1(c) A continuous acoustic fence shall be constructed on top of the mound finished in treated pine and painted in a muted green colour and returned to a point at least 32.5 metres from the rear (north) boundary of the site. The height of the acoustic fence must not be less than 4.5 metres above the level of the northern car park.

3 Subject to conditions 37 to 43, or except with the prior written consent of the responsible authority, the use may only operate between 5:00am and 10:00pm seven days a week.

2 I direct that the following additional conditions be added to the permit:

37 Except with the prior written consent of the Responsible Authority, up to 30 deliveries to the site may be made between 10:00pm and 5:00am in any year.

38 No vehicle delivering goods to the site between 10:00pm and 5:00am shall be unloaded during this period using a vehicle which has audible reversing beepers.

39 Except with the prior written consent of the Responsible Authority, not more than four deliveries to the site shall be made between 5:00am and 7:00am on any day.

40 All deliveries to the site between 5:00am and 7:00am shall be by vehicles owned by the occupier of the site.

41 No deliveries from the site shall be made between 5:00am and 7:00am on any day.

42 All vehicles owned by the occupier of the site and used for delivering goods to the site or for unloading, if fitted with acoustic warning devices, must be fitted with devices that are broadband and have a sound output that is to the satisfaction of the responsible authority. Further, such devices must be fitted as low to the ground as practicable.

43 The occupier must maintain a log of the time and nature of all deliveries to the site that occur between the hours of 7:00pm and 7:00am and the log must be available for inspection by the responsible authority.

Mr A J Finanzio (on 12.03.04) and Mr Chris Wren (on 19.03.04), both of counsel, instructed by Best Hooper, solicitors

1 No-one doubts that reversing beepers on trucks and forklifts serve an important role in occupational health and safety; but they can also be an environmental nuisance. Indeed, some members of the community believe that the important safety objective has been achieved at the expense of the peace and quiet of many neighbourhoods. These issues arise fairly and squarely in this proceeding; and, hopefully, the way in which the proceeding has been resolved will point to better solutions throughout Victoria.

2 The case arises this way. The permit applicant wishes to develop land for a warehouse and to lease the warehouse to a business which wishes to operate in the early hours of the morning, prior to 7:00am. The responsible authority, the Hume City Council (the council), decided to grant a permit pursuant to the Hume Planning Scheme. The permit contained a condition that, except with the prior written consent of the responsible authority, the use may only operate between 7:00am and 5:00pm seven days a week. The developer is unhappy with this condition. Consequently it has applied to the tribunal to review the condition.

3 The land is located on the northern side of Western Avenue, Westmeadows, near to the Melbourne Airport at Tullamarine; and is quite close to the recently constructed factory that produces The Age newspaper. The subdivision in which the land is located has been developed to a high standard, and includes a landscape strip, 20 metres wide, to its north. The subject land itself has an area of 8,316 square metres.

4 The land is zoned Business 3. Pursuant to clause 34.03-1 of the planning scheme a permit is required to use land in this zone for the purpose of a warehouse where the site is within 30 metres of a residential zone. This applies in this case. Further, pursuant to clause 34.03-4, a permit is required to construct a building or works.

5 Land to the south, east and west of the subject land is developed with warehouses. But the land to the north, on the other side of the 20 metre wide landscape strip, is in a residential zone and is used for detached houses.

6 The proposed warehouse is to have an area of 2,000 square metres, together with a further area of 800 square metres of office space (which is towards the front of the site). Thirty-one car spaces are proposed at the front of the site and 21 car spaces at the rear of the site. There is a loading dock proposed at the eastern side of the building.

7 Although the proposed warehouse and loading area is to be set back 32.5 metres from the adjoining residential zone, noise generated by the warehouse use is obviously a key issue. It may be true that persons who live adjacent to industrial or commercial land must expect a noisier environment than in the heart of a residential area. However this does not justify carte blanche in relation to industrial noise. Every resident, even those living adjacent to commercial or industrial land, is entitled to an acceptable noise environment.[1]

8 Indeed, clause 15.05-2 of the planning scheme provides that responsible authorities should ensure that development is not prejudiced, and community amenity is not reduced, by noise emissions. One technique is to ensure that there is a suitable separation between potentially amenity reducing and sensitive land uses. Further, the policy provides that decisions should be consistent with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 (SEPP N-1).

9 The applicant submitted that the condition imposed by the council would limit its prospective tenant in the operation of its business. The tribunal was told that there would be occasions where deliveries would be required to be accepted between 5:00am and 7:00am. Further it was said that deliveries might be made in the late evening. Indeed, permission was also sought to accept deliveries between midnight and 5:00am from time to time.

