Martin v Campbelltown City Council

Land and Environment Court (NSW)|2000-10-27|Before: Sheahan J, Mr J, Mr P

The applicant argues for " urban/industrial interface ", and Atkins gave evidence on that basis. That would allow for higher noise levels. However, this is a long-established rural industry (i.e. " existing " under the Policy), located next to a residence in an area of rural-residential living, which is zoned " scenic protection ", and situated not far from an urban residential area (see Exhibit C8 ). A few poultry undertakings, even though two are on adjacent blocks, do not seem to me to be enough to take the area out of the " rural ", or perhaps the " suburban ", category (see again definitions in par 20).

Mr McEwen, for the Council, submitted that the " urban/industrial interface " classification is " totally inappropriate " in this case (T.7,L.25), it being designed to cover " situations closer into the development in the Campbelltown area ", or in Sydney suburbs " which have had longstanding industrial sections up against urban development, like for example Botany " (L.32ff). I accept Mr McEwen's submission in that regard.

In arriving at the most " feasible and reasonable " solution, I acknowledge that Martin has made important efforts to bring the noise level down, and is prepared, within reason, to do more, e.g. blinds/shutters. However, there is some disagreement between Challis and Atkins in regard to the likely effectiveness of such alterations to the sheds.

It has also been suggested by Mr Webster, for the applicant, that the court should take a different stance if Mr Howarth builds his new house where he proposes, because that location might result in complaints from him about noise from Shed No.1.

However, the court prefers to impose the appropriate noise reduction regime for the Martin operation, irrespective of Mr Howarth's preferred location for his new house, and allow some time to complete whatever works it may necessitate. This aspect of the matter was made somewhat more complex by Mr McEwen's preparedness to meet Mr Webster on it, but suiting only Mr Howarth raises the prospect of further complaints by neighbours not yet resident in the area. If the question comes down to where blinds/shutters should be fitted, the court believes they should be fitted to both sheds, not just No.2, and a reasonable time should be allowed for Martin to comply.

I have concluded that a limit of 5dB(A) above background, approximately 41dB(A), is reasonable. While I acknowledge Mr Atkins' pessimism about its achievability, such a night time night limit should be set by the Notice.

To achieve it " on the ground ", Martin needs to embark further on a noise reduction programme, the details of which can be included as conditions of an amended Notice - i.e. the Notice should be amended generally in terms of Exhibit C5, and Exhibit M13 as amended by Exhibit C7 , rather than Exhibit M15 .

As the exhibits were prepared " on the run ", amended during argument, and exhibit some inelegant expression, clear errors, and some inconsistencies, they should be returned so that the parties can agree upon the terms of an amended Notice which reflects these reasons for judgment and achieves the objectives I have set out herein.

It would not be " feasible and reasonable " for the Notice to require of Martin that: (a) he replace his sheds, (b) collection take place during the day, (c) baffles be fitted to collection trucks, and (d) electric forklifts be used in preference to others .

However, the court has concluded that it is " feasible and reasonable " that he be required: (a) to alert nearest neighbours of collection dates, (b) to endeavour to arrange collections for the early evening hours, (c) to install sound-moderating blinds/shutters to the sides of both his sheds, (d) to use the most silent suitable forklifts available, (e) to reduce the operating noise of his cooling fans, especially at night (with some flexibility in high temperatures), (f) to use his best endeavours to minimise human noise during poultry collection, (g) to conduct poultry collection at and from the eastern end of his sheds, and in the area between them, and that truck movements, including turning, be arranged accordingly, so that reversing horns are not activated, and (h) to ensure that plastic chicken trays and modules are used rather than metal ones.
It is also " feasible and reasonable " that the court require that: (i) these improvements be effected by the applicant within, say, 6 months of the court's final orders in regard to the Notice, (ii) they be incorporated into a Noise Reduction Programme submitted to Council by the applicant within, say 2 months of such final orders, and (iii) the noise performance of the Martin farm and operations be subject to monitoring on a periodic basis.

