Australian Roadbase Supplies Pty Ltd v Canterbury City Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Concrite Quarry Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97

DATES OF HEARING: 29/09/2004, 12/10/2004, 20/10/2004, 03-04/11/2004, 24/11/2004

APPLILCANT Mr P Tomasetti, barrister SOLICITORS Michell Sillar LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10513 of 2004 Australian Roadbase Supplies Pty Limited v Canterbury City Council

JUDGMENT 1 This judgment is for an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (The Act) against Canterbury City Council's refusal for an application to modify previous development consents for a landscape supplies and materials recycling operation granted in 1993 and 1997 respectively.

2 The subject site is known as Yards 7 and 8, 11B Harp Street, Campsie being Lot 3 in DP 270114. Yards 7 and 8 are part of a larger industrial subdivision served by a private road with shared access from Harp Street. This area is zoned 4(b), 'Light Industrial' under the Canterbury Planning Scheme.

3 Prior to the land being subdivided into a number of yards in 1993 the land was used for the purpose of a tip and the land is classified as 'unhealthy building land'. The subject yards 7 & 8 have a combined area of 7,700 sq m. They are irregular in shape and have a north western boundary of 30 m, a 17 and 25 m northern boundary, a 114 m north eastern boundary and a 60 m south eastern boundary and 142 m south western boundary. Figure 1 shows the site and surrounding industrial and residential areas.

4 While the topography of the subject yards is relatively flat they are 5 m above Harp Street and there is significant drop in level to the industrial units on the eastern boundary. The adjoining yards are used for the storage of building materials and waste recycling.

5 As can be seen from the aerial photograph at Fig.1 there are yards on the eastern the western sides of the internal road. The latter yards have a common rear boundary with the residential properties that have frontage to Chelmsford Street. These residential properties are about 50 to 60 m away from the subject site, yards 7 and 8. Located on these are a temporary demountable office with an amenities building, and material storage bins.

6 It is noted that there are Class 4 proceedings in this Court. However, the issue in these proceedings is whether the modifications to the development consent should be approved on their merits. The question of whether the modifications constitute the same development was heard in earlier separate proceedings. Commissioner Moore in determining this question noted in his judgment that:

Although there has been some passing mention of a possible triggering of a different zoning as a consequence of changes to the nature of the activities I've not considered it necessary to determine that at this stage of the proceedings. Although this was mentioned to me by Mr Jackson. He has not pressed it as a basis on which I should determine the preliminary question. Perhaps of greater significance is the fact that a document which was described as a location plan (for the purposes of enabling me to understand the present modification application) was tendered by Mr Johnson. This contained a number of differences when compared to the plan of the site that was incorporated in the 1997 consent as part of the environmental impact statement.

The present location plan shows materials processing and storage being undertaken over extensive area of the site significantly different from that contained in the consent plan. I have not dealt with that or considered that matter in these proceedings.

As I indicated to the parties in the course of the proceedings, they are either matters that would appropriately be pursued by the council in another class of the Court's jurisdiction or may well go to the question of whether or not the activities, in a merit assessment, warrant approval by the Court.

As a matter of fact, I am satisfied that it is a matter of very fine balance whether or not the totality of the essential nature of the future activities is substantially the same as the totality of the present ones. In reaching my conclusion I have been mindful that I need to have proper heed to a qualitative and quantitative evaluation of the present and the proposed. This means, that in the present context, the "what" and the "how".

Although there is a change in the rate at which the activities might be undertaken and there are some changes in the way the activities are to be undertaken. The overall result, if approved, would be a building materials recycling processing yard with an annual output of some 30,000 tonnes. This is the same as that approved pursuant to the present consent.

… I thus consider it appropriate that the modifications proposed are tested on their merits.

I therefore formally conclude that for the purposes of the proceedings continuing to the merits, the s 96 modification application does involve a development that is substantially the same as the development approved pursuant to the 1997 consent.

7 At the beginning of the proceedings before me Mr Tomasetti for the applicant handed up a site layout plan to assist in showing the proposed modifications in plan form. However, it had been disavowed in the proceedings before Commissioner Moore and it was subsequently not tendered or relied upon by the applicant in this appeal.

8 There was some confusion as to the precise nature of the modification application and I sought clarification of this, including a plan and a consolidated instrument of consent to show all the conditions with those marked that the applicant is seeking to amend from the 1993 and the 1997 consents. The latter consent refers to conditions of the former consent still applying. The conditions of the 1993 consent that became critical to these proceedings are conditions 10 and 11 that read as follows:

10. The maximum noise emission level from any activities conducted on the premises measured at the allotment boundaries are not to exceed the background levels as determined by council.
11. The maximum noise emission levels from any sound producing plant and equipment installed on the premises measured at the boundaries of the nearest residential development, are not to exceed background levels as determined by council.

9 There are two reasons why the matter was adjourned before me on the 29 September 2004, one that the applicant was to provide more details of the modification sought and how the consents previously issued should be modified. The other significant reason is that council (in refusing the application for the reason that it was "not substantially the same development") did not complete the necessary advertising period before the hearing commenced on 29 September. The Court expressed concern at hearing the merits appeal before the close of the advertising period. The parties also agreed that this requirement should be satisfied first. The adjournment therefore also allowed for completion of the advertising period and the results to be provided.

10 On the first day of this hearing the Court met the parties on-site and carried out a site inspection of the subject property and a number of residential properties of the objectors. A further site inspection was carried out on the morning of 3 November 2004 when the hearing re-commenced. The 'Pegson crusher' was not operating on the 29th September and this machine is to replace the 'Junior Recycler' referred to in the 1997 consent. The manufacturer's manual states that the 'Pegson Eurotrak' "has been designed exclusively as a self contained mobile unit for crushing materials in a wide range of quarry, demolition and recycling applications". However, as pointed out by Mr Tomasetti the change in the machine forms only part of the modification application and I must also consider the noise attenuation measures proposed in the modification application in my assessment.

11 Therefore what I saw and heard on the site does not reflect the modifications as proposed and I would fall into error if I assessed the application on this basis. I make this statement because much of the resident objection also went to the current operations and if the development at this point in time is not being carried out in accordance with the current approvals then that is a matter for separate proceedings and is not one that is relevant to my consideration of the s 96 modification application.

The Proposal 12 The applicant operates a recycling facility on the subject land and in general terms is seeking a s96 modification to the following development consents:

• Development consent No. 5282/90 issued in February 1993 to use the existing vacant land as nine open storage yards and one small factory unit (subject site is two of the nine yards);
• Development consent No. 6304/92 issued in February 1993. This consent is for the wholesale sales and storage of building and landscaping materials; and
• Development consent No. 8211/95 issued in November 1997. This reviewed the time limited approval for installation of a 'compact recycler' to recycle on-site concrete, bricks, tiles and similar materials. Approval was granted.

