Aldi Stores (A Limited Partnership) v Coffs Harbour City Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Coffs Harbour Local Enviornment Plan 2000

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Pafburn v North Sydney Council [2005] NSWLEC 444

APPLICANT Mr P McEwen SC SOLICITOR Carroll & O'Dea Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10207 of 2010 Aldi Stores v Coffs Harbour City Council

JUDGMENT Background 1 This appeal was lodged against 2 conditions of consent imposed by council on a development consent for an Aldi store to be located on the north - eastern corner of Toormina Road & Minorie Drive at the Toormina shopping centre. 2 The appealed conditions are: Access & Services: 5. The following works and services being provided to serve the development with the works conforming with the standards and requirements set out;, in Council's Technical Guidelines for Subdivision and Development: i. Works within Toormina Road reserve to achieve a sight distance (1.2 metres to 1.2 agreed metres) of 92 metres at the intersection of Minorca Place for vehicles travelling north. ii. Concrete footpath (1.5 metre wide) in Toormina Road from the existing 1.5 metre wide path at Centro Toormina to the pedestrian entry to the development (existing footpath in this area is currently less than this width). These works are to be completed prior to occupation of the development and prior to release of any occupation certificate, unless other arrangements satisfactory to Council for their completion at some other time are made. No engineering works are to be undertaken until plans and specifications have been approved by Council. All work is to be at the developer's cost. Plans and specifications submitted later than six (6) months from the date of development approval shall comply with the Technical Guidelines for Subdivision and Development current at a date six (6) months prior to such submission .

8 Restricted Hours for Deliveries Deliveries to the development are only to occur during the following hours: - 6.00am - 10pm. No deliveries are to occur outside these hours . 3 The appeal commenced by way of a s34 Conference and after the site inspection by the respective experts, the parties agreed that the intent of this condition was satisfied. Accordingly the applicant considers it should be deleted and I accept this. 4 In the absence of any agreement to condition 8, the parties then consented to Hussey C determining this issue.

The evidence 5 Detailed evidence was presented by: · Mr C Foley; Council's manager health, · Mr D Borgeaud; Applicant's consulting acoustic engineer, · Mr J Kennedy; Aldi property director. · Mr G Campbell; Centro manager. 6 In addition to this, a number of objections were lodged and considered with the expert evidence and they concern: * likely noise amenity arising from night - time delivery trucks, * traffic safety risks at the Toormina Road and Minorie Drive intersection, * impact of additional traffic volumes and speed along Toormina Road, * noise and amenity impacts during construction. 7 Mr Kennedy says that Aldi cannot manage the logistical constraint on deliveries between 10pm and 6am because the new store will be serviced from Brisbane, which involves a 6 hour trip to Coffs Harbour. The commencement of this trip is restricted by the reception of the products at Brisbane, up until 6 pm. There is a highly regulated labour force with designated shifts commencing at 6 pm, which allows the trip to Coffs Harbour to start at about 6.30 - 7.00pm, Consequently the delivery trip would not be concluded by the designated 10.00pm limit. 8 However, in the circumstances where the designated Aldi delivery trucks have been acoustically assessed to comply with the local noise environment, then Aldi requests permission for 2 truck deliveries over the restricted 'late night - time period' because they will not cause undue noise disturbance.

9 The main concern expressed by Mr Foyle against the late night deliveries is that they would likely cause noise disamenity to the residents (No. 30) opposite the intersection in Toormina Road.

10 He acknowledged that whilst there are no specific council policies covering 'late night deliveries', it is the standard practice of council officers to restrict deliveries over this period. In support of this position he relies upon the provisions of: * NSWEPA "Environmental Criteria for Road Traffic Noise" (ECRTN), * NSWDOP "Development near rail corridors and any busy roads - interim guidelines" * NSW Industrial Noise Policy.