10 It is obviously desirable to facilitate the flexible operation of a warehouse business of the size proposed, especially having regard to its location near a major international airport. Increasingly we are living in a world which operates around the clock; the American expression 24/7 has become part of the lexicon of young Australians. It is plain that where substantial capital has been invested in a fixed facility there are advantages to the business, and ultimately to the community, if that facility is used to its capacity. That said, it is also essential that industrial businesses operating near residential zones comply with SEPP N-1 and not cause unacceptable noise, particularly at night.

11 The permit application was accompanied by a report prepared by Watson Moss Growcott Acoustics Pty Ltd dated November 2003. In that report Mr Douglas Growcott, an acoustic engineer, established SEPP N-1 permissible noise limits, made estimates of likely noise propagation and concluded that the effective noise level would not be greater than the permissible noise limits. When this case first came on for hearing on 12 March 2004 Mr Growcott was called and gave evidence to the same effect. I was not satisfied that a number of aspects had been properly considered by Mr Growcott. Rather I thought that his report had not faced up to one of the critical issues, namely the impact of reversing beepers. Accordingly I adjourned the case for seven days to enable more work to be done.

12 At the resumed hearing Mr Growcott presented a further report, dated 17 March 2004. Mr Growcott revised the SEPP N-1 permissible noise limits, downwards. Indeed, in the case of the night period the permissible noise limit was reduced from 57dB(A) to 48dB(A), which is a very substantial reduction. Mr Growcott had initially relied upon high ambient background noise levels which he had recorded in the area; and he relied on these to produce the higher permissible noise limits. His ambient noise levels were challenged by Mr Ian Delphin. Accordingly further readings were taken and they effectively showed that Mr Delphin's concern was justified.

13 The effect of the lower permissible noise limits was to create a more difficult challenge for the permit applicant. Accordingly the applicant proposed a number of additional measures. One was to alter the design of the interface between the proposed warehouse and the residential areas by the construction of a substantial acoustic fence. The fence is proposed to be 2.5 metres high, on top of a mound 2 metres high; thus having an effective acoustic height of 4.5 metres. Second the permit applicant sought to address the problem by suggesting a number of conditions which could be imposed upon the use, which were principally designed to reduce the nuisance caused by reversing beepers.

14 I desire to say a little more about reversing beepers.

15 First, a proper assessment of effective noise levels pursuant to SEPP N-1 does require the noise made by reversing beepers to be taken into account. Mr Growcott contended to the contrary, but I hold that he is wrong. SEPP N-1 has the policy goal of protecting people from commercial, industrial or trade noise that may affect the beneficial uses made of noise sensitive areas (which expression includes a dwelling). The policy states that beneficial uses shall be the normal domestic and recreational activities including, in particular, sleep in the night period. The policy applies generally to commercial, industrial or trade premises and includes premises such as the proposed warehouse. The policy then requires that the effective noise level (which is essentially a noise level measured using the energy average of the noise over a 30 minute period), not exceed noise limits, determined by reference to the nature of the area and the ambient noise levels.

16 Clause 9 of the SEPP N-1 provides that certain types of noise emitted from commercial, industrial or trade premises are not assessed by the policy. These types of noise include music, voices, noise from construction activities on building sites, and noise from a fire pump used in an emergency. One of the types of noise which is specified as not being assessed by the policy is:

Noise from audible intruder, emergency or safety alarms.

17 A reversing beeper on a truck or on a forklift is, in one sense, a safety alarm. But, in another sense, the noise made by reversing beepers is just a routine part of the normal activities of a warehouse use. Indeed, in the present case, Mr Growcott's evidence was that in a typical 30 minute period forklift noise would occur for 26 minutes. One would expect that a significant proportion of this time would be spent in reversing activities. Further, he estimated that trucks would be reversing in the loading area in a typical 30 minute period.

18 Ultimately the answer to this question lies not in the facts of this case but in the meaning of the words used in the policy. In my opinion, the word safety must be interpreted in the context of its use, alongside the words intruder and emergency, to qualify the noun alarms. The common thread is an alarm which is an exceptional event, responding to some unusual happening, such as an intruder entering premises, an emergency of some kind or some breach of a safety requirement. The common thread does not extend to a routine noise.

19 Further, this approach best gives effect to the intent of the policy. Clearly a purpose of SEPP N-1 is that sleep in normal domestic premises is to be protected. Given that typical reversing beepers are highly annoying, with a persistent sound akin to a modern alarm clock, and are part of routine operations, often at night, it is unlikely that the authors of SEPP N-1 intended that this noise be excluded from assessment.

20 Fortunately, the noise measurements taken by Mr Growcott, which he relied upon in his SEPP N-1 analysis, included the noise made by reversing beepers. (It would have been quite impractical to have excluded this noise: which is a further reason why it is unlikely that SEPP N-1 intended the noise of reversing beepers to be excluded from consideration.) Mr Growcott also gave evidence that the typical maximum noise peaks from common reversing beepers was in the range of 78-82 dB(A) max when measured at 10 metres and with an unobstructed noise propagation path.