13 The applicant tendered a further amended s 96 modification application dated October 2004 and this described the consent to be modified as follows: A. Development Consent No. 8211/95 granted by Canterbury City Council on 24 November 1997 …

14 The applicant seeks the following modifications to development consent 8211/95 under s 96 of the Environmental Planning and Assessment Act 1979:

1. Storage Bins and Back Wall Height 1.1 Insert an additional condition in relation to the reconstruction and height of the boundary walls on the north western and south western perimeter of the subject site, as follows: 'The Applicant shall reconstruct the boundary walls on the south western and north western part of the subject site. The boundary walls on the south western and north western part of the subject site are to be increased to a height of 3.6 m.' 1.2 Insert an additional condition in relation to the reconstruction and height of the wing walls of the storage bins: 'Reconstruct the wing walls of the storage bins. The wing walls of the storage bins are to be increased to a height of 2.4 m.'
2. Stockpile Height 2.1 Modify condition 6 to remove the words" The stockpiles of material must not be higher than the open storage bins" and replace with: 'The height of the stockpiles within the site is not to exceed the height of the wing wall of the storage bins of 3. 6 m.

3. Remove References to Dustex Water Fog Nozzles 3.1 Modify condition 7 to remove the references to Dustex water fog nozzles and to refer to the Pegson Eurotrak and insert so as to read: 'The water spray nozzles for dust suppression attached to the Pegson Eurotrak must operate whenever the Pegson Eurotrak is in use.'
4. Operation of Pegson Eurotrak on site 4.1 Modify the consent to remove any references to junior compact recycler and insert an additional condition as follows to: 'A Pegs on Eurotrak may be operated on the subject site in lieu of the junior compact recycler previously referred to in the EIS; and shall be located generally, as indicated on the location plan, provided it is located at a distance of 7.5m from the boundary walls'. ' 5 Alternative Power Supplies 5.1 Insert a condition to allow for alternative power supplies on the site: The machinery to be operated on the subject site is able to be powered by a diesel generator, mains electricity and hydraulic power alone or in combination.'

6. Car Parking 6.1 Modify condition 3 to: Delete the words "eight parking spaces being provided within yards 7 & 8 to the satisfaction of Council" and replace with' Six (6) car parking spaces to be provided as marked on the location plan'
7. Noise 7.1 Insert a new noise condition: '(i) The measured LAeq 15 min noise emission levels from sound producing plant and equipment installed on the premises when measured at the boundary of the nearest residential development in accordance with the procedures set down in the NSW Industrial Noise Policy are not to exceed the environment background of 42 dB(A) by more than 5 dB. ii) All mobile earthmoving equipment should be fitted with residential class mufflers. iii) Absorptive type noise barriers, with Rw ratings of 35dB or greater, should be installed along the south west side of both the Pegson Eurotrak and screen no more than 1.5 m from the south west side face of each machine extending 1 m above the Pegson Eurotrak and screen, 1 m beyond both ends of the screen and 1 m beyond the discharge end of the Pegson Eurotrak. iv) Within two months of approval of the development a noise compliance check shall be carried out by a recognised acoustic consultant. The compliance check shall involve measurements of overall L, Aeq, 15min and LAmax, 15min noise levels at the nearest residential boundary during all relevant time periods. An acoustic report giving the results of the compliance check shall be prepared and submitted to Council. Where this report identifies exceedance of the noise limits further noise control measures shall be implemented to ensure compliance and then the re-measured. ' 7.2 Delete condition 11
8. Recycled Water System 8.1 Insert the following condition in relation to a recycled water system being operated on the subject site: 'A recycled water system is to be installed on the site. The holding tank for the recycled water system is to have a maximum holding capacity of 50,000 litres. The location of the holding tank is indicated on the location plan attached hereto. The recycled water system is to run from a three phase electric motor driven pump capable of delivering 700 litres of recycled water per minute to the subject site in cyclic rotation. The recycled water system is to draw water from the following: (a) run off water from within the subject site; (b) The storm water pit which is located on the south western corner of the subject site. The recycled water from the storm water pit is to be delivered by a submersible pump; and (c) The mains water supply to the subject site, as required. The run off water and storm water is to be filtered and returned to the storage tank as required via a float system within the main tank.
9. Dust Suppression System
10. 1 Modify condition 8 to: (i) A dust suppression sprinkler system shall be installed and connected to the recycled water system; (ii) Dust suppression meshing shall be installed along the eastern and southern boundaries of the subject site. The meshing shall be attached to telegraph poles located around these boundaries to a height of 4. 8 metres above natural ground level; (iii) Dust suppression nozzles to be installed on the top rail of the dust suppression meshing at 5 metre intervals and are to be controlled automatically with the aim of keeping the dust suppression meshing damp; and (iv) A wind speed and wind direction monitoring system and dust deposition gauge shall be installed on the subject site and used at all times. '
11. Landscaping 10.1 Insert the following condition in relation to landscaping: 'Landscaping is to be provided on the eastern, western and southern boundaries. The landscaping is to incorporate Australian native trees and shrubs endemic to the area. Plants will be selected if available from local sources of the following sizes of planting:
12. Tube stock.
13. Small plants of 150 mm pot size and a plant height of 300 mm.
14. Advance plants of 200 m pot size and a plant height of 300 mm to 1,OOO mm. Sufficient number of plants will be planted to ensure a sufficient screen is established between the subject property and neighbouring properties. Planting shalt take place in accordance with a landscaping plan to be approved by the Council. Landscaping shall be undertaken by a professional landscape company.

11. Location of Office Building, Toilets and Amenities Block 11.1 Insert the following condition in relation to the location of the office block: 'Demountable buildings to be used as an office, toilets and amenities building are to be located on the subject site in accordance with the location plan.
12. Excavator Insert the following condition in relation to the use of the Excavator: 'The Excavator shall only operate at ground level. '
13. Delete Condition 12

B. Development Consent No. 6304/92 granted by Canterbury City Council on 12 February 1993 for wholesale sales and storage of building and landscaping materials The Applicant seeks the following modification of DA No. 6304/92.

1. Conditions 10 and 11 deleted.

Issues 15 The council provided a Statement of Issues identifying five issues as follows:

1. Whether the proposal constitutes an "industry" which is a prohibited form of development in the 4(b) Light Industrial zone pursuant to Clause 22 of the Canterbury Planning Scheme Ordinance.

2. Whether the proposal complies with Council's Industrial Development Code (DCP No 21) in the following respects: (a) Clause 2(d), as the proposal will have a negative impact on adjacent residential areas. (b) Clause 13, as the proposal will create a pollution problem by the discharge of unacceptable levels of dust and noise emissions.
3. Whether the proposal will have an adverse impact on the amenity of the nearby residents and other occupants of land in terms of: (a) excessive noise; (b) vehicle generation and vehicle type; I (c) dust emissions; (d) visual amenity from the increase in the height of the material storage bins and materials within and the general stock pile height elsewhere on the site and the proposed dust suppression fencing and water storage tank.
4. Whether the application provides sufficient details/information to enable the consent authority to be satisfied that proposed modifications would not adversely impact upon the locality and the successful functioning of the site.
5. Issues raised by resident objectors: Particulars (a) Noise. (b) Dust. (c) Visual impacts.