11 From The ECRTN, the stated objectives are: 1.3 Objectives of the Criteria' "The primary aims of this document are to: * refocus the approach to mitigating road traffic noise from relatively late in the road development process to a much earlier stage. This will allow land use planning and regulatory and policy decisions to be applied to avoid noise wherever possible, which is a less costly and more effective way to mitigate noise...'" "To control road traffic noise we need to * identify all the strategies that can be adopted to reduce traffic noise.-" "The approach must reflect the fact that, in addition to road design and development controls, a number of other strategies must be used to reduce the impact of traffic noise. They include: + implementing traffic management policies at local and regional levels + (such as the use of dedicated truck routes, enforcement of quiet zones, and restricted access in residential areas during sleeping hours)-" "This document provides a framework that guides the consideration and management of traffic noise issues associated with new building development near existing or new roads..."

12 Part 2 of the ERCTN deals with road traffic criteria and refers to the following table: Type of Development Criteria Day (7am - 10pm)dB(A) Night (10 pm - 7am) dB(A) Where Criteria are already exceeded 8. Land use developments with potential to create additional traffic on collector road L Aeq(1hr)60 Laeq(1hr)55 Where feasible and reasonable existing noise levels should be mitigated to meet the noise criteria. Examples of applicable strategies include appropriate location of private access roads; regulating times of use; using clustering; using 'quiet' vehicles; and using barriers and acoustic treatments. In all cases, traffic arising from the development should not lead to an increase in existing noise levels of more than 2 dB.

13 Accordingly, Mr Foyle says that as Toormina Road is classified as an 'Urban Collector Road' and it is a busy road where the Lmax (maximum night time noise level) is currently exceeded, then it is reasonable in the circumstances to regulate this noise as an option to avoid any further noise increases. He also expresses concern that about a possibility of 'noise creep' in the overall noise should the adjoining Centro Toormina three load dock operators also seek similar concessions for their loading docks in the future. 14 Mr Foyle says that other delivery options such as transfers at the existing Aldi or a possible limited extension of the delivery hours should be considered so that night-time noise is not increased. This would be consistent with the ECRTN provisions that: Where noise levels are already exceeded: As a general principle, where reduction of existing noise levels is possible, a reduction in line with the desirable noise criteria is desirable.

15 Against this, Mr Borgeaud says that due consideration should be given to the actual site assessments undertaken in May 2010, The approach for this assessment was apparently discussed initially with council officers where it was agreed that the appropriate parameters for comparison are: Lmax (representing maximum noise levels), Leq (representing 'average' noise levels).

16 The site most likely to be impacted is No 30 Toormina Road and this was specifically assessed resulting in: Table 1 Ambient Night Time Noise Levels, 10 to 17 May 2010

Time Period L ax L1 L eq L 90 Night 10pm - 6am 71 64 52 41 1. Levels have been averaged over the relevant time period. 2. L max is the maximum noise level indicated by a sound level meter when set to fast response over a time period. 3. L eq is the noise level with the same energy as the actual fluctuating noise level. 4. L 1 , L 90 are the noise levels exceeded for 1% and 90% of the time period respectively.

The measured noise levels in Table 1 are characteristic of a site with noise from heavy traffic giving relatively high noise levels during the night time periods. These relatively high noise levels make the site suitable for use as a commercial site. Attended noise monitoring undertaken on the site using the Rion NA-27 Sound Level Meter indicated vehicle pass-by levels ranging from 54 - 84dB(A) at the residences.