21 Schedule A4 of SEPP N-1 makes provision for the measurement procedure to be used, in the case of minor premises, where the noise has a tonal quality or is impulsive in character. The subject premises are regarded as minor premises pursuant to the policy.[2] Schedule A4 provides:

When the noise is tonal in character then an adjustment shall be made as follows:

(a) When the tonal character of the noise is just detectable then Atone = +2 dB.

(b) When the tonal character of the noise is prominent then Atone = +5 dB

22 The noise made by reversing beepers is tonal in character; and, generally speaking, would be regarded as prominent and not just detectable. Accordingly an analysis of noise for the purpose of N-1 would need to be adjusted by 5 dB when the noise of reversing beepers forms a substantial part of the noise being emitted. In his analysis Mr Growcott did not make any adjustment for the tonal character of the noise, by reason of reversing beepers. If he had made such an adjustment the proposed use would not comply with SEPP N-1 during the night period.

23 As I have mentioned, one response to the more stringent noise limits adopted in the most recent Growcott report was to propose the construction of a substantial acoustic fence, with no gaps, between the commercial land and the residential land.[3] But this is not sufficient to achieve compliance. The nature of the reversing beepers also needed to be addressed.

24 In the light of the above, the next solution offered by the applicant was the use of different reversing beepers, which would not be tonal in character and which might be at lower levels than the 78-82 dB(A) referred to previously. Mr Growcott gave evidence that a new type of reversing beeper was available using a sound known as broadband. The sound made by a broadband beeper is not only a sound made over a wider frequency, but is lower in tone. A typical broadband beeper makes a noise similar to sh sh sh sh. An audio demonstration of this can be heard on the website www.reverseinsafety.co.uk and this site also carries other details about broadband beepers.

25 Mr Growcott gave evidence that a broadband beeper was not tonal in character; and I accept this evidence. This means that, if only broadband beepers are used during the night period, no tonal adjustment is required under SEPP N-1. It also means, based on Mr Growcott's evidence, that the use of the premises during the night period could comply with SEPP N-1.

26 Broadband beepers are available at various sound output levels. For example, a medium duty reversing beeper, which is suitable for commercial vehicles and forklifts, can be purchased with an output dB(A) at 1.2 metres of either 97 or 92. This translates into an output level of 79 and 74 at 10 metres. Further, these broadband beepers can be purchased for light commercial vehicles and smaller forklifts with an output dB(A) at 1.2 metres of 87 or 82; which translates to an output level of 69 or 64 at 10 metres.

27 The purpose of a reversing beeper is to warn persons of an approaching vehicle in circumstances where the operator might have his or her sight impaired. The noise required to achieve this task will generally be dependent upon the ambient noise. The higher the ambient noise, the higher the noise needed to warn; and, conversely, the lower the ambient noise, the lower the noise needed to warn. I was told there is now available a reversing beeper known as a smart beeper which measures the ambient noise and then determines the noise level of the beeper by reference to the ambient noise. Such a smart beeper will thus achieve its safety objective whilst causing the least disruption to the environment. I see no reason why there cannot be smart broadband beepers. The sooner they are introduced on a widespread basis, the better.

28 Generally speaking trucks delivering goods to the land will be subject to design rules made under the Motor Vehicle Standards Act 1989 (Commonwealth). The current design rule[4] specifies design requirements to ensure safe operation of vehicles. The standard applies to the design of various types of vehicles, including trucks. Clause 20 of the design rule makes reference to audible warning devices and generally places a limit on what devices can be installed other than on emergency community service vehicles. However clause 20.3 specifically deals with reversing alarms. It relevantly provides:

A further device may be fitted which when and only when reverse gear is selected emits an intermittent audible signal on a regular time cycle. It must not emit a signal louder than is necessary to warn persons of the proximity of the reversing vehicle. [My emphasis.]

It is to be noted that this design standard is totally consistent with the notion that, although reversing beepers must be effective to warn persons of the reversing vehicle, they must be no louder than is necessary.

29 Forklifts operating on the site will be subject to the Occupational Health and Safety (Plant) Regulations 1995. Clause 304(2) of those regulations provides:

(c) if there is a likelihood of powered mobile plant colliding with pedestrians or other powered mobile plant, the design of the plant incorporates a warning device which will warn people who may be at risk from the movement of the plant.