The appeal stands adjourned for mention before me at 9.30am on Thursday 9 November 2000 for the purpose of making final orders. 2. All the exhibits are to be returned. 3. The parties have leave to bring in on 9 November 2000 short minutes of order to reflect the reasons for judgment published on Friday 27 October 2000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(i) Martin changed "the pickup times" when he took over the farm in about 1988 (Exhibit C1 Annexure "B");

(ii) the noise became objectionable when forklifts were introduced in about early 1990; and

(iii) location of the proposed new Howarth house to the rear, rather than towards the front, of their block of land is not feasible because of services.

34. Cordina says forklifts were used as long ago as 1980, but concedes that the collection system changed in 1989. Martin does not control the pick-up times.

35. Howarth's current complaints concern the following activities during poultry collections from next door (Exhibit C2 par 10):

(i) The revving of the motor vehicles used to pick up and remove the chickens.

(ii) The revving of the forklift used to load the chicken cages into trucks.

(iii) The noise of the cages being picked up and unloaded onto the trucks.

(v) The noise of the person engaged in those operations, talking and yelling as they carry out the operations.

36. Howarth has kept records of particular noise incidents between 1991 and 2000, at which the earliest recorded starting time of collection noise was 7.40pm and the latest 3am, and the earliest recorded finishing time was 10pm and the latest 5am (see Exhibit C2 pars 11-20).

37. It seems to be common ground that the usual practice, and probably the "best practice", in the poultry industry is to "collect" birds at night. Mr Bolla of NSW Agriculture notes (Exhibit M8 par 3):

Loading and transporting birds in the cool of the evening is essential in Australia's relatively warm climate. To do otherwise would jeopardise the welfare of the birds as increased bird stress levels would cost the industry dearly in terms of bird losses and reduced carcase quality following processing.

Most processors have implemented measures to reduce noise when chickens are being picked up. This includes the use of later model forklifts with quieter engines and better silencers. Trucks used in transporting chickens often have improved mufflers to limit noise output and pickup crews have been briefed by processors to eliminate the use of exhaust brakes on vehicles and reduce noise and voice factors whilst on farms. The use of metal chains for tying down crates has also been eliminated.

(a) the sheds were and are not designed for daylight pick ups;

(b) the chickens become distressed when they can see the activities which are taking place. This distress is manifested by increased fighting, exertion and general panic.

40. Mr Parker of the NSW Farmers Association testified (Exhibit M2):

21. It is possible to minimise this panic/stress reaction by sedating the birds, but this is a practice unacceptable to both the farmers and the public.

22. The most effective way is to pick up the birds at night. Just like `backyard budgies', turkeys and chicken `bed down' and sleep when there is darkness, a phenomenon which also happens during eclipses of the sun. The birds take sometime to bed down after twilight. Once bedded down the birds are calm and not as flighty. They can be handled, picked up and transported with much less risk of stress, panic and death.

23. For these reasons, pick up usually cannot commence until about 1 hour after twilight. In summer, this could be as late as 10:00p.m. Usually, there is a need to allow at least 3 hours to pick up a shed of 20,000 birds to be completed in a humane way without rush.

24. As well, heat is a problem with chickens. They have a body temperature of 41o Celsius and are susceptible to heat. Heat levels in poultry houses rise very quickly when birds are stirred up. This is also why pick ups are performed in the cool of the night, so that birds can be transported without too much heat stress.

41. It would appear that "collectors" travel from farm to farm, probably visiting 5 or 6 farms per night, and carrying their own forklift truck on the collection truck, which is usually a semi-trailer.

42. The feeding equipment suspended in the sheds is winched up so that the forklift can move into and around the sheds during collection.

43. The chickens are collected into a "tray", which when loaded weighs about 45 kg. About 12 trays are stacked (3 x 4) in a "module", and the truck carries 22 modules (Exhibit M1, par 10).

44. After the sale of No.317 to the Martins in 1986, the Beckas introduced the Martins to John Cordina, the now CEO of the family controlled business of 50 years' standing, Cordina Chicken Farms Pty Ltd ("Cordina"). The Beckas had been Cordina "contract growers" since at least about 1980 (Exhibit M3 par 9, c.f. Exhibit M4 par 16).