16 In addition the Respondent also raises in these proceedings the question of whether the amended s 96 application of October 2004 is substantially the same development. This question, as noted above, was the subject of earlier separate proceedings but the respondent contends that the applicant's amended s96 application to these proceedings re-opens this issue. I am satisfied that the additional information and further details that has now been provided in the amended application do not change the fact that the proposed modification application is still substantially the same development and I can proceed to determine the application on its merits. The additional information has assisted in my merits assessment of the application.

Evidence 17 In this matter there are three Court appointed experts:

• Mr Matt Davies, a consultant with expertise in air quality:
• Mr Neil Kennan, a consultant town planner; and
• Mr Steven Cooper, an acoustic engineer consultant.

18 Mr Gregory Marston, an acoustic engineer consultant and Dr Nigel Holmes, an atmospheric physicist, also gave evidence to the Court.

19 The Court also heard from a number of resident objectors including:

• Ms Angela Harb of 34 & 36 Chelmsford Street, Belmore;
• Mr Ginap of 30 Chelmsford Street;
• Mr Subal Mani of 24 Chelmsford Street;
• Mr Stefanto of 17 Chelmsford Street;
• Mr Joseph Rizk of 20 Chelmsford Street;
• Mr Arthur Tsiougus of Chelmsford Street;
• Mr Laurie Colubriale of 10 Kingsgrove Road, Belmore.

20 The residents were concerned about the impacts of the proposal in terms of noise and dust pollution. The Court explained to the residents that in these proceedings the modifications to the previous consents are to assessed and that the current operations and whether they comply with the current consents is not a matter for me to determine.

21 The Court also heard from Mr Kiterouious who operates a business from Unit 8/21-23 Elizabeth Street, Campsie. He imports food and distributes it to his clients, which includes Qantas, and he is concerned about dust emissions interfering with his business that requires a high quality to be maintained. He said that the costs for him to relocate his business would be substantial.

Discussion of Evidence and Findings 22 At the beginning of the proceedings I raised with the parties the question of whether an Environmental Impact Statement (EIS) is required as the recycling materials use approved in 1997 is designated development. The parties agreed that an EIS is not required to modify consents for designated development. In the judgment of his Honour Lloyd J in the matter of Concrite Quarry Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97 his Honour stated at par 12: in my opinion subs 78A(8) does not apply in this case. The requirement for an EIS in the case of designated development applies only in the case of a development application. … This is an application for modification of an existing development consent. In my opinion s 78A has no application and neither does Sch 3. …

23 The development application in 1995 required an EIS because the use is designated development being located within 250 m of a Residential Zone (the requirement now is within 400 m). The proposal was for 30,000 tonnes and the designated development requirement is for more than 30,000 tonnes of material to be processed per annum. The applicant advises that it is not proposed to change the tonnage of material processed.

24 The 1997 consent issued by the council required:

1. The development being carried out substantially in accordance with the Environmental Impact Statement submitted to council in April 1996 except where amended by the conditions of consent."

25 At this point it is useful to go back to the EIS, a copy of which is contained in council's supplementary bundle. At p 9 the EIS states: The junior recycler will be located on site within a storage area surrounded on three sides by 200 mm thick concrete panel wall 2.24 m in height. The junior recycler is fully enclosed and electrically driven by design powered generator. Material is loaded into the junior recycler by a front end loader "from time to time the listed machinery will be replaced either permanently or temporarily (to provide for maintenance) by different but similar machinery. … The machinery consists of a front end loader, a tracked hydraulic excavator and the compact junior recycler.

26 Details of the machinery are provided in Table 5 and it is noted that the noise level for the junior recycler "typical at 7 m is 72 dB(A)." The measures to control /minimise noise included: The junior recycler to be located within a storage bay to minimise noise emission."

27 In the justification for the proposal it is sated that: The proposed development is a small scale, low intensity operation with a minimum of on-site activities and is a slight expansion of the existing development. …The effect on the local noise environment is minor and the noise control measures proposed are more than adequate to maintain the existing acoustic environment.

28 Page 43 of the EIS states that: The geotechnical investigations have confirmed the presence of organic matter within the fill below a depth of about 2 m … and have also confirmed the presence of methane on the site.

These investigations reinforce the notifications of the site as 'unhealthy building land'. … Elevated or high level methane were recorded in bores 2, 3 and 5 indicating decomposition of organic matter within the land fill below a depth of 2 m. Methane is heavier than air and will displace oxygen. In confined unventilated spaces this could lead both to a fire or explosion hazard and asphyxiation. With the existing and proposed development, in both cases and open yard type of operation, the potential for methane accumulation is low. The effects of methane are minimised as in the conditions of the building consent for the land, by buildings and plant being located on piles/piers above the ground surface. The compact junior recycler is mounted above the ground with free ventilation access all round. It is recommended that the diesel generator to power the recycler be mounted some 500 mm above the ground to ensure adequate ventilation. Mounting plant and buildings above ground level provides for ventilation and prevents the formation of pockets of methane.

29 Appendix 7 to the EIS contained an acoustical impact statement prepared by Rodney Stevens and Associates, Acoustic Consultant. The introduction contains the following: This report has been prepared to determine the impact of a new plant item, a junior compact recycler, in respect of its impact on the surrounding residential areas.

This report will show that the operation of the compact recycler will be at the existing background noise level at any residential boundary.

30 The acoustic report quotes the New South Wales Environmental Protection Authority, Environmental Noise Control Manual as follows: at a residential boundary, noise from the source under consideration usually should not exceed background noise levels by more than 5dB(A). In addition, tonal or impulsive noise results in the appropriate noise level design goal being set to the background noise level.

The ground noise survey carried out and to ensure the accuracy of the survey results the noise at the residential areas surrounding the operation was statistically calculated using the Environmental Noise Model (ENM), a noise prediction model originally written by the State Pollution Commission and subsequently commercially developed.

31 The report notes that the Environmental Noise Control Manual: is fully recognised and regarded as the Industries Standard … The model can then be run to provide predicted noise level surrounding the noise sources.

32 The council officer's report of 1997 on the application for the junior recycler stated: "the subject proposal is to supplement the existing approved development of wholesaling and storage of building and landscaping materials. The report concluded that: "the proposed development is a small scale, low intensity operation and is not a significant intensification of the existing development. … provided all measures are undertaken the proposed development would satisfy the definition of a light industry under the CPSO and is therefore permissible with approval".

33 The definition of 'light industry' in the Canterbury Planning Scheme Ordinance means "an industry, in which the processes carried on or the transportation involved or the machinery or materials used, do not interfere unreasonably with the amenity of the neighbourhood".

