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[2012] NSWLEC 1284
appellant. The appeal was upheld; the Court modified the conditions of consent for the DFE development at 20 Scrivener Street, Warwick Farm as set out in Attachment B, and ordered the return of exhibits...
The Court allowed Benclutch's appeal to modify freight operation hours at an industrial warehouse whose only access crosses a nearby low-density residential 'horse area'. Hussey C found the application was for the same development, accepted the NSW Road Noise Policy as the correct noise standard and that the small number of additional early-morning trucks could be managed by a Traffic Management Plan, speed limits, an acoustic barrier and monitoring. Approval was granted on conditions including a 12-month trial to test enforceability and impacts.
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Benclutch Pty Limited sought to modify an existing consent for a Direct Freight Express (DFE) warehouse and distribution centre at 20 Scrivener Street, Warwick Farm. The original consent (2007) included Condition 24 limiting hours of operation to 6:00 am–9:30 pm Monday to Friday (see [2]). The s 96 application sought to extend operating hours to allow early morning heavy-vehicle arrivals and some evening departures. The applicant revised the original 24/7 proposal to a specific timetable (Table 1) of limited heavy vehicle and workforce vehicle movements across weekdays and weekends (see [3] and Table 1).
No linked legislation citations have been extracted yet.
Liverpool City Council refused the s 96 modification, principally on two grounds: (I) potential traffic safety conflicts between heavy vehicles and equine activities in the adjacent low-density residential 'horse area' that the truck route traverses, and (II) acoustic concerns about sleep disturbance caused by early-morning heavy vehicles passing through that residential area (see [4], [13]–[14], [19]). The site’s only access for heavy vehicles is via a designated B-Double route which passes through Manning Street in the 'horse area' (see [13], [16], [46]).
The Land and Environment Court hearing considered traffic and acoustic expert evidence from both sides. The applicant’s traffic engineer (Mr Coady) argued the proposal redistributed existing truck movements over a longer period and would add only a small number of trucks in the early morning (eight additional heavy vehicles in the 3:30–6:00 am period), and that a Traffic Management Plan (TMP) could manage interactions with horse activity (see [15], [20]–[23], [51]). The council’s traffic engineer (Mr Wiafe) emphasised safety and enforceability concerns, including existing vehicle speeds on Manning Street (see [19], [24]).
On acoustics, experts differed on the correct assessment protocol. The applicant’s acoustic consultant (Dr Tonin) used the NSW Road Noise Policy (RNP) and modelled predicted increases; after adjustments the model showed increases less than +2 dB(A) in relevant periods, which Dr Tonin characterised as minor (see [27]–[39]). Council’s consultant (Mr Cooper) queried the applicability of the RNP and raised reservations about the modelling and the ECRTN/ENMM differences (see [33]–[36]).
Commissioner Hussey accepted that the s 96 application related to substantially the same development and that the matter was properly notified (see [42]–[43]). He accepted the RNP as the appropriate control for road traffic noise assessment (see [58]) and found the increases shown in the modelling were below the +2 dB(A) relative increase criterion in the RNP and therefore acceptable subject to mitigation. He also accepted the on-balance view that the modest number of additional heavy vehicles in the early morning could be managed through a TMP, speed limits, driver training and monitoring; and noted the B-Double route had been approved without time restrictions (see [46]–[56]).
Given remaining uncertainties about enforceability and modelling, Hussey C allowed the appeal subject to conditions including a 12-month trial of the extended early morning hours, required TMP measures (including a 30 kph speed limit for DFE trucks in extended hours and a prohibition on compression braking/air horns), the erection of a 2.5 m acoustic barrier to address internal noise, and a noise and traffic monitoring programme to assess impacts at the end of the trial period (see [56], [58]–[63], [69] I–V). The appeal was upheld and conditions modified as in Attachment B (Court orders).
Three legal and factual pillars underpinned the decision.
s 96 threshold and factual proximity to existing consent: The Court first addressed the jurisdictional threshold under s 96: whether the modification related to substantially the same development. Hussey C was satisfied it did, which allowed merits consideration to proceed (see [42]–[43]). That initial step was decisive because, absent satisfaction, the application could not be entertained.