45. The Beckas had purchased the property on "31 (sic) June 1966" (Exhibit M3 par 1), when it was vacant land. The Zimmerman family was then already established as "chicken growers" at 315 Bensley Road, apparently since about 1960 (Exhibit M1 par 17), and they also have a contract with Cordina.

46. The "fibro cottage" at No.319 was "occupied by a tenant" at that time. "Surrounding properties were largely vacant land" (Exhibit M3 par 2). The Beckas built Shed No.1 (91m x 12.1m) shortly after acquiring the property, and Shed No.2 (102m x 12.1m) in "about 1970 or 1971" (Exhibit M3 pars 3-7). Shed No.1 has a capacity of 18,000 birds, and shed No.2 20,000 (Exhibit M4 par 13). Since their acquisition of the farm, Martins have spent some $83,900 on improvements to the sheds (Exhibit M1 par 13).

47. Becka testified that all building works on the property enjoyed Council's consent (Exhibit M3 par 7), but there appear to have been no conditions imposed regarding noise matters (Exhibit M6 par 2.0).

48. At the time of their sale to the Martins, the Beckas were growing "about 36,000 chickens per batch", and "4 or 5 batches annually" (Exhibit M3, par 9), and "pick ups of grown chickens usually followed the following procedure" (Exhibit M3 par 11):

(a) at some point in time during either the late afternoon or early evening, a prime mover delivered a semi trailer to the Property. The semi trailer consisted of 22 all steel and wire crates, 8' x 4' in size each capable of carrying similar numbers of chickens to the modern module used at this time: these crates were heavy and very noisy when loading;

(b) at some point in time in the evening a service truck would come to the Property. On the service truck was a forklift and up to 6 contract workmen, 4 or 5 of whom acted as catchers and 1 of whom was a forklift driver;

(c) the catchers and the forklift driver always worked at night time. In winter months loading started early at about 7:00p.m. and was usually completed by 10:00p.m. In summer months the catchers worked a little later and sometimes did not arrive at the Property until about 9:00p.m. and would finish at about midnight. Very occasionally in any one year, maybe 3 or 4 times, a pick up would occur after midnight;

(d) the chickens were caught, put into the crates which were then loaded onto the semi trailer: each trailer took between 6,000 and 7,000 birds;

(e) the loaded semi trailer would then be sent to the processing plant.

49. Mr Becka "had no real arguments or disputes with Mr Howarth ... about noise relating to pick ups of the growing chickens" (Exhibit M3 par 12).

50. Contract growers in New South Wales operate under the umbrella of the Poultry Meat Industry ("PMI") Act 1986, which is administered by a PMI Committee ("PMIC") (Exhibit M2 par 10). The area manager of the NSW Farmers Association, Mr Parker, opines that "Martin's farm is above the promoted minimum standard in terms of shedding and equipment" (Exhibit M2 par 14), and that "Martin conducts his farm in accordance with the model promoted by PMIC and in accordance with best industry practices" (Exhibit M2 par 41).

51. Mr Martin personally attends all collections "to ensure that the chickens are loaded quickly, efficiently and in a humane way" (Exhibit M1 par 30).

52. Cordina processes about 300,000 chickens each week, sourced from its "contract farming operations" (Exhibit M4 par 8).

53. The Martin farm is one of 50 farms under contract to Cordina. Martin's current five-year contract with Cordina terminates in July 2004 (Exhibit M4 par 12 and Exhibit M1).

54. Cordina's Field Service Manager, Paul Elias, and John Cordina, testified that the Martin farm meets the company's specifications (Exhibit M4 par 14 and Exhibit M5 pars 13-14).

55. Cordina places on its contract farms one-day-old birds from the Cordina hatchery, and the contract grower rears them to a stipulated weight, under Cordina's specifications and active supervision, on a 56 day cycle.

56. The contract grower is required to provide "adequate husbandry according to the Cordina Broiler Growing Manual and the Cordina Broiler Growing Agreement" and is paid for the number of live birds collected (see Exhibits M4 and M5).