34 RSA Acoustics provided a certificate of compliance to the EPA approval to install the junior compact recycler. The certificate was signed by Mr Rodney Stevens and states: The results taken over two days shows that there was no measurable difference in noise level at the residential boundary with the 'portaplant junior compact recycler' in full operation or … not operating. During the survey period with the … recycler operating it was not possible to measure its noise level above the noise of the surrounding environment. Noise measurements on the adjacent industrial boundary at the distance of one metre gave a maximum LA10 (15 minute) OF 58Db(a). This level complies with the industrial boundary criteria. … it was not possible to measure the 45 dB(A) residential level as stated in the EPA approval due to the lowest measured LA90 over both 12 hour period being 48.6 dB(A). A calculation using the maximum industrial boundary level of 58dB(A) at 1 m and a distance to the residences of 60 m gave a computed residential boundary level of below the requirement of 45 dB(A).. It is my expert opinion that the operation of the 'portaplant junior compact recycler' is within the criteria of the EPA Approval No. 002715.

The original approval by council for the 'junior compact recycler' was for a 12 month trial period and the applicant then sought to continue the operation and council granted approval 20 November 1997 attaching the same conditions.

Acoustic Issues 35 The issue of noise assessment and measures to ameliorate noise from the operation of the proposed machinery on the subject site is the major issue in the proceedings. Mr Cooper, the Court appointed expert provided reports on the issue of noise including the ameliorative measures.

36 Mr Cooper's 1st report of September 2004 states that: The operations that occur on the site … appear to be predominantly associated with the recycling facility where building waste is brought to site, crushed and graded into various sizes for subsequent resale. The operations that occur on the subject site whilst identified as a recycling facility could also be considered in the general concept to be a crushing tent, not too dissimilar to that, that would appear in a small quarry … The statement of basic facts from council that is the s 96 modification did not have an acoustic report accompanying that application. It is only since these proceedings that the acoustic report has been provided (dated 30 August 2004) setting out potential noise emission from the site. … As to the practicability of noise control measures to achieve the EPA targets I consider the controls should have a higher degree of attenuation to account for the variation in crushing in the emission level. I have observed other recycling sites. I consider it could be possible to achieve compliance with the suggested EPA intrusive target. As to achieving the council noise criteria there would need to be substantial modification of the proposed noise controls that may not be practicable in terms of the degree of attenuation so required. … Furthermore based on the limited information provided by the applicant's acoustic report I cannot see how the subject application can achieve the council noise limit. … The imposition of not exceeding the background contained in Development Consent 6304/92 issued for the subject site is significantly more stringent than the general Leq (15 minutes) criterion of background plus 5 dB(A) utilised by the EPA. The basis as to why the council have nominated a stringent noise goal is not contained in the documentation I have been provided. However, I assume the basis of the noise carnage would be due to the type of noise generated by the facility and accumulative noise from other nearby industry. Where the noise is not constant or contains tonal or impulsive characteristics one normally receives a penalty adjustment to account for such audible characteristics. My monitoring of the premises reveal large variations in the noise emitted from the premises that would require an adjustment … Where there are a number of industrial sites in close proximity to residential premises it is not unreasonable in terms of acoustic design terms to require noise emission from a site to be less than the general criterion, as one would take into account accumulative impact of the other industrial sites. To apply background plus 5 dB(A) to existing would result in a cumulative increase in noise above recommended levels. This progressive increase has previously been identified as a creeping background affect … Based on the absence of detail noise calculation/diagrams identifying the sound propagation path to the ground level and first floor receiver location (as a result of the noise control) I am not persuaded that the current application can achieve the council's noise level. For the Court to be aware of the visual and acoustic impact of the required noise controls a design of the controls must be provided to the Court.

37 Mr Cooper in his conclusion of his first report states: The proposal for the recycling facility at the subject site as described in the RSA Acoustic Report could with additional noise attenuation works achieve compliance with the Leq (15 minutes) goal of background plus 5dB(A). However, the nature of the current character of the noise does in my opinion require a penalty to the noise goal of at lease 5 dB(A), i.e. a design goal on the Leq (15 minutes basis) of background on any residential receiver location. This Leq design goal (old background) would not be achieved by the proposal that is before the Court and therefore would have to be amended. The noise limit currently imposed by the council and expressed in terms of the maximum level from the site shall not exceed the background level. Based on the RSA Acoustics Report, this would require a further attenuation for the dual crusher of not less than 16 dB(A), that is, a total attenuation of 26 dB(A) to that current maximum noise emitted from the site. Such a degree of attenuation would be very difficult to achieve and I consider would be impracticable for the subject site. However, if the applicant wish to pursue the current application then I recommend the Court be provided a supplementary Acoustic Report setting out the noise control measures to achieve compliance with the council noise limit and be provided a set of drawings - plans showing the consequences of such controls. I consider the supplementary Acoustic Report must provide detailed calculations and diagram showing the relative position of the equipment and the receiver locations used for the supplementary assessment. … … If the Court was to approve the development, I recommend that a condition requiring an independent compliance test be carried out.

38 Mr Cooper prepared a supplementary report of November 2004 wherein he notes the applicant had not provided such a report for him to review. He did note that there had been a request from the applicant to modify the condition to replace the 'junior compact recycler' with a 'Pegson Eurotrak'. Mr Cooper also notes that the applicant proposed a condition for noise seeking to impose the generalised intrusive noise goal of background plus 5dB(A) when assessed as an Leq level over 15 minutes. He notes that there was no recognition of the need for adjustment to take account of the character of the noise emission and he states that the condition proposed by the applicant is some 12-15 dB(A) less stringent than the current council condition and does not address the cumulative impact of other industries in the area. He comments that "background plus 5 is appropriate where only one site impacts upon residential premises. However, where there are a number of noise generating activities this leads to a creeping background affect." In this regard he states: If one considers the possibility of only three sites influencing a residential boundary, then each site should be set at background so that the cumulative affect does not exceed background plus 5dB(A). … If the noise was free from tonal or impulsive characteristics (bangs that are currently clearly audible) then the concept of a design goal of background would be appropriate. With impulsive characteristics present then I consider 5dB(A) below the background is appropriate as a Leq (15 minutes) goal. However, this could still give rise to maximum levels up to 5dB(A) above the background.

39 Mr Cooper comments on the conditions of the previous consent. With respect to Condition 3 of 6304/92 this requires no disturbance to the amenity of adjoining occupations. Mr Cooper is of the opinion that: If one adopts the EPA Industrial Noise Policy as proposed by the applicant as a basis for assessment then from table 2.1 there should be a noise goal of 70 dB(A) at the site boundary from all industrial noise sources in the area. If one considered the adjacent site to the north is a source of noise emission as suggested during the Court view then the limit for the subject site (at the boundary) should be no more than 65 dB(A). This agrees with the level nominated in the EIS.

40 Mr Cooper is of the opinion that Condition 11 should also not be deleted as "this appears to be based on the EPA procedure in table 20-1 of the Environmental Noise Control manual to address the creeping background affect … . The creeping background affect for the entire industrial area is significant in terms of noise planning and therefore such an approach is relevant in this case".

