Sumar Produce Pty Ltd v Griffith City Council

Land and Environment Court (NSW)|1999-09-01|Before: Talbot J, Mrs J

These proceedings have been commenced by way of an appeal against a noise control notice given pursuant to s 264 of the Protection of the Environment Operations Act 1997 (the PEO Act).

The original notice was issued by council on 1 September 1999 and varied by a second notice on 29 November 1999.

In a preliminary judgment delivered on 15 February 2000, I determined that the document dated 1 September 1999 as varied on 22 November 1999 was a valid notice pursuant to s 264 and s 266 of the PEO Act.

The notice prohibited the applicant from causing, permitting or allowing a frost control fan erected on the applicant's land to operate in such a manner as to cause the emission from the premises of noise above the level specified during "Night time", defined as between 22.00 hours and 07.00 hours weekdays and Saturdays or between 22.00 hours to 08.00 hours Sundays and public holidays.

The maximum noise level is specified as follows:- The background noise level (L A90, 15min ) is to be no more than 40dBA when measured at any neighbouring residential property. In addition, to prevent sleep disturbance, the upper percentile noise level (L A1, 1min ) must not exceed 45dBA when measured at a point 1 metre from any neighbouring residential bedroom window.

The noise measuring point is defined as a point approximately 3.5 metres from any neighbouring dwelling and a point approximately 3.5 metres from any neighbouring residential bedroom window.

A frost control fan is a device used to disperse cold air away from sensitive crops during freezing weather conditions, generally at night, particularly in the earlier hours of the morning.

The applicant purchased the subject "Orchard-Rite Wind Machine" during 1999.

The applicant's property, located on McCarthy Road in a locality known as Lake Wyangan, north of the City of Griffith, consists mainly of a citrus orchard and a packing shed operated by members of the Brighenti family. The land is within zone 1(a) Rural (General) under Griffith LEP 1994. Agriculture is development which may be carried out without consent in the zone.

The wind machine is comprised of two solid fibreglass fan blades installed on a mast approximately 10 metres high.

The blades are driven by a gas fuelled engine through a series of gears which cause the blades to rotate and the head to oscillate. With an engine speed of 2300 RPM, the two blades rotate at 590 RPM.

During a frost condition the ground temperature and temperature of air adjacent to the ground reduces to a temperature which is lower than the temperature at a higher level. The frost control fan circulates or moves the air adjacent to the ground, thereby preventing the freezing of the fruit in the orchard. Air is drawn downward from the warmer layer in the atmosphere.

The noise generated by the rotation of the propeller like blades has been likened to that of an aircraft, more significantly, a helicopter.

The Court has been told that as the air passes over a blade, the aerofoil shape of the blade forces the air in a direction perpendicular to the direction of the movement of the blade. At the trailing edge of the blade the air tends to curl around to form what are known as vortices. As these vortices get to a critical size, they break away from the blade and another begins to form. It is the action of vortex shredding that creates the noise.

The applicant claims that the prevention of frost damage is critical to producing fruit at export quality. Frost damage is not necessarily discernible by external examination of the fruit.

The applicant's farm is an area that was originally developed for the purposes of horticulture and small mixed irrigation farms with typical allotment sizes of about eight hectares.

In the last eight years rural lifestyle residential development has been established north of the McPherson Range (which separates the subject land from the urban area of Griffith) along Mallinson Road and on adjacent areas east of the Wyangan Lakes. These developments are generally on large residential allotments.

The council claims that the total number of dwellings with a potential to be affected by the operation of the frost fan will be 170.

Council is currently undertaking the preparation of a growth strategy document to cater for population growth over the next 30 years. The Lake Wyangan area is seen as an important part of the planning strategy as a residential precinct for larger allotments. The Land Capability and Suitability Study for Periurban Development in the Lake Wyangan Catchment foreshadows that a change in land use from agriculture and horticulture to periurban development should produce positive outcomes for sustainable development.

Accordingly, the agricultural use of the applicant's land has the potential to conflict with the creeping urban development outside Griffith.

