Walker & Newton v Nymboida Shire Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97

DATES OF HEARING: 09/20/1999; 09/21/1999; 09/22/1999; 11/16/1999; 12/02/1999

DATE OF JUDGMENT DELIVERY: 12/15/1999

APPLCANT Mr P McEwen SC

SOLICITORS A J Gallagher LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios (Solicitor)

SOLICITORS Dunhill Madden Butler

JUDGMENT: IN THE LAND AND MATTER No. 10509 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 15/12/99

LINDSAY IAN WALKER, JOHN LAWRANCE NEWTON AND ANTHONY JOHN DENNY TRADING AS WALKER & NEWTON Applicant v NYMBOIDA SHIRE COUNCIL Respondent JUDGMENT

This is a class one application filed 26 July 1999 pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Lindsay Ian Walker, John Lawrance Newton and Anthony John Denny trading as Walker & Newton ("the applicants") appeal against the deemed refusal by Nymboida Shire Council ("the council") to development application no 123/99 ("the development application").

The development application lodged with the council on 16 April 1999 seeks approval for an existing sawmill ("the mill") to increase its yearly output from 2,500 m3 of sawn timber and timber products to 4,000 m3. The proposed increase in production does not require any increase in the site area.

The mill is located at lot 114 Orara Downs Lane Levenstrath. Under the provisions of the Nymboida Local Environmental Plan ("the LEP") the land occupied by the mill is zoned 1(b) general rural. The operation of a sawmill is permissible with consent.

The council employed an independent consultant, Mr Scott Lenton to assess the development application. His subsequent report recommended that conditional approval could be granted. The council has submitted proposed consent orders based on the 26 conditions formulated by Mr Lenton for incorporation in a development consent in the event that the appeal is upheld.

By Notice of Motion filed 17 September 1999 the Levenstrath Community Association ("the Association") sought leave to participate in the proceedings. In accordance with s 38 and s 39(4) of the Land and Environment Court Act leave was granted for the Association to have a legal representative at the proceedings and to adduce oral and expert evidence.

Following the conclusion of the hearing the Court requested the provision of further evidence and submissions on specific issues. The applicants and the respondent each provided additional statements of expert evidence. The Association responded with a written submission.

Expert evidence in relation to the development application has been adduced by both parties to the proceedings and the Association. The applicants engaged Mr Richard Crandon, an acoustical engineer who has completed two reports concerning the current noise impact of the mill and a supplementary statement in relation to the effectiveness of installing a noise barrier at the mill site. For the council, Mr Scott Lenton an independent development control planner provided a written assessment of the development application and also gave oral evidence. Following the directions of the Court on 16 November 1999 the council filed a supplementary statement by Mr Lenton clarifying aspects of the written assessment. Mr Greg Mashiah, a civil engineer retained by the Association provided oral evidence and has completed a report on the impact of traffic and noise issues in relation to the development application. Mrs Dianna Wade, President of the Association and nearby resident of the mill gave oral evidence.

The issues relate to the current alleged adverse impacts created by the operation of the mill, which may be exacerbated in the consequence of expanded production. Those effects are the generation of noise and dust.

The council's proposed conditions of consent are acceptable to the applicants. For the Association, Mr Mashiah testified that the proposed conditions are adequate to ensure that the development would not impact adversely upon the amenity of either the local environment or the local residents, save for two matters. The issues which cause Mr Mashiah concern are the amelioration of noise from the mill and the mitigation of dust generated by the heavy vehicles from the mill using Levenstrath Road and Orara Downs Lane.

On behalf of the Association Mrs Wade testified that local residents are not opposed to the operation of the mill provided conditions could be imposed that addressed their concerns. Mrs Wade's testimony and the objectors' submissions tendered by council emphasised noise from the mill and dust generated by heavy vehicles from the mill as being the major concerns of the residents. Since complaints have been expressed by several residents over a considerable period they are to be addressed.

The Noise Control Act 1975 ("the NC Act") does not provide a specific standard for the emission of noise from the mill since the mill is not a scheduled premises for the purposes of the NC Act. However, pursuant to Pt 5 Div 4 of the NC Act the council has issued a noise control notice in relation to the mill. One of the conditions of that notice requires the mill to operate to the noise emission standards prescribed by the Environmental Protection Authority of New South Wales ("the EPA") in their Noise Control Manual ("the NCM"). The NCM requirement provides that the maximum noise from the premises should not exceed the background level by more than 5 dB(A) when measured at any affected residence.