Traffic context and B-Double route approval: The site’s only access is via a designated B-Double route that had been approved without temporal restrictions following referral to the council and RTA (see [16], [46]). Hussey C treated that approval as a material planning circumstance entitling some discretion to vary DCP operating-hour controls, particularly because the industrial precinct already attracted a substantial range of heavy vehicles and there were existing early-morning heavy vehicle movements (see [44]–[46], [48]). The practical effect was to shift the analysis from a categorical application of DCP night-time restrictions to a contextual balancing exercise about whether the proposed redistribution would materially increase safety risks.
Noise framework and quantification under RNP: On acoustic impacts, the Court selected the NSW Road Noise Policy as the appropriate framework (see [58]) and applied its assessment approach, including the relative increase criterion that an increase up to +2 dB(A) is a minor impact (see [60]). Dr Tonin’s modelling, adjusted conservatively after joint conferral, indicated increases below +2 dB(A) at relevant measurement points; the Court accepted those results together with proposed mitigation measures (see [38]–[39], [61]–[63]). The Court explicitly relied on the RNP’s qualitative and quantitative approach to determine that noise/sleep disturbance would not be unacceptably increased.
Combined with traffic evidence (horse crossing surveys, police records showing no incidents, and the practical ability for most equine users to use alternative routes), the Court concluded the small number of additional heavy vehicles could be safely integrated with equine activity if strict operational controls and monitoring were imposed (see [20]–[26], [51]–[56]).
Given remaining uncertainties about modelling precision and the enforceability of TMP measures, the Court exercised a precautionary but permissive approach: allow the modification subject to a 12-month trial and robust monitoring so council could reassess the real-world operation and consider strategic planning measures such as a Local Area Traffic Management (LATM) plan (see [56], [62], [65]–[70]).
Before: The governing environmental instruments included the Liverpool LEP 2008 and Liverpool DCP 2008, which set zone objectives and a prescriptive hours-of-operation control intended to limit industrial activity impacting nearby residential amenity (see [8]–[11], DCP extracts at [11]). There was, as the Court noted, a presumption in the DCP that restrictive operating hours should apply (7 am–6 pm weekdays; limited Saturdays; no Sundays).
After: The decision clarifies that a court may vary DCP quantitative controls where other planning approvals and the on-the-ground context (including an unrestricted B-Double route, existing industrial intensity and expert evidence) justify discretion and where modifications can meet the LEP/DCP objectives through conditions and monitoring. The judgment establishes that the RNP is the applicable framework for assessing road-traffic noise impacts in NSW planning modifications post-1 July 2011. It confirms that the RNP relative +2 dB(A) criterion is central to assessing whether moderate increases are acceptable.
The practical outcome is permission to vary DCP operating hours in the right factual settings, with conditions to manage uncertainty, rather than a categorical defence of DCP numeric hour restrictions.
Paragraph 42: "As this application is for a s 96 modification ... I am firstly satisfied that the application relates to substantially the same development." Plain English: The Court decided the proposed changes were just a change to how the approved use operates, not a new kind of development, so the modification process under s 96 is available.
Paragraph 46: "I note the DCP's restriction ... However, council has relaxed this in the current circumstances by allowing the evening operations until 9.30 pm." Plain English: Even though the DCP sets strict hours, council already allowed some flexibility before, which matters when assessing whether further flexibility is reasonable.
Paragraph 58–60: "I am satisfied that the appropriate controls are contained in the RNP ... an increase of up to +2 dB represents a minor impact ..." Plain English: The Court chose the NSW Road Noise Policy to decide whether extra truck noise is acceptable and accepted that small increases (up to 2 dB) are effectively negligible to most people.
Paragraph 55: "The redistributed heavy vehicles of 8 vehicles ... should not result in unacceptable traffic safety risks ... and can be reasonably managed by way of conditions." Plain English: The Court thought eight extra trucks in the early morning could be handled safely if the operator follows strict management rules.
Paragraph 69 (I–V): The Court's conditions package, Plain English: The Court authorised a 12-month trial, limited evening extension to 10 pm, delayed early-morning starts to 4 am, required monitoring and allowed council time to pursue broader traffic planning measures.
This decision is most applicable where the following factual mix exists:
Under that pattern the Court is likely to consider granting a conditional modification rather than a categorical refusal.