The concerns of Griffith City Council in this respect are manifest in its sponsorship of a successful motion to the Shires Association, recommending that approaches be made to the State Government to recognise and incorporate the right to farm as a legitimate existing rights principle and that this be done by an amendment to the Environmental Planning and Assessment Act 1979 or by the introduction of specific legislation. The motion in its original form before amendment referred to a review of the "Protection of the Environment" legislation.

The applicant originally lodged a development application for consent to the erection and use of the frost control fan but nevertheless built it without consent following legal advice that consent was not required.

The noise control notices issued by council were a reaction to objections lodged following exhibition of the development application and complaints received by council as a consequence of the operation of the fan.

Council officers initially carried out a noise level survey. Following this survey, Mr Kenneth Scannell was engaged as a professional acoustical consultant.

Mr Scannell carried out a Noise Assessment of the operation of the wind machine in August 1999.

Mr Scannell concluded in his August report that at neighbouring properties the measured noise level (L A10, 15min ) exceeded the background (L A90, 15min ) by 21 dB to 29 dB. He also concluded that the wind machine increased the background noise level (L A90 ) by 13 dB to 21 dB to levels of 43 dBA and 51 dBA. He noted that these levels exceeded the existing EPA criterion by 3 dB to 11 dB. The opinion expressed by Mr Scannell to council was that noise at two adjoining properties was offensive, likely to be a nuisance and likely to cause sleep disturbance. He recommended that the noise level be reduced to meet the current and future EPA noise criteria.

An initial noise control notice dated 19 August 1999 was withdrawn for technical reasons.

Following the issue of a further notice on 1 September 1999, the applicant lodged the present appeal. The notice in its original form prohibited the use of the fan seven days a week, 24 hours a day, when the maximum noise level measured from the boundary of the applicant's premises exceeded 40 dBA.

Following legal advice and further advice from council's noise consultant, a variation of the noise control notice was served upon the applicant on 29 November 1999. The variation of the notice was intended to specify more clearly the restrictions council wished to impose upon the operation of the frost fan.

Following exhibition of the development application during April 1999, the council received 20 submissions, 13 of which objected to the development. The main issue of concern was the noise impact of the frost fan.

Following erection of the fan and its operation, council received numerous written complaints and 12 telephone complaints, together with a petition bearing a large number of signatures. In addition, letters in support of the operation of the fan were received by council.

Written statements by many of these interested people have been tendered and supplemented by oral evidence. Although some nearby residents may feel justified in holding a concern that the frost control fan has a real potential to disturb their residential amenity, particularly at night, it has become necessary for the Court to weigh this evidence carefully as in almost every case there is a suggestion that there could be an ulterior motive for the objection. It is a question of the weight that the Court should give to the objection, not necessarily that they should be rejected.

It is obvious to the Court that the issue of the operation of the frost fan has created a rift in the community. On the one hand there are those residents who are seeking a rural residential lifestyle on large allotments where little or no agricultural activity is carried out. On the other hand there are farmers and growers who seek to maintain the traditional use of the land for agricultural purposes. The agricultural pursuits are generally intensive, involving the use of machinery during the day and throughout the night. Typical types of machinery which give rise to elevated noise levels are irrigation pumps, overhead sprinklers, air blast sprayers, tractors and bird scare guns.

It is not necessary in a judgment such as this to impugn the credit of any individual witness, thereby further contributing to an already inflammatory situation. However, the Court finds that many complaints have been exaggerated as a consequence of a history of antagonism between the Brighenti family and various individuals for personal or commercial reasons. In one case personal relationships have deteriorated to the extent that competing apprehended violence orders have been taken out in the Local Court. It is suggested that other complainants have an interest in restraining intrusive agricultural activities in order to maintain the potential value of their land for residential development.

The Court recognises that the nearest neighbours have been responsible for inciting complaints and submissions about the fan from people who either have no real complaint or would not have otherwise objected.

There are instances of political grandstanding, family disputes and professional jealousy. Fears have been heightened by the spread of unsubstantiated rumours and exaggerated claims about the prospect of further fans being allowed to operate in the area.

The above having been said, nevertheless, the Court recognises that the frost control fan has a real potential to cause disruption while it is operating. The extent of actual interruption to sleep can vary with the individual and it is accepted that the fan may operate on successive nights, according to weather conditions.