41 With respect to the frameless acoustic enclosures recommended by the applicant's expert, Mr Cooper is of the opinion that: The practicality of such enclosures with respect to the subject application is not evident by any drawings or identification of the proposed use for such enclosures … the absence of acoustical data to identify the nature and physical location of the noise source, its relation to the site and residential boundaries does not permit me to evaluate the effectiveness of the use of acoustic screens or enclosures.

42 On behalf of the applicant Mr Tomasetti submitted that Mr Cooper's assessment of the application for modification shifted from the position of the proposal being satisfactory, subject to conditions, to Mr Cooper providing a far less favourable position. However, it is evident from the above quotes of Mr Cooper's first report that he raises a number of concerns and the need for additional information.

43 Mr Tomasetti sought the leave of the Court for the applicant's expert Mr Marston to give evidence to the Court. The Court granted leave to provide the applicant with every opportunity to present evidence on noise and respond to the Court appointed expert's statements. While Mr Marston's Acoustic Noise Assessment dated 30 August 2004 did not accompany the development application when it was submitted to council, it formed part of the applicant's bundle (Exhibit C) allowed into evidence. And his further submission to the Court dated 18 November 2004 was also admitted into evidence as Exhibit M where he states: The most important issue in this application is to identify an appropriate and reasonable (noise) goal for the development, as modified. The next step is to satisfy the Court that there are practical means by which the goal can be met … The original noise goal placed on site by the council … was that the maximum noise levels from the site should not exceed the background noise levels. This requirement is not a workable criteria, indeed in my view such a criterion is unreasonable and could not be complied with, nor even could have been complied with on this site. Such a condition would not be formulated by a person or a body versed in acoustic engineering. The background noise level in any area may change. Although the noise output may remain constant, background can vary over time. …Since this development was approved the Environment Protection Authority has developed the Industrial Noise Policy (INP). This policy is now the standard current guide to assessing and controlling noise generated by industry in New South Wales.

I do not understand why Mr Cooper has sought to qualify his earlier opinion. In any event if the development as modified does not achieve compliance with the goal recommended by me then the development will have to cease operation until such time as it can. I am confident that the development can comply… My calculations indicate that the current operating noise levels from the Pegson Crusher would be an Lamax noise level of 70dB(A) or less with a Laeq noise level of 62dB(A) or less,when measured at the nearest residential boundary, without the benefit of acoustic screening… The current operating noise levels from the Pegson Crusher calculated at 7 m is a Laeq noise level of 85dB(A) and a Lamax noise level of 94dB(A). These levels are significantly attenuated by the noise controls , which I recommend.

44 Mr Marston's approach is that an appropriate noise level should be set and that there be monitoring of the operations of the site, and if compliance is not achieved then modifications would need to be made to the noise barriers and attenuation measures.

45 Mr Tomasetti submitted that the applicant felt prejudiced by the Court appointed experts evidence and as such I gave Mr Tomasetti the opportunity to call Mr Marston to elicit evidence in response to Mr Cooper. Furthermore, I allowed into evidence Mr Marston's submission to the Court (Exhibit M) and I also gave Mr Tomasetti the opportunity to ask further questions of both Mr Marston and Mr Cooper. His response was that he required no further evidence from Mr Marston and that Mr Cooper displayed inappropriate behaviour and a perception of bias and the Court should give no weight to his evidence.

46 The Court decided that it had sufficient information and material to assess the issue of acoustics with all the evidence that had been tendered to the Court. And in fairness to the applicant the Court provided every opportunity during the proceedings for the applicant to respond to the Court appointed expert's evidence.

47 I accept Mr Tomasetti's submission that Mr Cooper commented on the current operation of the site in his assessment as not complying with the current consents. However, in my assessment of the package of modifications for noise I have also considered the applicant's proposed amended noise conditions. This process was assisted when the applicant provided a set of conditions to accompany the application for modification.

48 Unfortunately during the proceedings there was considerable time taken up with attempts to challenge, one way or another, the evidence or credibility of the acoustic experts. Mr Marston was given the opportunity to respond to Mr Cooper's evidence and explain his position even though at times he appeared in his responses to be non specific. Nevertheless I have carefully assessed the evidence of both experts in this matter.

49 In my assessment of the application to modify the development I have carefully considered all the evidence on acoustics and this includes: the feasibility and reasonableness of the proposed noise attenuation measures in the modification application; the EIS and Mr Steven's appendix 7 for the 1997 consent; RSA's compliance certificate; and the Industrial Noise Policy.

50 As I stated earlier I am fully aware of the fact that I must assess the amended modification application, not the current operation of the site, and not whether the modifications would comply with the current consents. Clearly part of the assessment for the Court is whether the current conditions should be modified if the merits of the application would warrant same.

51 There are fundamental differences in the approaches of the acoustic experts. Mr Marston on the one hand considers that the Industrial Noise Policy (INP) criterion of background plus 5 dB(A) at the nearest residential boundary should replace the condition in the current approval that calls for no additional noise above the background. He is of the opinion the appropriate noise level should be firstly determined. Mr Marston is of the view that the 'Pegson Crusher' and other equipment is capable of modification, and furthermore, if the noise attenuation measures are inadequate then further modifications could be required or the activity would cease.

52 In the circumstances of this case I do not accept reliance on retrofitting/further modification following monitoring for the reason this would provide no certainty in the planning process and begs the question or need to firstly submit an application and secondly to properly assess same, and places unreasonable demands on enforcing compliance. It would be inappropriate for the Court to allow modification applications where there is no certainty as to the various noise levels generated by machinery proposed to replace machinery identified in the designated development consent whether one modifies the criterion of background or plus 5dB(A). Furthermore I am not persuaded by the applicant's evidence that there is not a need to add 5dB(A) for impulsive noises or to have regard to the background creep factor.

53 Mr Marston is of the opinion that the Industrial Noise Policy (INP) published by the Environment Protection Authority in January 2000 contains the relevant criteria that should be used and referred to in the proposed conditions to be modified.

54 It is noted in the INP the responsibility for applying the policy lies with:

• the land use planner through taking account of likely impacts at an early stage in the planning process so that incompatible developments are appropriately located, also in recognising the importance of maintaining separation distances between industry and residence. In locating potentially noisy developments it is essential to recognise that mitigation of the affects of noisy activities once they are established will be limited by costs and design factors.
• The land use managers and regulators
• The noise source proponent and manager.

55 The policy is specifically aimed at assessing noise from industrial noise sources scheduled under the new Protection of the Environment Operations Act 1997. It goes on to state: Local Government is an independent regulator for noise under the legislation, and thus has discretion in dealing with noise within its area of responsibility. The policy is designed for large and complex industrial sources and specifies substantial monitoring and assessment procedures that may not always be applicable to the types of sources councils need to address. However, local government may find the policy helpful in carrying out its land use planning responsibilities.