57. Cordina delivers to Martin batches of 38,000 day-old chickens at a time. Martin testified (Exhibit M1) that during three weeks of pick-ups birds of the respective weights 1.8kg, 2.5kg and 3.5kg are collected. After a break of 3 to 14 days at the end of each 56 day cycle another batch of 38,000 will be delivered.

58. John Cordina described the "pickup process" (post 1989) in this way (Exhibit M4):

20. Cordina pick-ups generally commence on a farm at about 35 days of age and can continue at that farm until the chickens are 56 days of age.

21. During this 21 day period (between days 35 and 56) each shed on the relevant farm can be entered about 3 times to pick-up chickens.

22. ... weights of pick-up vary and are determined by Cordina's marketing demand; although a basic profile is in place, daily fluctuations can occur.

23. Cordina has a production planner who organises a forward weekly plan based on information from Cordina's production and sales departments. That plan is reviewed daily in advance and conveyed to Cordina's contract collection and transport company, Girraween Transport Pty Limited ("Girraween Transport"); the operators of Girraween Transport has been Cordina's contractor for over 30 years.

24. All pick-ups are done during night hours. The pick-up times vary according to the time of year, transport logistics, staffing levels and geographic locations. Usually, pick-ups commence by 8.30p.m. and conclude by about 4:00a.m.

25. Bird pick-ups are carried out during night hours, principally for animal welfare reasons. Birds need to be herded during the catching process and this task cannot be satisfactorily carried out during full daylight hours. In daylight, birds tend to pack, causing suffocation and bruising. In addition, chickens caught in hot weather conditions suffer from undue stress, again leading to deaths in both the catching process and in crates while the stock is awaiting processing.

30. At pick-up, the live birds are caught by hand and loaded into plastic drawers which in turn are inserted into a steel module which in turn are loaded onto a semi trailer. Each semi trailer carries about 22 modules or between 4,000 and 7,000, depending on chicken weight.

31. ... The system comprises steel modules which holds 12 large plastic drawers (3 x 4 high). These modules are side loaded onto semitrailers 2 high with 20-22 modules per trailer. The previous system (pre 1989) comprised 6 deck steel modules which were loaded from the rear of the semitrailer onto steel slides and shunted by the forklift to the front of the trailer. There were 14 steel modules per trailer. The pre 1989 system was operationally noisier than the current system due to the banging of steel crates and the forklift exertion noises (revving) in pushing the modules to the front of each trailer. Also, the forklifts in the 1980's were not acoustically treated as is now the case.

32. Girraween Transport is responsible for transport logistics, its staffing and on-farm pick-up operations.

59. Martin described the "procedure invariably followed by Girraween Transport Company" as follows (Exhibit M1 par 10):

(a) at some point during either the late afternoon or early evening, a prime mover delivers a semi trailer of 22 modules to the Property;

(b) a module comprises a steel frame with 12 moulded plastic trays, each of which holds about 45 kilos weight of chickens: if the weight of each bird is approximately 2 kilos, the tray would hold 24 chickens; with an increase in weight the number of chickens in each drawer will decrease;

(c) later a service truck comes to the Property. On the service truck is a fork lift and, typically, not less than 5 contract workmen, 4 of whom act as catchers of the chickens and 1 who is a licensed fork lift driver (collectively `the contractors');

(d) the contractors work at night time. The hours of work vary with the seasons. In winter catching and loading might start at 7:00p.m., whereas in summer catching may not commence until 10:00p.m., depending entirely upon weather conditions (usually daylight and heat);

(e) the contractors are paid according to the number of chickens caught and loaded; they are expected to load a semi trailer within 45 minutes;

(f) the chickens are caught, loaded into the moulded plastic trays which are in turn slid into the modules; the modules are then carried by fork lift from the growing sheds and loaded onto the semi trailer. A semi trailer can take between 6,000 and 7,000 birds depending upon individual weight;

(g) once a semi trailer has been loaded, the prime mover returns to collect it and deliver it to Cordina's processing plant at Girraween;

(h) ideally, shortly before the first semi trailer is towed away, the prime mover delivers a second semi trailer which would also be packed by the contractors; this process could occur 3 or 4 times, depending upon the number of chickens then required by Cordina;

(i) on completion of the packing and loading tasks for that pick-up, the contractors then move onto another farm;

60. As the court understands the current collection procedure at the Martin farm, the truck "noses" into the backyard area, turns there and waits while the birds are loaded, and then "noses" out again, once loading is complete.