The nature of the noise has been likened to a helicopter hovering outside the bedroom window. Although the noise has the characteristic of a helicopter or a prop driven aircraft, in the Court's view it is unlikely to equate to an aircraft in such close proximity. A significant number of people have stated that they are not troubled by the noise of the fan. Nevertheless, there is evidence of disturbed amenity and loss of sleep which needs to be addressed.

The Court does not discount the evidence of individual complainants but proposes to rely more heavily on the expert evidence.

Griffith is in an area which is highly dependant on farming for maintaining the prosperity which it currently enjoys.

The applicant's justification for the use of the fan is the commercial imperative of meeting the strict demands of the export market for fruit free of frost damage. The growing of Valencia oranges for the production of juice is said to be no longer economically viable as a consequence of competition from imports. Growers are being forced to concentrate on new products which satisfy a demand from overseas markets. Over the last seven years the applicant has developed plantings of navel oranges and a patch of Murcott mandarins for the fresh fruit market.

Mr Louis Revelant is a citrus specialist with the Department of Agriculture. He identifies the existence of interface problems between the urban and rural communities surrounding Griffith over many years. The role of the department in this conflict is to encourage farmers to remain viable in a competitive market by the use of initiatives to limit frost damage. As the urban population of intensive agricultural areas continues to rise, these interface problems are likely to get worse unless stringent planning regulations are put in place to protect all parties.

Insurance against frost damage is not available to horticulturalists due to high risk exposure.

Various means of dealing with frost damage have been tried, including smoke pots, blast spraying of water and a hovering helicopter. The latter two methods are reported to produce significant noise impacts.

The industry generally suffered severe losses from frost in 1998 when the loss of revenue from the US market alone was $US1,259,296. There were further losses in other markets in addition to the US and of marketing, packing and freight charges.

The Court has been told that research indicates the temperature at which frost is likely to cause damage to citrus crops is -0.9 degrees Celsius.

Official records kept by the CSIRO show that based on temperatures taken between 1962 and 1999, the average nights per annum that the temperature is likely to reach this point is ten (10).

The expectation is that the temperature at the applicant's farm will on average be 1.1 degrees Celsius lower. In 1999 the CSIRO records, corrected by 1.1 degrees Celsius, show that the temperature at the subject property would have reached -0.9 degrees Celsius on 21 nights.

Brian Alexander Simpson, the Executive Officer of the MIA Citrus Fruit Promotion Marketing Committee, who holds some relevant academic qualifications recommends that the frost fan operate when the temperature reaches -1 degrees Celsius.

Other opinions are that the machine should be started at -2 degrees Celsius and stopped at -0.5 degrees Celsius for the protection of mature orange fruits.

Mrs Brighenti told the Court that she had received advice from the Department of Agriculture that -2 degrees Celsius is the critical temperature for the occurrence of damage to fruit. The adoption of -0.9 degrees Celsius is to provide a buffer zone.

The evidence of the nearest neighbour, Mr Stoll, is that the fan operated on 26 nights during the 1999 winter.

There is a prospect that refinements can be introduced to the control mechanism on the fan including placing a cover over the digital temperature recorder, thereby reducing the time of operation.

After taking into account socio-economic factors, the nature of the applicant's business activity and the number of people likely to lose sleep from the operation of the frost control fan, Mr Scannell decided to set a criteria for a 90 percentile noise level (L A90, 15min ) of 40 dBA as a reasonable compromise.

The reason the L A90 descriptor was included was to simplify the measurements. Having regard to the expected number of nights when the frost control fan would operate during a year, no extra allowance for its non-continuous operation is made by Mr Scannell.

The criteria adopted by Mr Scannell is for an outside measurement because of the difficulties in measuring inside levels in a way that facilitates operator awareness.

Noise measurements were carried out by Mr Scannell over two consecutive nights. At the nearest residence (Stoll), the L A90, 15min was measured at 51 dBA (56 dBA L Aeq, 15min ) with the fan on and below 30 dBA (50 L Aeq, 15 min ) with the fan off.

At 90 Old Aerodrome Road (Tyndall), the noise level with the fan on was 42 dBA L A90, 15min (52 dBA L Aeq, 15min ). This compared to a level of below 30 dBA L A90, 15min (37 dBA L Aeq, 15 min ) with the fan off.