56 In respect of the principles underlying the noise criteria the INP states that: These are best regarded as planning tools, they are not mandatory and an application for a noise producing development is not determined purely on the basis of compliance or otherwise with the noise criteria.

57 The INP states that: Background noise levels need to be determined before intrusive noise can be assessed. The background noise levels to be measured are those that are present at the time of the noise assessment and without the subject development operating. Hence for the assessment of modifications to an existing development, the noise from the existing development should be excluded from background noise measurements.

58 The INP provides two methods of determining background noise: the long term method to be used at the planning and approval stage and the short term method for compliance assessment purposes. The long term method is designed to ensure that the criterion for intrusive noise will be achieved for at least 90% of the time periods over which a noise reactions may occur (taken to be periods of 15 minutes).

59 The INP goes on to say: Where an industry in an industrial estate wishes to extend its operations, the measured background noise level may include the general home of industries nearby, but should not include any noise from the site itself - or noise from any intrusive sources nearby that could affect the LA90, 15 minutes value.

60 The INP also sets out modifying factor corrections. It was agreed between Mr Cooper and Mr Marston that no correction is required for 'tonal' noise. However, Mr Cooper considers 5dB(A) should be added to the predicted noise emission level to account for the 'impulsive' noise from the subject site. Impulsive noise is defined as having a high peak of short duration or a sequence of such peaks.

61 The INP states that modifying factors are to be applied to the noise from the source measured/predicted at the receiver and before comparison with the criteria. For the intrusiveness factor, the INP provides for a criterion value of the 'rating ground level' plus 5dB(A). The rating background level (RBL) is the overall single background level representing each assessment period over the whole monitoring period. The long term background noise measurement procedure should be used during the planning and the consents stage for development that have potential to cause significant noise emissions. The INP provides examples of development that may present a high risk of noise impact and this includes crushing and grinding works. The policy also sets out the reporting procedures for the long- term methods of measuring the final RBL value.

62 It is not apparent from the evidence of the applicant that the procedures for this type of reporting were carried out or with any rigour to provide the Court with the necessary level of confidence that would provide certainty in the assessment process. The acoustic evidence on behalf of the applicant is discursive and non specific. For example Mr Marston did not know if the Pegson was operating when measuring the background noise level. Furthermore, while on the one hand seeking to rely on the INP and adopt certain criteria, on the other hand procedures and other factors to this case such as: the long term method of measuring background noise; impulsive noise; the creep factor and cumulative impacts are either not addressed, dismissed or not given real proper and genuine consideration.

63 In light of the above I cannot accept the submission made on behalf of the applicant that the INP criterion (background plus 5dB(A) is intended to apply to all industry in NSW. I must have regard to a holistic reading of the document and clearly one must have regard to the context of the development, including its juxtaposition with more sensitive landuses, in particular residential areas. To allow a cumulative increase in noise from a number of industrial uses located in close proximity to existing residential areas cannot be accepted as good planning practice. Therefore I do not accept Mr Marston's methodology and the proposal to modify the noise conditions does not have merit in the circumstances of this case.

64 When questioned about the details of the screen noise barriers, Mr Marston informed the Court that it was not his job to design the acoustic barrier but rather to recommend a system of noise attenuation. I am not satisfied with the details provided in the development application or Mr Marston's further report; or his evidence to the Court that there is sufficient detail to achieve the necessary attenuation. In Mr Marston's acoustic noise assessment of August 2004 to support the development application he recommends the following: The major noise sources on the crusher are the intake hopper, the crushing chamber, the diesel engine and the discharge vibrating screen. Intake impact noise can be reduced by external damping on the intake hopper.

The noise emissions from the crusher has to be reduced by 10dB(A). A portable noise barrier can be cantilevered off the south western side of the crusher The barrier would extend 1 m above the height of the crusher and 1 m beyond the discharge end of the crusher.

The barrier would angle into the intake hopper of the crusher. This area would need to be strengthened to take the occasional impact of the excavator bucket during hopper loading. The barrier would be cantilevered about 1.5 m off the face of the crusher to allow access between the crusher and the barrier for access and maintenance. The barriers can be constructed from prefabricated bolt together absorptive barrier panels … an absorptive barrier of this type should provide a noise reduction of about 15 dB(A). Increasing the height of the concrete barrier by 1 panel height will only provide 2 to 3 dB noise reduction to the residences.

65 Mr Marston in his summary recommends:

1. The Komatsu WA 250 Front End Loader should be fitted with a residential class muffler to further reduce its noise emissions.

2. The Sumitomo SH 220 Excavator should be fitted with a residential class muffler to further reduce its noise emissions.

3. The crusher intake hopper noise emissions can be reduced by the installation of external damping materials to the external surfaces of the intake hopper.

4. A portable noise barrier should be installed that can be cantilevered off the south- western side of the crusher.

5. The concrete barrier on the south- western boundary should be extended to the entrance gate to increase the barrier "coverage" of the central part of the site.

66 With respect to a difference of 2 dB(A) between Mr Cooper's lower background noise level and Mr Marston's, Mr Marston commented that the noise controls he has recommended are more than sufficient to allow for the variation. Mr Marston considers that the noise generated from the 'Pegson crusher' would appear to be almost the same as that generated by the 'junior recycler' in the previous consent. However, from the evidence the Pegson is noisier than the junior recycler at 7m, 85dB(A) and 72 dB(A) respectively.

67 Mr Marston does not consider it necessary to impose a 5 dB(A) penalty for impulsive noise whereas Mr Cooper considered this adjustment should be made given the character of the noise generated. Mr Marston based this on his experience and told the Court impulsive noise was a matter of professional experience to assess such as metal to metal contact of a short sharp impulsive nature would warrant a penalty and he commented that "but here I propose means to moderate this to such an extent and it is not necessary".

68 Mr Marston was asked whether he had had regard to the metal to metal rods in the crusher in terms of his noise assessment and he responded that in his experience reinforcing bars do not generate significant noise and they are a minor noise source that do not warrant comment because the rods are separated out of the concrete and stockpiled by an operator. However, he was not aware of the practice of the activity whereby the metal rods are thrown on the back of the truck. Nonetheless he considered this not to be a significant noise source compared to the major noise source on site. To my mind this demonstrates a lack of regard to details and the operation of the subject site.

69 In response to the fact the 'junior recycler' satisfied the previous Conditions 10 and 11 of the 1997 consent and a subsequent compliance report indicated that the operation achieved the EPA noise criteria, Mr Marston's response was that this when the background noise level was much higher. For the current modification application before the Court Mr Marston indicated that it would be preferable to measure the background noise without the Pegson operating, however, this was not undertaken in the noise readings that formed the basis of his report.

70 Mr Marston informed the Court that the increased height of the stockpile wall would have a minimal acoustic effect and only reduce the noise by 1 to 2 dB and that raising the height of this wall was for additional storage not acoustic purposes and a matter for the applicant.