17 Mr Borgeaud says that the time trace (noise logging charts) for the 10pm - 6am period show a number of peaks, which confirm the regularity of traffic and other significant noise levels during the night time period. Interestingly, the increase in noise levels from around 4am onwards is caused by "birdsong", with traffic peaks interspersed. 18 Based on the ambient noise measurements, the relevant site specific noise criteria for transient noise sources at 30 Toormina Road are: L max 71 (night criteria) L eq 52 (night criteria). 19 From reference to ECRTN Part 2 Item 8, the night time criteria is 55dB(A). As the existing measured average Leq during the night period is 52 dB(A), Mr Borgeaud says that an Aldi truck would generate an Leq (1hr) of 45 - 47 dB(A) at the residences, which meets the ECRTN criteria. 20 In this regard, he notes that Item 8 states that where the criteria is already exceeded - where feasible and reasonable existing noise levels should be mitigated …In this case, he says that the Aldi trucks comprise "quiet" trucks and the drivers are trained to minimise noise at night. 21 Apart from the noise component caused by the trucks travelling along the roads, other concerns were expressed regarding noise intrusion from the reversing safety beepers. Apparently it is Aldi practice to disengage the beepers and control reversing other ways (CCTV). Insofar as the safety requirements indicate the need to use the beepers, Mr Borgeaud's further assessment is that based on a source level of 87 dB(A) 1m from the beeper, then allowing for dispersal over the 41m separation to the houses, the noise level would be in the order of 55dB(A), which complies with the Lmax 71 criterion. 22 Also, the Leq level with the beeper would be 50 -51 dB(A), which meets the 52 dB(A) criterion. However a tonal correction could apply by use of a 'duck quack beeper', which would minimise the effect. 23 The other relevant influence on the noise source concerns the design of the loading dock and effect of building shielding. This matter has been assessed by Mr Borgeaud, who says that the building will provide effective noise shielding during any night time operations.

Conclusions 24 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this application merits conditional consent. 25 The appeal concerned both Conditions 5 & 8. As stated previously the respective experts checked the relevant site distances at the intersection and are satisfied the intent of condition 5(i) is satisfied. Therefore it can be deleted. 26 With regard to the primary issue of night time deliveries, no compelling evidence was presented to the Court regarding any formal council policies restricting night time truck deliveries. It seems any assessments in this regard are on a merit basis. This is confirmed because the other Aldi store in north Coffs Harbour is subject to: 9 The maximum number of delivery semi trailers permitted to attend the Aldi tenacy during the hours of 10.00pm to 7.00am is not to exceed 3. During these times truck reverse beepers and refrigeration units are to be turned off whilst the vehicle is within the Park Beach Plaza property. 27 On merit then, I am satisfied to rely on the noise assessment undertaken by Mr Borgeaud, which was unchallenged. The results show that at the dwelling No 30 Toormina Road, the Lmax (averaged maximum level) is 71dB(A) and the Leq is 52 dB(A). This indicates that it is a relatively noisy night time environment. 28 In the absence of any specific local noise criterion, I accept that the application of the ECRTN provisions is appropriate in the circumstances. The evidence indicates to me that there was general agreement between Mr Foyle and Mr Borgeaud that the numeric 71dB(A) Lmax criterion is met. Insofar as the proposed additional 1 or 2 Aldi trucks will contribute to the noise environment, I am satisfied to rely on Mr Borgeaud's opinion that this transient truck noise (66dB(A)) at the residences will be within the maximum noise range and will not "add" to the maximum noise level, as suggested by Mr Foyle. 29 Insofar as I accept that the truck should comply with the noise criterion, I am however aware that other factors can influence the transmission of noise. In these circumstances it is appropriate to undertake a 12 month trial period to ensure that the night time truck delivery does actually comply with the criterion. This would enable assessment over all seasons and general weather conditions. 30 Importantly, it would allow assessment of any particular noise disturbance generated as a result of the trucks leaving the site via the at-grade intersection. 31 I have considered the submissions regarding precedential effect but do not consider it should be given significant weight. Submissions were made regarding the authority in Goldin & Anor v Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 [2002] NSWLEC 75 wherein Lloyd J examined this matter and said at para 28: . A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 32 Applying this authority to the subject matter, I am satisfied on the evidence that subject to satisfactory performance during the trial period, then a reasonable environmental outcome should be achieved. There is no queue of other similar applications. If however other operators seek similar allowances, they would be subject to merit assessment. 33 Submissions were also made in regard to the planning principle in Padburn v North Sydney Council [2005] NSWLEC 444 where Roseth SC said: Planning principle: criteria for assessing impact on neighbouring properties 26. The following questions are relevant to the assessment of impacts on neighbouring properties: + How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? + How necessary and/or reasonable is the proposal causing the impact? + How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? + Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? + Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 34 Adopting and applying these principles to the present case, it is apparent to me that the neighbouring properties are situated within a relatively noisy environment, particularly over the night time period. The allowance of a delivery truck in this period will generate noise that is within the averaged maximum noise level and should not materially reduce the amenity of the residential properties. In this regard, I also note the submissions that these properties are located on the busy road and near the shopping centre, which inevitably means they would most probably experience a reduced level of acoustic amenity when compared to a predominant residential precinct. 35 In summary then, I am satisfied that it is reasonable to vary Condition 8 to permit 1 delivery truck during the night time period from 10pm to 6am for a 12 month trial period. Disparate submissions were made regarding the amount of testing during this period and I consider it reasonable to fully assess this matter by way of 4 test periods over the 12 months, as specified by council. Also it is reasonable for the applicant to keep a complaints register during this period so that any legitimate complaints can be validated. 36 Insofar as Mr Foyle referenced the other control documents, I accept Mr Borgeaud's opinion that they have little relevance in the subject determination.