All the submissions made by the parties and the Association in relation to noise emissions from the mill proceed on the basis that the correct noise emission standard to be applied is that prescribed by the EPA in the NCM. In view of this concurrence and in the absence of any evidence to the contrary, the EPA standard as outlined in the NCM is adopted as the appropriate standard to determine the level of noise emissions from the mill.

The results of numerous noise tests were admitted into evidence. With the exception of the results of two tests, (which for reasons explained below must be doubted), all results reveal some degree of non compliance with the EPA standard. Generally the results showed that the mill at times operated from 6 to 7 dB(A) above background level. In addition to this empirical evidence, the testimony of Mrs Wade vividly described the intrusive and aggravating nature of the noise emissions from the mill.

The only testing results that found the mill to be operating in total compliance with the EPA standard were the noise level tests conducted on behalf of the applicants on 6 April 1999 and 20 May 1999 by Mr Richard Crandon. Mr Crandon's report contended that his noise test results concurred with the results of the EPA assessment. The results of the EPA assessment conducted on 15 June 1998 were annexed to Mr Crandon's initial report.

There is a weakness in Mr Crandon's assessment, because he established the background noise level for his testing whilst the mill was in operation. Mr Mashiah noted in his report and gave testimony to the effect that in accordance with the NCM the background noise level should be established with the mill shut down. The NCM defines background noise as; The ambient noise in the absence of the sound under investigation and all other extraneous sounds. 16. The results of the noise assessment conducted on the mill by the EPA on 16 February 1998 and tendered by the council establish that the background noise was calculated whilst the mill was not operating. Mr Mashiah confirmed that consistant with the NCM, the background noise would not be recorded accurately if the machinery of the mill remains in operation.

Mr Crandon did not therefore apply EPA testing techniques. Accordingly his assertions that the mill's operations were within EPA guidelines can be given no weight. Leaving aside the issue of testing techniques, the assertion that Mr Crandon's results and those of the EPA had parity is inaccurate. At no time during his testing did Mr Crandon record an average dB(A) of more than 5 dB(A) above background level yet the EPA results from the 15 June 1998 show on two occasions an average dB(A) of greater than 5 dB(A) above background level.

Evidence given by the EPA, Mr Mashiah and Mr Lenton confirms that the mill is capable of operating to the EPA standard. As currently operating the mill does not consistently comply with that standard. The development application seeks an increase in production capacity at the mill and as noted in Mr Lenton's report, additional machinery will be required to meet that aim. Accordingly, greater noise amelioration measures than those presently required by the noise control notice must be employed if consent is to be granted.

The conditions in relation to noise amelioration proposed by the council do little more than restate the requirements of the current noise control notice. As such they must be regarded as inadequate and unsatisfactory. Mr Mashiah testified that in addition to requiring all motorised equipment to be fitted with mufflers the most effective means of reducing the noise from the mill would result from the construction of a noise barrier 2.4 m in height ("the barrier") around the noise source. In a letter dated 20 August 1999 and tendered by the Association the EPA stated that the construction of such a barrier should reduce noise emissions from the mill site. The supplementary evidence from both Mr Lenton and Mr Crandon further supports this proposal

Mr Lenton testified that to obtain maximum noise amelioration, any barrier should be located as close as possible to the noise source but it should not be so close to the workings of the mill as to affect either its functioning or the safety of its workers. Both Mr Lenton and Mr Crandon agreed that the barrier should be located along the boundary of the area titled "the sawmill site" on the plan prepared by Walker and Newton which formed part of the development application. A copy of the plan showing the position of the sawmill site is annexed to this judgment and marked "B".

Mr Crandon proposed that the barrier should be constructed along three sides of the sawmill site but not along the southern boundary of such site. To provide no barrier at all along the southern boundary of the sawmill site would significantly undermine the effectiveness of the barrier especially if, in view of the NCM and the evidence of Mr Lenton, even gaps between the palings of the barrier would reduce its effectiveness. Mr Crandon did not provide any reason for the absence of a southern wall to the barrier. Mr Lenton's proposal for enclosure on all sides is to be preferred to ensure maximum efficiency of the barrier.

