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:
- The proposed development will result in noise levels, which will have an adverse impact on the amenity of the neighbouring residential area.
- The proposed development will result in noise levels, which would cause sleep disturbance to the residents of homes located near the site and along the truck route to and from the site.
- The proposed development will result in light pollution during the night which will have an adverse impact on the neighbouring residential area
- The proposed development is inconsistent with existing neighbouring developments (residential and various equine industries) and would create a safety hazard for pedestrians, horses and other road users during the early morning on weekdays and all day on weekends
- The proposed development would worsen existing heavy traffic which would have a negative effect on the viability of the area as a training area and property values.
- The proposed development and the use of truck routes through the neighbouring residential area is inconsistent with the zoning of the area and the nature of the area as a horse racing precinct
64These objections are in the main consistent with the contentions raised by council and considered in the appeal. There was no substantive evidence presented regarding impact on property values or viability of the training area and I therefore give this little weight. With regard to the inconsistency with the zoning, I understand that there is a strategic planning review under consideration for this area but there was no compelling evidence to reject the application on these grounds.
65One such review is the Strategic Review of the Warwick Farm Horse Training Precinct. This review considered:
- Results of public consultation;
- Assessment of land use conflicts;
- Investigation of a secondary road access to address traffic volumes on Manning Street;
- On-street car parking controls;
- Horse and trainer safety; and
- Sustainability / longevity of horse training/boarding establishments.
66A number of actions were recommended including pursuit of a bypass road and the preparation of a Local Area Traffic Management Plan to address parking issues, speed limits, truck driver training. These matters are undetermined at this stage.
67In summary then, I consider the applicant has made a reasonable case to merit a variation of the approved operating times for the freight distribution operations and therefore some discretion can be exercised with the DCP controls. In this regard, I note the submissions regarding the matter of Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133, wherein the Preston CJ said:
Application of the Australian Standard RPS3
98 It is not appropriate for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3: Connell Wagner Pty Ltd v City of Port Phillip [1998] VCAT 606 (15 January 1999) at pp. 18, 21 and Heland Pty Ltd & Anor v Telstra, unreported, VCAT Ref No P 3620/2004 (8 March 2005) at [7].
99 Nor is it appropriate for a court to pioneer standards of its own. The creation of new standards is the responsibility of other authorities with special expertise, such as ARPANSA: Hyett v Corangamite Shire Council & Telstra [1999] VCAT 794 (30 April 1999) at p. 5; Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350 (9 March 2001) at 364 [61] and 379 [117]; Lucent Technologies v Maribyrnong City Council & Ors [2001] VCAT 1955 (27 September 2001) at [52] and [57]; Peasley & Ors v Frankston City Council [2002] VCAT 642 (25 July 2002); Telstra Corporation Ltd v Moreland City Council [2002] VCAT 1294 (23 October 2002) at [32]; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June 2003) at [24]; Optus Pty Ltd v Cardinia Shire Council [2004] VCAT 581 (2 April 2004) at [17] and [19]; Telstra Ltd v Mornington Peninsula Shire Council [2005] VCAT 863 (9 May 2005) at [20]; Hutchison 3G Australia Pty Ltd v Hobsons Bay City Council [2005] VCAT 1470 (18 July 2005) at [28]-[29].
100 The Court should accept and apply the Australian Standard RPS3: Sinclair v Loddon Shire Council [1997] VCAT 241 (1 December 1999) at p. 3; Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 250 at 364 [61]; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June 2003) at [26]; Blake Dawson Waldron on behalf of Telstra Corporation v West Tamar Council [2004] TASRMPAT 201 (20 August 2004) at [43]; Hutchison Telecommunication (Australia) Limited v Ku-ring-gai Municipal Council [2004] NSWLEC 665 (10 November 2004) at [15]; and see also McIntyre v Christchurch City Council [1996] NZRMA 289 (5 March 1996) New Zealand Environment Court, 295.
68Whilst I consider these finding have very limited application to the subject matter, I am satisfied that the RNP is the appropriate control to adopt regarding road noise assessment. Accordingly, I think that providing its overall objectives are achieved along with qualitative objectives in the LEP and DCP to minimise any adverse (traffic safety and noise) impacts on the area, then the quantitative controls of the DCP for operating hours can be varied.
69My findings, based on the evidence are that an acceptable balance between the competing interests of the industrial area users and the residential area should be achieved by:
I.Extended hours of operation for the heavy vehicles being permitted on the basis of a 12 - month trial period to allow for the various TMP measures to be fully implemented and provide a reasonable period for effective self regulation.
II.The evening period extension to be limited to 10 pm and not 10.30 pm. In this regard, I note the frequent references in the RNP to 10pm as the change time from the evening period to the night - time period from 10 pm to 7 am. It seems to me that this is a relevant consideration to enable the 'horse area' residents a reasonable opportunity for sleep period prior to their early morning horse training activities.
III.The early morning heavy vehicle movements as listed in Table 1 not to commence before 4am. It seems reasonable that the relatively low number of redistributed heavy vehicle arrivals could be effectively scheduled to avoid the "quiter" period from 3.30 -4.00am, in terms of horse activity, thereby minimising any adverse traffic and noise impacts.
IV.An effective noise and traffic monitoring program be implemented to provide accurate evaluation criteria at the end of the 12 - month trial period. Such program should address the issues raised by Mr Cooper regarding the contribution by vehicles from various sources. It should also cover the enforceability issues raised by Mr Wiafe
V.The 12 - month trial period would enable council to progress the strategic planning for this area, particularly the preparation of the LATM plan, which could presumably address any the B - Double route operating restrictions and the introduction of any traffic control measures such as pedestrian/horse crossing facility across Manning Street.
70As these measures were not specifically addressed during the hearing, the parties are invited to make any further submissions in this regard or file amended conditions to achieve the desired outcomes, which are to minimise adverse amenity impacts in the area, prior to the making of final orders.