71 Mr Marston in response to questions from the Court as to where or when he previously had designed or recommended that an acoustic barrier be designed for a crusher, Mr Marston said he had not recommended a portable acoustic barrier for a crusher or similar machinery before. And he had not carried out verification of attenuation measures on screen barriers or crushers or similar machinery operating elsewhere.

72 When the Court questioned Mr Marston about the manufacturer's specification for the frameless acoustic screen enclosures and how they would be supported. Mr Marston responded that there could be a floor rail but he envisaged this to be in the detail engineering design and when the panels are assembled a roof rail could hold the panels together for lateral support by an attachment from the sides of the Pegson. He said the Pegson is about 3½ m high and the barrier would be 4½ m in height but he was unaware of the length of the Pegson and therefore the required length of the acoustic barrier he was recommending. However, in response to Mr Tomasetti he said that modules of the acoustic screen can be added and that a compliance check would be required which could lead to an adjustment to the acoustic barrier and if there is no compliance then the crusher cannot operate.

73 Mr Marston said that he had suggested two proprietary systems of acoustic panels but either could be used and when questioned by Mr Tomasetti as to whether the system would be standing in mid air, Mr Marston responded that it would be resting on the ground supported laterally from the Pegson and the same system could be used for the sieve.

74 I note in Mr Marston's acoustic noise assessment report of August 2004 that he refers to a portable noise barrier that can be cantilevered off the crusher and he further comments that "the barrier would be cantilevered about 1.5 m off the face of the crusher to allow access between the crusher and the barrier for access and maintenance". Similarly in his recommendations he states: "a portable noise barrier should be installed and cantilevered off the south western side of the crusher." The Macquarie Dictionary definition of cantilever includes: "1. mach. - a free part of any horizontal member projecting beyond a support; 2. Civil Engin. either of two bracket like arms projecting towards each other from opposite banks or piers… and archit - an extended bracket supporting a balcony cornice or the like." The concept of cantilevering the acoustic barrier as set out in Mr Marston's written report does not appear to encompass the concept of the barrier resting on the ground or roof rails holding the panels together.

75 For the Court to have a reasonable degree of confidence in the proposed noise controls being effective, in particular having regard to the noise attenuation required for the proposed application, that is some 14 dB(A), requires a high probability or likelihood that the measures recommended for noise attenuation would be functional effective with a tested design and implementation. In the circumstances of this case where the proposal is to modify a consent for designated development and where 'light industry' is only permissible by virtue of the fact that residential amenity is maintained, it would be inappropriate to allow the modifications to the consent.

76 Based on the evidence I am not satisfied that Mr Marston's recommendations for noise attenuation will provide the necessary certainty to warrant approval of the modification for the Pegson to replace the junior recycler. In circumstances where the issue of noise is not central to defining or characterising the activity, that is, whether it be a light industry or prohibited in the zone, then it may be appropriate for a condition of consent to refer to general amelioration measures that have not been specifically designed and detailed for a site if it can be demonstrated in the application the specific attenuation can be achieved. However, in this case not only has it not been previously demonstrated as to the effectiveness of the proposed cantilevered/laterally supported and/or resting on the ground acoustic barriers, but the application for modification does not provide any specific design details for the acoustic barriers. The onus is on the applicant to satisfy the Court that the modifications will achieve the necessary noise amelioration to ensure residential amenity is not unreasonably adversely impacted.

77 While an Environmental Impact Statement is not required for a modification to designated development at the same time it is clear from the 1997 consent and the EIS that accompanied the recycling operation that strict controls were put in place to ensure that the activity complied with the definition of 'light industry'. The development was designated development because it is within 250 m (now 400 m) of a residential zone. This alerts one to the need for care in assessing development applications and applications for modification. Clearly the latter can lead to development by creep and the impacts of such modifications need to be carefully assessed. In this case the use is not only designated development but the use must also continue to satisfy the definition of 'light industry' in terms of impacts on the surrounding area and I am not satisfied that the modifications would mean the use is permissible.

78 As pointed out by the applicant's counsel the purpose of these proceedings is not to assess or decide whether the existing activity on the land should continue or cease. Similarly it can be said the Court's determination of this s 96 application by refusal of the significant elements would still allow the use to continue to operate under the existing consents.

79 Relevant matters for my assessment of the modification application include reports on previous consents; the EIS and the acoustic report that accompanied the designated development application, and the set of conditions to the original consent. These provide background, circumstances and the context of the existing consents approving the 'light industrial use'. Mr Steven's report in the EIS states that there will be no increase in the background noise at the boundary of the residential properties and it was on this basis that the consent in 1997 was granted after a trial period that included certification of the noise levels.

80 In this merit appeal my finding on the noise conditions is that they should not be amended. Even if I was minded to accept Mr Marston's position, which I am not, of background plus five I am still not satisfied that the proposal warrants approval. The Court as consent authority must be satisfied that the degree or extent of the impacts must be able to be predicted with adequate certainty as carried out in the 1996 EIS Appendix 7. I am not satisfied that the noise amelioration measures proposed of module barriers for both the Pegson Eurotrak and the screen (sieve) would provide the necessary attenuation. I do not accept the submission made on behalf of the applicant that if they are not effective then modifications would be required. I accept that it may not be Mr Marston's job to design the barriers but at the same time this issue was flagged in the first report of the Court appointed expert.

81 Furthermore it would be inappropriate for the Court to grant approval to the modification in circumstances where the Court is not satisfied that other conditions of the existing consents could not be complied with. This includes in the 1997 consent condition 1 requiring the development to comply with the EIS and condition 17 that states: "all activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general by the emission of noise" etc. It was submitted on behalf of the applicant that this condition is an assurance and constraint on the operation of the premises that must be complied with even with the different machinery as proposed. However, to my mind the applicant has not satisfied the Court that this condition could be complied by the Pegson Eurotrak and the proposed noise barriers and other modifications proposed and the onus is on the applicant in seeking a modification to demonstrate that the changes sought would allow the use to operate consistent with all the conditions of consent that affect the land.

82 In my assessment it is relevant to have regard to the consents which are currently operational and this includes the consent that references the EIS prepared in 1996. The applicant contends that the conditions for noise not to exceed the background level are inappropriate and inequitable for today. The submission was also made on behalf of the applicant that the conditions were imposed by someone without the relevant acoustic noise expertise. While it is unknown as to who may have drafted the noise conditions of the previous consent at the same time the Acoustical Impact Statement contained within the EIS concluded that "there will be no noise impact on the surrounding residential areas". Furthermore RSA provided certification to the EPA with respect to the level of noise emitted.

Dust Suppression and Sprinkler System 83 Mr Davies said that there would not be the pollution caused by fine dust particles, that is less than 10 microgram, that would have health consequences. He said this is not to say that dust would not have an impact on the surrounding residential area but it is unlikely that there would be a health issue, although an assessment of a number of industrial sites that may contribute to fine air particles exceeding the 50 microgram criteria was not carried out. However, with respect to this site, the experts are in agreement that with the imposition of conditions for a sprinkler system then it could operate without significant impacts.