This judgment is a principal judgment on its facts; its core points are factual and administrative in nature: acceptance of the RNP for road traffic noise post-2011; an approach to s 96 modifications where factual context and prior route approvals carry weight; and use of trial conditions and monitoring where uncertainties remain. Later courts will treat the decision as persuasive on:
Practitioners should expect subsequent decisions to apply these principles only where the factual matrix (modest additional movements, existing heavy-vehicle route, credible noise modelling under RNP) is comparable.
Takeaway for practitioners: Where seeking or opposing a s 96 hours modification, prepare robust traffic counts, horse/other user surveys, and RNP-based acoustic modelling; propose clear, enforceable TMP measures and monitoring regimes; and be ready to justify or challenge the planning significance of any prior heavy-vehicle route approvals.
Mr A Pickles (Bar) (Respondent) Solicitors Blackstone Waterhouse Lawyers (Applicant)
Sparke Helmore (Respondent) File Number(s): 10022 of 2012
Background 1This appeal is against council's refusal of a s 96 application to modify the approved hours of operation for the Direct Freight Express (DFE) warehousing and distribution development located at 20 Scrivener Street, Warwick Farm. Whilst the subject property is situated within the Warwick Farm industrial area, all vehicular access is through the adjoining lowdensity residential area containing equine activities. 2The development consent was granted on 13 August 2007 and included the following Condition 24: HOURS OF OPERATION 24. The hours of operation must be limited to 6:00am until 9:30pm Monday to Friday. 3In order to facilitate a more orderly receipt and distribution of goods at the warehouse, the applicant initially sort to extend the operating hours to a 24/7 basis. However after consideration of the issues raised by council, the modification now proposes the following traffic arrangements: Table 1 WEEKDAYS 3.30am -6.00am Semi Trailers & B Doubles Maximum of 8 trucks arriving per weekday Workforce Cars 42 cars arriving with the majority (30 cars) between 5am - 6am, and 8 cars departing the premises per weekday 9.30pm-10.30pm Semi Trailers & B Doubles Maximum of 4 trucks departing per weekday Workforce Cars 2 cars departing the premises per weekday SATURDAY 3.30am-6.00am Semi Trailers & B Doubles Maximum of 12 trucks arriving per Saturday, and 2 trucks departing the premises per Saturday. 7.00am - Midday Workforce Cars 12 cars departing per Saturday. Workforce Cars 6 cars arriving at the premises and 6 cars departing per Saturday. SUNDAY 7.00am-9.00am Semi Trailers & B Doubles 1 truck arriving at the premises per Sunday. Workforce Cars 1 car departing the premises per Sunday. 4.00pm - 7.00pm Semi Trailers & B Doubles A maximum of 1 truck arriving at the premises and 3 trucks departing the premises per Sunday. Workforce Cars 3 cars arriving and 2 cars departing the premises per Sunday.
4Consequently the amended contentions concern: I.Potential traffic conflicts between heavy vehicles and equine activities in the extended, early morning period, and II.Acoustic issues concerning sleep disturbance arising from the early morning passage of heavy vehicles through the adjacent residential area.
The site 5The subject site is described as Lot 201 in DP 801262. It is irregular in shape, with a combined street frontage to Scrivener Street of 269 m and an area of approximately 7.416 ha. 6The site is located within the general Warwick Farm industrial area and is currently occupied by a warehouse and distribution centre. The site adjoins Rosedale Park to the north and various industrial uses to the south and west. Residential development exists to the north west of the site. To the east lies the Liverpool Sewerage Treatment Plant. 7There is one route for vehicle access this industrial area, which is via Priddle Street, Manning Street, Munday Street and to a lesser extent Warwick Street. The area details are shown on the plan at Attachment 'A'.
Planning controls 8The main control is the Liverpool LEP 2008, under which the site is zoned IN1 - General Industrial and the subject development is permissible according to the Part 2 provisions. Relevantly, the zone objectives include:
The evidence 12Detailed evidence in response to the contentions was presented by:
Traffic issues 13The main traffic issue concerns the potential safety risks arising from truck movements in the extended early morning operating hours. This arises because the heavy vehicle route to the industrial area passes through the low-density residential area where there are a considerable number of horse training establishments (horse area). The horse training involves access to the nearby Warwick Farm racecourse via part of the transport route. However there is a tunnel located at Hope Street, which provides the main access under Governor Macquarie Drive into the racetrack. 14The main safety risk concerns possible conflicts between handlers taking horses to the track when they use and cross the existing roads, particularly Manning Street, which would be subject to a redistribution of large vehicle movements from 3:30 am. However, the majority of land occupiers in this 'horse area' have alternative routes to and from the racecourse, thereby avoiding this risk. 15With respect to the modified truck movements, Mr Coady says that this involves a redistribution of the existing truck movements by spreading them over a longer period so that the number of trucks generated in the extended early morning hours is relatively minor as shown in Table 1. He says this has benefits because it avoids congestion in the existing approved hours after 6:00 am.
