21 Dr Tonin adopts a different approach. In accepting that the INP applies, he states that to provide a realistic understanding of background noise levels it is appropriate to conduct noise readings at a time when the school was not operating, but when other public schools in the area were operating. Importantly, this would allow the background noise levels to include traffic noise. As a time that allowed these two events to occur simultaneously was impractical, Dr Tonin undertook noise readings from the Respondent's property during the operation of the school, however excluded those times when the children were not in class, that is at recess and lunchtime. In Dr Tonin's opinion, there were sufficient gaps during the four school days he undertook the noise readings to allow a proper assessment of the background noise level by excluding those times when the children were outside. This could be undertaken with some certainty given his attendance at the time of the noise surveys. He also stated that this had the additional benefit of being at a time when the Respondent's objections were made, that is directly before and directly after outside activities by the schoolchildren and that occasional noise sources, such as pupils walking between buildings, did not influence the LA90 measurements.
22 Dr Tonin further states that a further acoustic report prepared by Vipac, for a current development application with the school also that concluded that the background noise level was 42 dB(A) LA90. The VIPAC report was prepared for a development application for conditions to the school, located directly north of the dwelling used by the principal. The data logger placed on the kindergarten lawn recorded noise levels on five days, four when the school was in session and one day of holiday (which overlapped with the first day of the period assessed by Mr Cooper). According to Dr Tonin's summary of this data, it showed a median of 43.8 dB(A).
23 Based on his assessment approach, and confirmed by the Vipac report, Dr Tonin adopts a level of 42 dB(A) LA90.
24 The disagreement between Mr Cooper and Dr Tonin centres on the following:
· measurements of noise during the operation of the school relied upon by Dr Tonin,
· the potential for existing construction noise to influence noise measurements on data relied upon by Dr Tonin, and
· the effect of rain on noise measurements on data relied upon by Mr Cooper,
· the effect of wind speed on the data relied by Dr Tonin.
25 The reliance of Dr Tonin on measurements of noise during quiet periods when the school was operating was seen by Mr Cooper is being inconsistent with the provisions of the INP, specifically where it states that "the background noise levels to be measured are those that are present at the time of the noise assessment and without the subject development operating" (cl 3.1). Further, Mr Cooper states that at the time of the site view where Dr Tonin indicated the typical time that he conducted his noise measurements during the operation of the school, he noticed noise being generated from mechanical plant within the school. While acknowledging that the plant was likely operating at the appropriate noise criterion, it was a noise that could potentially affect the noise readings of Dr Tonin.
26 Dr Tonin carried out noise measurements to establish the background level with unmanned data loggers between 30 July 2009 and 14 August 2009. Dr Tonin also carried out noise measurements using a manned data logger on the 30 July 2009, 31 July 2009 3 August 2009, 6 August 2009 and 7 August 2009. In his opinion, the results are consistent and support his background noise level of 42 dB(A). Concern was expressed at the influence that construction noise would have on the readings however we accept that this is adequately compensated in the manned data logger readings where Dr Tonin deleted any readings that he considered would influence the noise readings. The Court accepts that the consistency between the two types of noise readings around the same time support the conclusions of Dr Tonin.
27 Dr Tonin raised concerns over the impact of rain on the noise readings of Mr Cooper. Dr Tonin provided details of rain from the Bureau of Meteorology at its closest measuring site at Homebush to suggest that there was sufficient rain to influence the noise readings however Mr Cooper stated that he had been advised by the Respondent (where the data logger was located) that no rain occurred notwithstanding the report of the Bureau of Meteorology. This matter remained in dispute between the parties and, in my opinion, is not a matter that necessarily affects the principal matter to be determined by the Court.
28 The data provided by Dr Tonin on the potential impact of wind on the noise measurements was challenged by Mr Cooper on the basis that the adjusted figures (from the record height of 10 m to a 1.5 m height that responds to the appropriate noise measurement height) were inconsistent.