Mr Scannell referred to a draft South Australian EPA Technical Bulletin for the Assessment of Noise from Frost Fans prepared by Marco Ciccozzi, Senior Adviser Noise and the NSW EPA Industrial Noise Policy, for some guidance in setting criteria. He did not find either of these documents particularly helpful and preferred to rely on his own professional experience as the South Australian policy is only in draft form and the New South Wales policy is not directed to the particular circumstances of the present case.

The applicant's noise consultant, Christopher Paul Turnbull, explained that the NSW EPA Environmental Noise Control Manual (which has recently been replaced by the NSW EPA Industrial Noise Policy) referred to Australian Standard AS2107 which provides recommended design noise levels for building interiors set on parameters other than sleep disturbance. In Chapter 19, the manual recommends that noise controls should be applied with the general intent to protect people from sleep arousal. To achieve this, the L 1 level of any specific source should not exceed the background noise level by more than 15 dBA when measured outside the bedroom window. Mr Turnbull says he is not aware of any research that connects external noise levels with sleep disturbance.

Mr Turnbull also refers to the NSW EPA Industrial Noise Policy which identifies a recommended L Aeq noise level from industrial noise sources in rural amenity areas at night of 40 dBA as being acceptable and 45 dBA the recommended maximum. A rural area is identified as an agricultural area, except those used for intensive agricultural activities. Unfortunately there is no definition of intensive agricultural activities and no level has been set for an area incorporating these activities.

Mr Turnbull states that many studies have been undertaken to try to give some indication of the noise level inside a bedroom that could result in sleep disturbance. These noise levels range from 30 to 45 dBA for equivalent noise levels and upwards from 45 dBA for maximum noise levels.

Mr Turnbull recognises that it is normal practice when considering internal noise levels from an external source to assume that windows may be partly open. However, he suggests that, as frost control fans operate only during frost conditions, it is likely that bedroom windows will be closed at that time.

Like Mr Scannell he refers to the South Australian Environment Protection Authority Interim Guideline for Noise from Frost Control Fans. Mr Turnbull quotes the criteria from the interim guideline as follows:- Frost fans should not be used if the measured noise level of the fans, when measured as L Aeq exceeds the background noise level by more than 5dB(A) AND when measured as L Aeq exceeds the prescribed outdoor criterion level in the following table. If the outdoor criterion level cannot be met then the indoor criterion level may be used. Location of affected premises Outdoor criteria Indoor criteria L Aeq L Aeq Noise sensitive zone 45 dB (A) 25 dB (A) Any other zone 55 dB (A) 35 dB (A)

The South Australian document is only in draft form. In a memorandum dated 4 January 2000, Mr Ciccozzi explained to Mr Turnbull that the indoor criteria represents a range 5 dBA below that recommended by sleep disturbance studies which vary in their findings, with a maximum indoor level in the range of (30-40) dBA. This range has been chosen because the sleep disturbance studies are not specifically related to modulating and impulsive noise sources, such as frost fans. Noise from sources such as frost fans is more annoying than bland, steady, state noise. Mr Ciccozzi goes on to say that in addition to this, the studies recommend that lower noise levels (ie stricter criteria) should apply to rural areas because of their lower background noise level.

Mr Scannell had a private communication with Mr Ciccozzi on 5 March 2000, when Mr Ciccozzi explained "I perhaps did not stress enough the point that the EPA prefers outdoor measurements" . Mr Ciccozzi added that indoor measurements are only to allow the possibility of the fan operator offering an upgrade in the insulation of the affected residences.

It is clear from the above evidence that the criteria for the assessment of noise impact from frost control fans is not settled. So far as the evidence in this case goes, the question is not addressed in any official documents produced in New South Wales.

Mr Turnbull is unable to accept that sleep arousal criteria can be based on anything other than internal measurements in the individual case, whereas Mr Scannell maintains the heretofore standard line that outdoor measurements are the only acceptable criteria.