B Double Route 16Insofar as there was discussion about the route for the applicant's heavy vehicles, it is shown on Attachment A and it is a collector road and designated B-Double route. Following the discussion by the traffic experts about limitations on this designated route, its use appears to be unrestricted. The applicant applied for B-Double access in December 2006 and the RTA referred it to the council for consideration according to its letter marked as received on 20 February 2007. 17Consequently, the B-Double route was approved on an unrestricted basis as shown in the B Double travel restrictions (Exhibit J). But having considered the contents of this exhibit, I note that there is a significant number of restrictions on other B-Double routes, including time restrictions as shown in the following examples: B-DOUBLE TRAVEL RESTRICTIONS No: DESCRIPTION B105 No travel permitted 6:00-10:00am and 3:00-7:00pm on Epping Railway Bridge. B107 Access only from Hume Hwy. Deliveries where possible outside 8:00-9.30am and 2:30-4:00pm, Mon-Fri. B109 No travel permitted 7:00-10:00am and 3:00-7:00pm on weekdays. Left turn only to and from Victoria Rd. B111 No travel permitted 7:00-9:00am and 3:00-5:00pm on school days. B112 No travel permitted 7:00-9:00am and 3:00-5:00pm on school days. Trailers must not be left more than 6 hours at the uncoupling area in the Public Reserve. B113 No travel permitted 7:00-9:00am and 4:00-6:00pm. B115 No travel permitted 7:30-8:30am and 3:30-5:00pm on school days. B116 No travel permitted 7:30-8:30am and 4:00-5:00pm on school days. B118 No travel permitted 7:30-9:00am and 3:00-4:30pm on school days. B119 No travel permitted 7:30-9:00am and 3:00-5:00pm. A maximum speed limit of 80km/h applies. B120 No travel permitted 7:30-9:00am and 3:30-5:00pm on school days. B121 No access permitted during School Bus times. Maximum speed limit of 80km/h applies.
18Accordingly, Mr Coady says that the route assessment process would have considered the existence and any constraints of the existing horse training area and as it did not include time restrictions, then the restrictive hours of operation contained within the DCP can reasonably be varied in the circumstances of this application. 19Against this, Mr Wiafe says that the extended hours should not be allowed as they would be inconsistent with the zone objective "To minimise adverse effect of industry on other land uses". He says the potential conflicts are road safety concerns between horses and vehicular traffic in the early morning and also sleep disturbance impacts. He therefore considers that the extended hours should not be permitted so as to achieve the intent of the LEP and DCP objectives. 20In response to these concerns both Mr Coady and Mr Wiafe undertook separate road use surveys to assess horse crossings and vehicle counts, which are compiled in Table 2: TABLE 2 JC Survey CW Report Crossing Manning St Approach/Depart Manning St 3-4am 4 4 0 4-5am 24 30 11 5-6am 26 39 44 6-7am 34 43 41
21The associated horse crossing diagrams for Friday 6 July 2012 show that in the early morning period there is a concentration of horse crossings in Manning Street opposite National Street and a secondary crossing opposite the Southern Laneway as follows: 3 - 4am 4 - 5am 5 - 6am 6 - 7am Eastbound National Street 0 16 12 11 Southern Lane 4 5 5 1 Westbound National Street 0 0 6 17 Southern Lane 0 3 3 5
22From the surveys, Mr Coady says that the level of horse activity is relatively small in the Manning Street area during the early morning period. He therefore considers that this level of activity can be adequately and safely integrated with the relatively low level of redistributed large delivery vehicles movements by way of a Traffic Management Plan (TMP). 23The proposed TMP is contained in Exhibit F and it is based on the fact that the proposed early morning deliveries will only be by DFE trucks with company drivers. Accordingly driver performance can be monitored and sanctions undertaken against drivers who disregard the TMP provisions. The TMP provisions include:
Sleep disturbance 27In considering the sleep disturbance impacts, the experts initially disagreed on the appropriate evaluation criterion. Dr Tonin says that the applicable criterion arising from vehicular traffic is the EPA's Road Noise Policy (RNP), which came into effect on 1 July 2011. He says that under the RNP the access road to the site would be classified as sub-arterial. 28Accordingly, the applicable assessment criteria for existing residences affected by additional traffic as stated in Table 3 in the RNP, is a level of 60 LAeq (15 hour) for 7 am-10 pm and a level of 55 LAeq (9hr) for 10 pm-7 am. These levels are measured outside a residential premise at 1 m from the facade and 1.5 m from the floor (including the upper level of a two storey residence). 29Clause 3.4.1 states that where the existing traffic noise levels are above the assessment criteria then a range of feasible and reasonable mitigation measures should be considered. The RNP recommends that any increase in the total traffic noise level on existing roads generated by land use developments should be limited to 2 dB above that of the corresponding 'no build option'. 30In respect of sleep disturbance, the RNP confirmed that while there is ongoing review of this issue, nevertheless the main noise characteristics that influence sleep disturbance are the number of noisy events heard distinctly above the background level, the emergence of these events and the highest noise level. 31The RNP conclusion is that:
Internal noise 40A separate issue concerned the noise impacts from the site operations between 5am to 6am. Dr Tonin assessed this matter and recommended the erection of a specified 2.5 m high acoustic barrier along the northern boundary to ensure that noise levels comply with the EPA's Industrial Noise Policy. 41Mr Cooper agrees with this solution as a satisfactory outcome. I rely on the experts' agreement on this matter that it can be satisfactorily dealt with by way of conditions.
Conclusion 42For the determination of this matter I have considered the evidence, submissions and undertaken a view. As this application is for a s 96 modification of Condition 24 of an existing consent, I am firstly satisfied that the application relates to substantially the same development. 43Next, I am satisfied that the modification application has been notified and I have considered the various objections in conjunction with the contentions raised by council. 44In terms of the merits of the application, I think it important that the context of the development be given appropriate weight. The warehouse and distribution centre has been operating in the industrial area since its approval in 2007. Its only access is via the designated B-Double route that traverses the low-density residential area (horse area) via Manning Street. 45However, this industrial area is substantially developed and it attracts a variety of truck/heavy vehicles. This appears to be the situation with the IPMG development located opposite the subject site, which is not subject to restricted heavy-duty vehicle movements. 46Consequently, the 'horse area', which contains a mix of horse training facilities and associated residences, is a relatively 'noisy' area as determined from the noise monitoring and as agreed by the acoustic experts. Notwithstanding this, the applicant applied to the RTA for approval of the B-Double route and after referral to council for consideration, this B-Double route was confirmed without any time restrictions, as previously mentioned. 47In these circumstances then, I note the DCP's restriction on night-time heavy vehicle operating hours between 6 pm - 7 am weekdays, which seek to qualify the B-Double route usage. However, council has relaxed this in the current circumstances by allowing the evening operations until 9.30 pm. 48Accordingly, I think the circumstances of an unrestricted B-Double route and past variations to the DCP controls now allows some discretion in operating hours, subject to any proposal reasonably achieving the stated objectives to "minimise" amenity impacts, during the extended periods. 49As stated, the main issues concern traffic safety and sleep disturbance impacts. With regard to the traffic safety concerns, the proposed redistribution of traffic (Table 1) involves an increase in workforce vehicles and heavy vehicles (including semi-trailers and B-Doubles) in the early morning period as stated in the TMP. 50I understand from the evidence that Mr Wiafe's primary concern, relative to the subject application is about the heavy truck movements and not the workforce vehicle movements and I accept this position. In this regard, Mr Coady undertook some traffic counts and they have been considered in conjunction with council's past traffic counts. 51Having considered the proposed changes relative to the existing traffic movements, I agree with Mr Coady's opinion that the additional eight (8) heavy vehicles in the 3.30 am - 6.00 am period is a relatively small increase in traffic movements. 52In my assessment, the potential interaction of these additional 8 trucks in the early morning period with the equine activities should be able to be safely managed as stated by Mr Coady. It is apparent from the surveys that the main location for conflict is along Manning Street, especially at the crossing leading to National Street. Otherwise the majority of the equine activities have alternate access to the racecourse. 