Court orders 37 The Court orders that: 1 The appeal is upheld. 2 Condition 5 and 8 of council's consent to DA 752/09 for an Aldi store at Toormina are varied in accordance with Annexure A. 3 The exhibits may be returned except for 9, 10, A, G and K.

          R Hussey
          Commissioner of the Court
          ljr

Annexure 'A' Variation of Conditions of Consent Aldi Stores (A Limited Partnership) v Coffs Harbour City Council

5 The following works and services being provided to serve the development with the works conforming with the standards and requirements set out in Council's Technical Guidelines for Subdivision and Development: I. Deleted II. Concrete footpath (1.5 metre wide) in Toormina Road from the existing 1.5 metre wide path at Centro Toormina to the pedestrian entry to the development (existing footpath in this area is currently less than this width). These works are to be completed prior to occupation of the development and prior to release of any occupation certificate , unless other arrangements satisfactory to Council for their completion at some other time are made.

No engineering works are to be undertaken until plans and specifications have been approved by Council.

Plans and specifications submitted later than six (6) months from the date of development approval shall comply with the Technical Guidelines for Subdivision and Development current at a date six (6) months prior to such submission; and

8 Restricted Hours for Deliveries For a period of 12 months from the date of issue of the Occupation Certificate the delivery by truck to the subject Aldi site shall be limited to 1 truck delivery between the hours of 12 midnight to 5.00 am.

Within that 12 month trial period, the applicant is to commission an independent noise consultant, agreed by Council's Manager of Health, who shall undertake noise monitoring of truck movements on and from the subject site, over the period midnight to 5.00am on a Sunday and Monday evening on at least 4 occasions not less than 2 months apart. The monitoring results are to be submitted to council within 14 days of each monitored event. The acoustic monitoring is to be done at a time and date without notice to the applicant or the council. All costs of the acoustic monitoring are to be borne by the applicant.

During the trial period, Aldi shall keep a log of the delivery truck movements within this period and also keep a complaints register noting any complaints and subsequent actions. This register shall be made available to council on request.

Prior to the completion of the trial period the noise monitoring report shall be submitted to council. In the event of this monitoring showing compliance with the criteria of (and not exceeding) the Lmax of 71dB(A) and Leq of 52dB(A), the constrain of this condition, that is, "1 delivery truck per midnight to 5.00am period" shall no longer apply and is replaced by a maximum of 2 delivery trucks during this period.

  R Hussey
  Commissioner of the Court
  td

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