Mr Turnbull contends that the background L 90 noise level of a frost fan is not a descriptor that can be used to represent the level of annoyance or sleep disturbance from the fan. He opines that it would be possible to turn off the fan for approximately two minutes in every 15 minutes to achieve this criterion. In answer to this criticism Mr Scannell relies on what he says is the good co-relation between the L A90 descriptor and the other descriptors, which means that either descriptor can be used to represent the level of annoyance or sleep disturbance from the fan. The criterion would need to take into account which descriptor is used, for example, a criterion of L Aeq 45 dBA would be equivalent to a criterion of L A90 40 dBA.

Mr Scannell further says that if an internal noise criterion is to be set, there are two options if the noise cannot be measured directly; either to calculate or estimate the internal level. Calculations for internal noise are complex and require detailed knowledge of the building structure. If Mr Turnbull's estimate of a noise reduction of 24 dBA to 28 dBA from the external noise measurement with the windows closed is accepted, then an external noise criterion 24 dBA to 28 dBA higher can be set. If it is assumed the windows will be open, then Mr Scannell says the assumed noise reduction will be about 10 to 12 dBA.

On the other hand Mr Scannell says that if the Court is satisfied an indoor criterion is preferred, it should be as required by the South Australian EPA Draft Technical Bulletin, namely, an L Aeq of 25dBA with a maximum L Aeq of 30 dBA. In the light of the whole of the evidence, Mr Scannell in cross-examination indicated he would be prepared to accept the South Australian criteria of 45 dBA L Aeq as the appropriate outdoor criteria for each of the six nearest residences.

Although Mr Turnbull would have preferred to take actual measurements inside the relevant dwellings other than the house owned by the applicant and in which the Brighenti family lives, he says that he has attempted to provide the means of determining the level of disturbance to enable the Court to decide whether or not an appropriate level should be set and if so whether that level is sufficient for the purpose of a noise control notice. Ultimately he had no objection to the South Australian criteria of 55 dBA outside and 35 dBA indoors on the basis that none of the premises are located in a noise sensitive zone.

Using Mr Turnbull's estimate for a reduction of the outside noise levels measured by Mr Scannell at the Stoll residence and 90 Aerodrome Road, gives a projected inside noise level of 28 to 32 dBA L Aeq for the Stoll residence and 24 to 28 dBA L Aeq for 90 Aerodrome Road.

Although the external criteria set by the draft guideline in South Australia may not be met, the adjusted levels, allowing for attenuation inside the dwelling, will be satisfied if Mr Turnbull's evidence is accepted.

Following an adjustment on the assumption the windows are open, the estimated internal noise level could be between 40 and 44 dBA.

In either case the external levels will fall internally to within the range of 30 to 45 dBA equivalent noise levels which Mr Turnbull says could result in sleep disturbance.

Mr Turnbull was forced to estimate internal levels for dwellings other than the subject property, because access to those dwellings was denied. Mr Scannell did not measure internal levels or if he did they are not disclosed. In the absence of any acceptable explanation for this omission, the Court is entitled to infer that the actual measurement of internal levels would not have assisted the council's case. Even though Mr Scannell insists that the appropriate criterion is the external level, he and the council nevertheless should have been aware that the applicant would seek to rely on the impact of noise levels within individual bedrooms.

Furthermore, Mr Scannell, in a report to council in August 1999, made observations about his subjective assessment of noise levels inside the bedrooms of the Stoll residence and contemplated that noise control measures could be introduced, such as double glazing and insulation at all affected residences.

Mr Turnbull furnished Mr Scannell with the information he relies upon in regard to actual measurements of noise from frost fans taken inside two bedrooms.

One set of measurements is taken from the operation of a frost fan in Gawler, South Australia. The other set is taken from within the Brighenti residence on the subject property, approximately 200 metres from the fan in question.

The level of reduction of the external noise deduced from these measurements is in the range of 24 to 28 dBA L Aeq .

The measurement in the Brighenti bedroom nearest to the fan was 33 dBA L Aeq . The external measurement for the Brighenti property at midnight was 57 dBA L Aeq , which compares to 56 dBA L Aeq measured by Mr Scannell at the Stoll residence.

Given that the issue of the impact of the frost fan on noise levels is critical within individual bedrooms, the Court is left with two options if it decides to set criteria for the operation of the fan.

