allowed to exit the site between the hours of 7.30 and 8. 33 In terms of the other conditions, it is noted that there is to be independent noise monitoring, and there has been an agreement in terms of changes to that condition to ensure that the four properties identified, which are within the closest affectation of the subject site, are to be included for the purposes of noise monitoring. Noise monitoring is to look at cumulative impact of both the quarry and the concrete batching plant, and the noise monitoring shall take place three months after the of the concrete batching plant commences and then at twelve monthly intervals. 34 The reports are to be independent monitoring at the applicant's expense, and if in the future tone or impulsive noise becomes relevant, that is to also be factored in. 35 I note that there are also conditions agreed to between the parties with respect to: dust suppression; and a contribution by the quarry operator/ concrete batching plant to council of certain road base materials. These are also imposed in my determination. 36 With respect to the agreed general terms of approval, as such these will be amended according to my decision in terms of the operating hours for the proposal; that is, 7 am until 6 pm Monday to Friday, and 7.30 am until 3 pm on Saturday, and that will be reflected in the final conditions issued. 37 The other condition I impose is to allow the concrete transit mixers to return to the site beyond the operating hours, that is, up until 8 pm at night. This is because in my assessment the bringing onto the site of the transit mixers early of a morning would impact more on the amenity for local residents. The return to the site of the transit mixers up until a reasonable time, which would be a maximum of three movements, is considered appropriate in terms of the overall effective operation of the concrete batching plant and in terms of the amenity of the residential properties. 38 On the basis of my assessment of this matter, with the assistance of the experts I have decided the concrete batching plant be granted conditional approval. The Court also had the assistance of the council's officers' reports and Mr Grech for the applicant provided a planner's report. 39 Accordingly, on the basis of the Court's assessment, the formal orders of the Court are: 1. The appeal in respect of the property known as 107 Bullocky Way, Failford being Lot 1 DP 830075 is upheld. 2. The development application No. 827/2006 submitted to Great Lakes Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure 'A'. 3. The exhibits with the exception of Exhibits C, J, 16 and 17 are returned to the parties. ___________________ J S Murrell Commissioner of the Court ljr 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.