61. The noise sources affecting Howarth, as a result of the Martin poultry operations, are the cooling fans, the collection truck, the forklifts, the catchers, and the chickens.

62. Various options advanced, during the hearing, for reduction of the noise generated by those sources include:

(i) Reduction at night (when not too warm) of the operating speed of the cooling fans.

(ii) Installation of sound-moderating blinds/shutters to cover the sides of the sheds, especially on the southern side of shed No.2, closest to Howarth's house.

(iii) Reduction of employee noise during pickup operations.

(v) Replacement of petrol forklifts by electric forklifts.

(vi) Suppression of prime mover noise (by relocating the collection operation to the rear of the sheds).

(vii) Noise control buffers or barriers between the Howarth and Martin properties.

(x) Using plastic rather than metal modules for moving chickens.

63. The court is satisfied that chicken collection activities must be carried out at night, and that, obviously, limits the scope of option (ix). (See pars 13, 37, 40, and 58).

64. Option (x) has apparently taken effect (see Exhibit M9, Exhibit M4 par 31, and Exhibit M2 par 28), and it would not be "feasible and reasonable" (see par 25) for Council or the court to insist on options (vii) or (viii) in all the circumstances.

65. Martin is happy to arrange his affairs so that:

(a) the cooling fans operate more quietly (option (i)), and

(b) the collection truck is loaded at the rear of the sheds (option (vi)).

66. He is also happy to install quieter "blinds" on his sheds, especially No.2 (option (ii)).

67. However, there are obvious difficulties in reducing the human noise levels (option (iii)), although reduction in the background noise during the collection activities will reduce the need for the workers to speak so loudly.

68. The court heard considerable evidence about forklifts, and I am satisfied that, although action can be taken to "silence" petrol forklifts to some extent (option (iv)), none of the currently available electric forklifts (option (v)) are suitable for use in poultry collection activities. (See especially evidence of King - Exhibit M16 and T.98-108 - but also Exhibit M4 pars 28-29, and Exhibit M2 pars 27-29).

69. Atkins measured noise levels at the 317/319 property boundary in January/February 2000. A collection was made overnight 9-10 February. The readings, on other nights, when there was no collection, ranged from 34 to 41 dB(A) (giving a Rating Background Level or "RBL" of 39) and reached 52 on the night of the collection. Using the Industrial Noise Policy procedures he arrived at a night-time ambient L Aeq of 43 (Exhibit M6 Table 1 p7).

70. In settling upon the appropriate noise reduction goals, I accept that the court should apply, in general terms, the Industrial Noise Policy, but the court has to decide upon the correct classification for the area where the farm is located - rural, urban, suburban, or urban/industrial interface.

71. The applicant argues for "urban/industrial interface", and Atkins gave evidence on that basis. That would allow for higher noise levels. However, this is a long-established rural industry (i.e. "existing" under the Policy), located next to a residence in an area of rural-residential living, which is zoned "scenic protection", and situated not far from an urban residential area (see Exhibit C8). A few poultry undertakings, even though two are on adjacent blocks, do not seem to me to be enough to take the area out of the "rural", or perhaps the "suburban", category (see again definitions in par 20).

72. Mr McEwen, for the Council, submitted that the "urban/industrial interface" classification is "totally inappropriate" in this case (T.7,L.25), it being designed to cover "situations closer into the development in the Campbelltown area", or in Sydney suburbs "which have had longstanding industrial sections up against urban development, like for example Botany" (L.32ff). I accept Mr McEwen's submission in that regard.

73. That being so, it follows that I prefer the evidence of Challis over Atkins, and regard the "amenity criteria [as] subservient to the intrusiveness criteria" (T.7.L.50ff - see also par 17).