Workcover Safety has published guidelines for powered mobile plant and this is available on its website. The guidelines are intended to provide practical information as to how the requirements of the regulation are to be implemented. The guidelines published by Workcover Safety state that the type of warning device required to eliminate or reduce the risk of collision is not prescribed. Various examples of warning devices are given, of which audible alarms is just one. Other devices referred to in the guidelines are motion sensors, lights (including flashing and rotary lights), horns, percussion alarms and radio sensing devices. Hence there is no requirement that forklifts must have audible reversing beepers, although this will often be a suitable form of warning device. The Workcover Safety guidelines in respect of audible alarms also state that the tone of a reversing beeper must be distinct and clearly audible in the working environment. This will be able to be achieved by a broadband beeper; indeed, because the direction of the sound may be more easily identified, such a device could often be more effective than a tonal beeper.

30 The Workcover Safety guidelines also refer to radio sensing devices. This is a device which activates when the driver selects reverse gear and can alert the driver that a pedestrian is within a given distance of the rear of the vehicle. Such techniques are already in place in parts of the mining industry: for example, according to Australian Coal Research Limited, it has been installed at the Bengalla mining site in the Hunter Valley in New South Wales. No doubt this method will provide another solution where environmental noise is of particular concern.

31 Mr Growcott accepted that the environmental nuisance caused by a reversing beeper would be minimised by the placement of the beeper as low to the ground as possible. This will be included in the conditions required to be observed in this case. It is to be observed that the safety objective is not impaired by placing the reversing beeper low to the ground; but this will assist in minimising the propagation of beeper noise to the discomfort of nearby occupiers.

32 According to the manufacturer of broadband reversing beepers, it is important for a person to be warned of a reversing vehicle to be able to localise the sound. It is said that this enables the person to be aware of the direction from which the vehicle is travelling and, also, the direction in which it is travelling. Ironically it would seem that the tonal beepers commonly used today emit a sound which many humans find difficult to localise.[5] By contrast, a broadband noise, that contains a larger spectrum of frequencies, is generally easier to localise as the brain has more cues available. Although I have limited material before me in relation to this question, I must say that it makes sense.

33 I am not persuaded that there should be deliveries to the premises between 10:00pm and 5:00am, other than in exceptional circumstances. Such exceptional circumstances may arise if there is some logistical breakdown or unforeseen event within the distribution chain; in which case a small number of deliveries might be acceptable. It is difficult to formulate a condition to deal with this type of situation. In the end I have decided that the appropriate condition is to allow not more than 30 such deliveries during any year. There will be scope to change this limit with the prior written consent of the responsible authority. The intent is that deliveries between 10:00pm and 5:00am be constrained to circumstances where this is unavoidable for one reason or another. I add that the evidence placed before me to justify operations between 10:00pm and 5:00am was meagre. No doubt if there is a real need for operations of a regular nature during these hours, which can be satisfied without impairing residential amenity, the responsible authority will give written consent for this to occur.

34 Having regard to the needs of the proposed occupier, and bearing in mind the evidence given by Mr Growcott as to compliance with SEPP N-1, I do propose to allow some deliveries between 5:00am and 7:00am. However I will specify that, except with the prior written consent of the responsible authority, not more than four such deliveries take place on any day. Moreover deliveries taking place during these times must be by vehicles owned by the occupier of the site. Further, all vehicles owned by the occupier of the site and used for delivering goods to the site, or for unloading, if fitted with an acoustic reversing warning device, must be a broadband device. Further, I will require that the device have a sound output that is to the satisfaction of the responsible authority. This will enable the responsible authority to assess the various devices proposed, by reference to both sound output and whether the device is a "smart" device, to ensure that the noise achieves its safety objective whilst having the least impact upon the environment.

35 Further, I propose to require the occupier to maintain a log of the time and nature of all deliveries to the site that occur between the hours of 7:00pm and 7:00am. I will also require that the log is available for inspection by the responsible authority. The purpose of this condition is to assist the responsible authority in the enforcement of the conditions of the permit.

36 The effect of including additional conditions, particularly that requiring the construction of an acoustic fence and those in relation to the reversing beepers, means that some relaxation to the permitted operating hours is appropriate.

[1] Those persons living in a caretaker's dwelling may be an exception to this principle.

[2] All premises are minor premises except those prescribed as schedule three premises under the Environment Protection (Scheduled Premises and Exemptions) Regulations 1996. Generally schedule three premises are major industrial activities.

[3] It is desirable that this fence be continued to the wall of the factory building on the land to the east of the subject land in order to ensure that there are no gaps through which sound can be propagated from the industrial area to the residential area. I cannot require the construction of the small portion of fence that will be required on the adjoining site, but I recommend that the responsible authority use its best influences to have such a fence constructed. Obviously the construction of such a fence will be in the interests of the occupier of the adjoining land as it will reduce the prospect of a noise complaint being made against it.

[4] Australian Design Rule 42/04 General Safety Requirements.

[5] A similar finding was made by the National Institute for Occupational Safety and Health in Memphis, Tennessee, in a study of warning devices used by the Memphis Fire Department: see Randy L Tubbs, Health Hazard Evaluation Report HETA 86-138-2017, February 1990.