The first is to adopt criteria based on an external noise level, assuming a reduction for attenuation through the facade of the average house to a range below the level of sleep disturbance. The second is to set an internal noise level.

The second option does not appear to be practical in circumstances where, as in this case, the buildings are private dwellings and access for the operator of the fan is, almost certainly, to be denied.

The first option involves a high degree of speculation based upon the location of each of the affected bedrooms relative to the fan and the structure of the dwelling.

The level of noise that causes sleep disturbance or arousal is highly subjective. Whatever level is set, either externally or internally, it may still cause irritation to particularly sensitive persons. There is evidence in this case that some individuals in one household have suffered sleep arousal during the fan operation while others in that same household have not been disturbed.

In the Court's opinion, the noise control notice under appeal does not resolve the dilemma.

The following table is a summary of the relevant quantitative evidence of actual noise levels and estimates at various locations within the locality of the subject frost fan and in South Australia.

Residence Distance Measured external Measured internal Estimated internal Brighenti 210 57 LAeq Bedroom (1) 29 LAeq Bedroom (2) 33 LAeq 56 LAeq 27-32 Leq 62 L1 33-38 Lmax Stoll 230 58 Leq 30-35 Leq 61 Leq 35-40 Lmax 51 LA90 Aloisi 340 51 Leq 30-35 Leq 53 Leq 35-40 Lmax Catanzariti 393 52 Leq 30-35 Leq 56 Leq 35-40 Lmax 49 Leq Tyndall (90 Aerodrome Road) 450 57 L1 21-28 Leq 52 LAeq 28-36 Lmax 42 LA90 Beltrane 770 45 Leq <26 Leq 47 Leq 30-35 Lmax Gawler, SA Residence (A) 600 55 LAeq 28 LAeq Gawler, SA Residence (B) 700 54 LAeq 29 LAeq

The estimated internal levels are made on the assumption that the windows will generally be closed during frost conditions at night.

The actual measurements taken show that external levels as high as 58 L eq and 57 L Aeq will not result in a breach of the accepted internal criteria for sleep arousal where the windows of the room are closed. These results are corroborated by readings of 55 and 54 L Aeq obtained in South Australia for external levels derived from the operation of a frost control fan.

The applicant has made an offer to facilitate the insulation of double glazing at the Stoll residence. The implementation of that offer is beyond the scope of a noise control notice.

Mr Turnbull is prepared to adopt the SA draft guidelines for a zone which is not noise sensitive, namely 55 dBA L Aeq , outside and 35 dBA L Aeq indoors. This land is located in and surrounded by other land within the 1(a) Rural (General) Zone where agriculture is development which can be carried out without development consent. It is not an area comprising large holdings used for grazing or other passive agricultural activities.

Whether or not residential development intensifies in the future following rezoning of the area is clearly a matter for the future. The noise control notice the subject of this appeal deals with the present and immediate future.

Pursuant to s 39 of the Land and Environment Court Act 1979, the Court determines that in accordance with s 264 of the PEO Act, any noise control notices given in writing to the applicant prohibit the company from causing the frost control fan, erected on Farm 1876, Boorga Road, Lake Wyangan, to be operated in such a manner as to cause the emission from the premises between the hours of 22.00 hours and 07.00 hours on any day, of noise that when measured at a point one metre from any residential bedroom window outside the subject property is in excess of 55 dBA L Aeq .

The parties are given leave to bring in short minutes to give effect to the Court's decision.

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.

Environment Court Act 1979

Environment Operations Act 1997s 264, s

Planning and Assessment Act 1979

CITATION : Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 72 APPLICANT: Sumar Produce Pty Ltd PARTIES : RESPONDENT: Griffith City Council FILE NUMBER(S) : 10705 of 1999; 11121 of 1999 CORAM: Talbot J KEY ISSUES: Appeal from Administrative Decision :- noise control notice - appeal - setting of appropriate levels for frost control fan on agricultural land LEGISLATION CITED: Land and Environment Court Act 1979 s 39 Protection of the Environment Operations Act 1997 s 264, s 266 CASES CITED: DATES OF HEARING: 24/03/2000, 27/03/2000, 28/03/2000, 31/03/2000 DATE OF JUDGMENT: 04/11/2000

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