11 Mr Gauld assessed noise emissions from the adjacent Appin Colliery in accordance with the Environment Protection Authority ("EPA") Industrial Noise Policy environmental noise guidelines and EPA Environmental Criteria for Road Traffic Noise.
12 In his opinion, the applicant's proposal does not make adequate provision for the exclusion of industrial noise from the colliery. There is no contradiction to this evidence and Mr Gauld was not persuaded to change his fundamental view in any significant relevant respect during cross-examination.
13 A company controlled by BHP Billiton operates the colliery in accordance with appropriate consents. The latest consent is the grant of development consent that effectively authorises an increase in the transport of unwashed coal from the site to four million tonnes per annum. The latest development application was assessed for noise impact by Renzo Tonin and Associates. Although the subject application for development consent in respect of the caravan park had been lodged with the council prior to the most recent grant of development consent for the colliery in September 2003, it appears that the prospect of impact of noise generated by traffic noise of trucks on future residents of the subject site was not addressed.
14 Mr Gauld predicted that the level of intrusive noise from the colliery will be 52 Leq (15min) dBA against an acceptable noise level of 40 dBA. The maximum noise is assessed as 68 L1 (15 min) dBA whereas the acceptable noise level is 60 dBA. Traffic noise assessed as Leq (1 hour) dBA was predicted to be within acceptable noise levels.
15 Mr Gauld concludes that his measurements and computations show that the site is not suitable for the proposed development as the noise from the colliery industrial area will be above the allowable noise limits set out in the EPA Industrial Noise Policy. He says that without suitable noise controls noise intrusion from the colliery activities will cause "offensive noise" at the proposed development in the sense contemplated by the Protection of the Environment Operations Act 1997 ("the PEO Act"). Thereby making it unsuitable for use as a caravan park.
16 Mr Galasso, who appears on behalf of the applicant, seeks to persuade the Court that because the future residents will be short stay only the impact should not be assessed in the same way as permanent residential dwellings on the basis that the occupiers of the site from time to time will be transient. It is too simplistic to regard all potential residents as persons who propose to stay only over night or a weekend when, pursuant to the definitions in the legislation applicable to caravan parks, short stay is recognised as up to 150 days. Mr Galasso also argues that as the likely residents will enter the environment with an understanding of the noise potential they will accept it. The Court has no way of knowing whether this suggestion is supportable and rejects it.
17 Finally, Mr Galasso asserts that as there is no specific assimilation of caravan parks into EPA residential guidelines or criteria it can be inferred that it is not intended for caravan parks to be assessed as residential use. To the contrary, the absence of any such reference or criteria leaves the Court with no real option except to adopt the acceptable limits adopted by the EPA and embraced by Mr Gauld in regard to intrusive noise and sleep arousal for dwelling houses.
18 It is not appropriate as a matter of principle to foreshadow the imposition of controls on the approved activities at the colliery in order to accommodate the amenity of the users of the caravan park. The mine has been approved and established without contemplating what is effectively a residential use of the subject land. There are many instances of residential type development encroaching into the environs of existing industrial uses with detrimental consequences to the operator of the industrial use. Typical of this consequence is the circumstance of Illawarra Coke Co Pty Ltd as demonstrated by the outcome of criminal proceedings taken against it by the EPA pursuant to the PEO Act reported in 2002 (118 LEGERA 451) where the conflict of land use had arisen by residential development spreading into the pre-existing industrial environment occupied by the company. Other examples abound in the rural urban interface on the outskirts of Sydney, particularly in respect of mushroom growing and poultry producer uses (see Ingham Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA 68). The decision of the Court of Appeal in Kira demonstrates that it is not the province of the consent authority nor is it appropriate to seek to have an existing user ameliorate the impacts of pre-existing development rather those impacts should be addressed by imposition of conditions or constraints on the proposed development or refusal of consent.
19 The approval of the caravan park will have the effect of introducing an inherently conflicting residential land use which almost inevitably will lead to confrontation, complaint and possible attempts to constrain the use of the colliery site beyond the controls imposed by existing approved conditions.
20 For that reason alone the development application must be determined by refusal of consent. The permissible uses in the zone are not limited to residential type development and it is not therefore a situation where the refusal of the development application will necessarily have the effect of sterilising the future use of the land.