53Assuming compliance with the TMP provisions, specificifically driver training and instructions to limit speeds to a maximum of 30 kph and taking into account that the road alignment is somewhat constrained, I think that the horse handlers would receive reasonable notice of the approaching trucks and be able to take any precautions. Obviously the approaching vehicle would be heard and in most cases it would have lights on. 54Based on Mr Coady's traffic studies it is apparent that there are some existing heavy vehicle movements in the early morning period. I therefore note that enquiries were made to the Police regarding any horse related road incidents in the past 2 years, within the subject section of the BDouble route. The Police response is that there were no incidents. 55This confirms my conclusion that the redistributed heavy vehicles of 8 vehicles over the extended period should not result in unacceptable traffic safety risks on the approved B-Double route and can be reasonably managed by way of conditions, so that any traffic safety impacts on the residential area are minimised. 56Notwithstanding this, I am still interested in the provision of some form of appropriate delineated person/animal crossing opposite National Street as an additional safety precaution. I am also concerned about Mr Wiafe's issue on the enforceability of the TMP provisions and think that it will take some time to fully implement these provisions. Therefore the approval on a 12month trial basis to ensure the new safety regime is fully operational and any additional safety facilities could be considered during this period seems reasonable. 57With regard to the associated noise issue, I accept that the 'horse area' is classified as relatively 'noisy' based on the noise monitoring results. But the determination of this issue was complicated by the disparate opinions presented by the acoustic consultants. 58I am satisfied that the appropriate controls are contained in the RNP, which was adopted by the NSW Government on 1 July 2011 to replace the previous controls in the ECRTN. The policy outlines a range of measures to minimise road noise and its impacts. 59Section 2 of the RNP "Assessment Criteria" states: The noise assessment criteria presented in this section are consistent with current international practice for managing traffic noise impacts. However, achieving the noise assessment criteria would not guarantee that all people would find the resulting level of traffic noise acceptable. There can be a wide variation in individual reaction to noise. In this context, the criteria have been set approximately at the point at which 90% of residents are not highly annoyed by the noise. The criteria for various road categories and land uses presented in Section 2.3 identify noise levels that provide for a degree of amenity appropriate for the land use and road category. The specified noise levels are based on well-documented social surveys defining a dose-response relationship between noise level and its effects, such as annoyance and disturbance to listening, talking, relaxing and studying (see Section 5.1). These levels are supported by comparison with overseas criteria. 60Section 3.4 states that where existing traffic noise levels are above the noise assessment criteria, the primary objective is to reduce these through feasible and reasonable measures to meet the assessment criteria. A secondary objective is to protect against excessive decreases in amenity as the result of a project by applying the relative increase criteria. Consequently, an increase of up to +2 dB represents a minor impact that is considered barely perceptible to the average person. 61In my assessment, Dr Tonin has followed the suggested procedures and recommended certain mitigation measures to ensure that any noise increase is comfortably below the specified + 2 dB allowance in a 'noisy' environment. When challenged by Mr Cooper on aspects of his assessment, Dr Tonin was able to indicate that within the sensitivity of the modelling exercise, it was conservative and there was still comfortable compliance with specified + 2dB allowance factor. 62Nevertheless, the challenge to the modelling did reveal some uncertainties about the various contributions of heavy vehicles during the night-time period when DFE trucks were operating outside the approved hours and this lead to various adjustments to the modelling results. Consequently, this makes me think that whilst there is some justification for extending the operating hours, as sought, further modelling over a longer period and at different times of the year, is warranted to ensure that any noise impacts are minimised long term. 63As I indicated previously, there were a number of objections raised against this application are. Those objections are summarised as:
Court orders
Benclutch Pty Limited
Liverpool City Council
[1998] VCAT 606
[1999] VCAT 794
[2001] VCAT 1955
[2002] VCAT 642
[2002] VCAT 1294
[2003] VCAT 968
[2004] VCAT 581
[2005] VCAT 863
[2005] VCAT 1470
[1997] VCAT 241
The appeal was upheld; the Court modified the conditions of consent for the DFE development at 20 Scrivener Street, Warwick Farm as set out in Attachment B, and ordered the return of exhibits except numbers 1, 3, 5 and P (see Court orders).