84 Mr Davies, however, did express concern to the Court in his oral evidence about extreme weather conditions. That is, in extremely dry windy conditions where the volume of water required to be applied across the entire site equates to some 43 litres per minute to be used to manage the impact. Mr Davies expressed concerns about the long term sustainability of using large quantities of water from main supplied water for industrial purposes such as dust suppression.

85 It is noted that the site currently has an exemption from water restrictions issued by Sydney Water and Mr Tomasetti submitted that if such an exemption does not continue into the future then the operation would have to cease and the Court should be satisfied in this regard. The proposed sprinkler system requires a holding tank of 30,000 litres of water and in extreme weather conditions this quantity of water would be used in 23 hours. Although this can be replenished from the main water supply with the exemption from Sydney Water in terms of my assessment under the Environmental Planning and Assessment Act, I must have regard to the objects of the Act in s 5 and this includes to encourage:

(i) The proper management, development and conservation of natural and artificial resources, including … water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) The promotion and co-ordination of the orderly and economic use and development of land; and (vii) Ecologically sustainable development.

86 The location of the activity with an interface to a residential zone and the definition of industrial activities requiring no impact on the amenity of the residential area must be considered in this application for modification. I consider that it would be short sighted of the Court to permit the modification to install the proposed sprinkler system having regard to the extremely large volume of water required to allow the activity to co-exist to maintain residential amenity in terms of dust suppression. To allow the sprinkler system would be antipathetic to the principles of ecologically sustainable development and not in the public interest in terms of s 97C(1)(e). The water supply for Sydney is a matter of public interest now and into the future and to allow a modification to an existing consent that requires such high volumes of water as identified by the experts in the design of a sprinkler system to maintain the adjoining residential amenity would not be in the public interest.

87 Counsel for the applicant submitted that the sprinkler system could only improve the dust situation for the local residents. And while one could not cavil with this submission, nonetheless the use of a limited resource in such large quantities because of the proximity of a residential area must be assessed having regard to ESD principles.

Other modifications 88 The application primarily fails on the grounds that: the proposed replacement machinery (Pegson Eurotrak) and the proposed noise attenuation measures are not acceptable in my assessment; and the conditions relating to noise should not be amended in the circumstances.

89 Counsel for the applicant requested that I consider each of the modifications separately and I provide comments below to assist the applicant. However, the fundamental elements do not warrant approval of the application and in the circumstances of this case the whole of the application is dismissed as it would be inappropriate in the overall context of the modifications to approve minor amendments, such as landscaping. Having regard to this and my assessment above on the more significant modifications sought, nonetheless, my comments on other modifications are as follows.

90 The applicant seeks to increase the storage bin and back wall heights and this would provide for greater storage of materials on the site. I note the applicant does not intend to increase the annual amount of material processed, that is 30,000 tonnes per annum as identified in the original Environmental Impact Statement for the 1997 consent. The boundary walls on the south western and north western part of the site are proposed to be increased from 3.6 m to 4.8 m and the wing walls of the storage bin to be increased from 2.4 m to 3.6 m. The applicant has also requested that the stockpile height, as contained in the current Condition 6, be amended (from "the stockpiles of material must not be higher than the open storage bin and replaced") to "the height of the stockpiles within the site is not to exceed the height of the wing wall of the storage bins of 3.6 m. In my assessment this modification should not be allowed given that the 'Pegson' with a greater output is not allowed and the water sprinkler system as proposed is not approved. It follows that to allow an increase of the stockpile heights without the sprinkler system could lead to adverse impacts for the nearby residential precinct and other dust sensitive uses that may be found in the light industrial area from time to time.

91 The modification sought to the conditions concerning the power supply there is no objection to in principle but given upgrading or replacement of the machinery is refused then this matter does should not be amended at this time.

92 The modification to Condition 3 to delete reference to 8 car parking spaces and in its place allow for 6 car parking would not appear to give rise to adverse impacts or concerns for the operation of the use as a 'light industry'.

93 The applicant's request to modify the existing Conditions 10 and 11 in consent No. 6304/92 relating to the noise level as measured at the nearest residential boundary is not approved for the reasons given above. Clearly as an approved designated development where the type of machinery is specified it would be inappropriate to modify this condition in the absence of specifications as to the noise attenuation measures on any replacement machinery.

94 The sprinkler watering system proposed, (with a maximum holding capacity of 50,000 litres with connection to the main supply and the collection of site run off and stormwater water) is not supported for the reasons I have given above. In particular it is contrary to the Act's object of ESD and is not in the public interest. It also follows that the dust suppression system as proposed is not supported.

95 The modifications for landscaping of the site and the modification for the relocation of the demountable buildings are minor matters in the context of the development and these modifications do not raise issues of concern.

96 The final modification proposed by the applicant to restrict the use of the excavator to operate at ground level only, no objection is raised to this and this could be of some benefit in mitigating some impacts but it is not necessary to impose at this stage given use of the Pegson is not approved.

Conclusion 97 In my assessment of the s96 application, I must be satisfied that the conditions, existing and proposed are generally capable of being implemented, operational and self-regulating in the long term. I am not satisfied that the noise amelioration measures proposed of module barriers for both the Pegson Eurotrak and the screen would reduce to an acceptable level the noise received at the residential boundaries. I have arrived at this conclusion comparing the noise power level of the 'junior recycler' compared to the 'Pegson Eurotrak' and the lack of certainty in the extent of the attenuation of the noise barriers. This has been the critical issue in my assessment as to why the application for modification must fail.

98 I do not accept that if the application complies with the EP&A Regulations that this should be sufficient to satisfy a consent authority, especially in circumstances such as this where the definition of 'light industry' is dependent upon the processes involved, including the machinery and materials, to not interfere unreasonably with the amenity of the neighbourhood. I am not satisfied that the modifications would satisfy this.

99 Once a modification is granted and compliance cannot be achieved it is not in the public interest to simply say that an operation will have to cease. It would be short sighted of the Court to adopt this approach that would then require significant community resources to enforce. It was also submitted on behalf of the applicant that the current business was purchased and the applicant is attempting to rectify operating problems. However, this is not a relevant matter in my consideration of the application for modification as consents 'run with the land'.

100 While the issue of costs in these proceedings was raised by the respondent it was agreed that this matter should be reserved.

101 On the basis of my merits assessment and my findings on the proposed modifications, the orders of the Court are as follows:

1. The appeal under s 96(6) of the Act to modify the consents issued by Canterbury City Council on 24 November 1997 and 12 February 1993 in respect of the premises known as Yards 7 and 8, 11B Harp Street, Campsie, is dismissed.

2. The modifications as identified in 'the further amended s 96 modification application dated October 2004' are determined by the refusal of consent.

J S Murrell Commissioner of the Court rjs/ljr

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