74. In arriving at the most "feasible and reasonable" solution, I acknowledge that Martin has made important efforts to bring the noise level down, and is prepared, within reason, to do more, e.g. blinds/shutters. However, there is some disagreement between Challis and Atkins in regard to the likely effectiveness of such alterations to the sheds.

75. It has also been suggested by Mr Webster, for the applicant, that the court should take a different stance if Mr Howarth builds his new house where he proposes, because that location might result in complaints from him about noise from Shed No.1.

76. However, the court prefers to impose the appropriate noise reduction regime for the Martin operation, irrespective of Mr Howarth's preferred location for his new house, and allow some time to complete whatever works it may necessitate. This aspect of the matter was made somewhat more complex by Mr McEwen's preparedness to meet Mr Webster on it, but suiting only Mr Howarth raises the prospect of further complaints by neighbours not yet resident in the area. If the question comes down to where blinds/shutters should be fitted, the court believes they should be fitted to both sheds, not just No.2, and a reasonable time should be allowed for Martin to comply.

77. I have concluded that a limit of 5dB(A) above background, approximately 41dB(A), is reasonable. While I acknowledge Mr Atkins' pessimism about its achievability, such a night time night limit should be set by the Notice.

78. To achieve it "on the ground", Martin needs to embark further on a noise reduction programme, the details of which can be included as conditions of an amended Notice - i.e. the Notice should be amended generally in terms of Exhibit C5, and Exhibit M13 as amended by Exhibit C7, rather than Exhibit M15.

79. As the exhibits were prepared "on the run", amended during argument, and exhibit some inelegant expression, clear errors, and some inconsistencies, they should be returned so that the parties can agree upon the terms of an amended Notice which reflects these reasons for judgment and achieves the objectives I have set out herein.

80. It would not be "feasible and reasonable" for the Notice to require of Martin that:

(d) electric forklifts be used in preference to others_._

81. However, the court has concluded that it is "feasible and reasonable" that he be required:

(a) to alert nearest neighbours of collection dates,

(b) to endeavour to arrange collections for the early evening hours,

(d) to use the most silent suitable forklifts available,

(e) to reduce the operating noise of his cooling fans, especially at night (with some flexibility in high temperatures),

(f) to use his best endeavours to minimise human noise during poultry collection,

(g) to conduct poultry collection at and from the eastern end of his sheds, and in the area between them, and that truck movements, including turning, be arranged accordingly, so that reversing horns are not activated, and

(h) to ensure that plastic chicken trays and modules are used rather than metal ones.

82. It is also "feasible and reasonable" that the court require that:

(i) these improvements be effected by the applicant within, say, 6 months of the court's final orders in regard to the Notice,

(ii) they be incorporated into a Noise Reduction Programme submitted to Council by the applicant within, say 2 months of such final orders, and

(iii) the noise performance of the Martin farm and operations be subject to monitoring on a periodic basis.

1. The appeal stands adjourned for mention before me at 9.30am on Thursday 9 November 2000 for the purpose of making final orders.

3. The parties have leave to bring in on 9 November 2000 short minutes of order to reflect the reasons for judgment published on Friday 27 October 2000.

Environment Operations Act 1997

Meat Industry Act 1986

CITATION : Martin v Campbelltown City Council [2000] NSWLEC 228 APPLICANT PARTIES : James Alfred Martin RESPONDENT Campbelltown City Council FILE NUMBER(S) : 10986 of 1999 CORAM: Sheahan J KEY ISSUES: :- Class 1 appeal - Council's Noise Control Notice - Noise Reduction Programme - existing industry - poultry growing operations - Amendment of Notice - Industrial Noise Policy - "feasible and reasonable" requirements - reasonable time to comply LEGISLATION CITED: Protection of the Environment Operations Act 1997 Poultry Meat Industry Act 1986 CASES CITED: Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27 DATES OF HEARING: 11/07/2000, 12/07/2000 DATE OF JUDGMENT: 10/27/2000

In Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27 (" Sumar "), Talbot J held (on 15 February 2000) that, on appeal, this court has all the powers of the Council, including the power to vary the requirements of a notice, under s 264 of the POEO Act.

At a glance

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Judgment (121 paragraphs)

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Cases Cited (2)

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