In accordance with the unchallenged evidence of Mr Lenton, the barrier is to be constructed from timber fence palings and built in such a way that the palings overlap, leaving no small gaps through which noise could escape. The gates of the barrier are to be constructed in the same manner as the barrier using identical materials.

Both the applicants and the respondent acknowledge that visual amenity of the area may be affected by the erection of the barrier and both have agreed that landscaping should be utilised to minimise such impact. Therefore the exterior boundary of the barrier is to be planted with native and locally occurring plant species. Such landscaping will have the added benefit that as the plants mature they may aid in noise attenuation.

The entrance to the mill is located on Orara Downs Lane approximately 600 metres south of Levenstrath Road at Levenstrath. Both Orara Downs Lane and Levenstrath Road ("the roads") are unsealed roads. The roads service local residents, the mill and a smaller mill known as the Lollback Mill. Levenstrath Road is controlled and maintained by the council. Orara Downs Lane is owned and controlled by the Department of Land and Water Conservation.

The traffic counts conducted on the roads by council, show heavy vehicles, that is vehicles classes three to nine, make up approximately 20 per cent of all traffic on Levenstrath Road and account for 34 per cent of total traffic on Orara Downs Lane. Using data supplied by the applicants Mr Lenton calculated that approximately four heavy vehicle movements per day would be generated by the mill. Using the same data Mr Mashiah came to the same conclusion. Statistically the heavy vehicle movements generated by the mill seem insignificant but they must be considered in context. According to the data supplied by the applicants, the majority of these type of vehicles are timber jinkers and both the council and the applicants acknowledge that these vehicles, driving on unsealed roads generate large amounts of dust.

Whilst Levenstrath is a rural area and generation of dust from dirt roads is expected, the oral and written evidence supplied on behalf of the Association establishes that dust generated by the mill trucks is having an adverse impact on the amenity of residents. In a letter to council on 19 July 1999, Mrs Betty Wilcox a resident of Levenstrath Road complained that the dust generated by the mill trucks rises so high above the road that it settles on the water in her water tank, thus contaminating her drinking water. On the hottest days she is forced to keep her windows and doors closed to avoid the dust stirred up by the mill trucks from permeating into her home. Mrs Wade testified that to stop the dust blowing on her freshly washed clothes, she only washes and hangs out clothes on Sundays, being the day the mill is closed. The evidence supplied by the council and the Association establishes that the experiences of Mrs Wilcox and Mrs Wade are not isolated incidents.

Both Mr Lenton and Mr Mashiah agreed that the development application if granted would result in an extra two heavy vehicles movements from the mill a day which would inevitably increase the current impact of dust upon the amenity of the Levenstrath residents. In this circumstance, approval for the development application will be contingent upon the provision of measures to mitigate the dust problem.

29. After receiving advice from council's road maintenance section, Mr Lenton calculated that a bitumen seal of the whole of Levenstrath Road would cost $200,000 It was Mr Lenton's opinion that such cost placed too onerous a burden on the applicant. He concluded that a partial sealing of Levenstrath Road would provide the best solution to reduce dust generated by the mill trucks. Mr Mashiah agreed that a partial sealing of the roads would significantly reduce the impact of dust.

30. The additional evidence supplied to the Court following the directions of 16 November 1999 establishes that the most efficient method to mitigate the dust problem is to require that portion of Levenstrath Road adjacent to a lot containing a residence which fronts Levenstrath Road to be sealed. Such seal should extend 100 m either side of the residence. This requirement would result in one continuous section of bituminous seal, approximately 980 m in length. The sealing would reduce the impact of dust to all residents along Levenstrath Road at an estimated cost of $10,800 excluding pavement preparation.

31. Subsequent to the directions of 16 November 1999, no written evidence was provided to the Court in relation to sealing Orara Downs Lane. In oral testimony Mr Lenton and Mr Mashiah agreed that a partial sealing, that is sealing 50 m either side of any allotment with a residence within 50 m of the road reserve of Orara Downs Lane would significantly reduce the impact of dust. To be consistent with the requirement for Levenstrath Road, that portion of Orara Downs Lane adjacent to any lot containing a residence which fronts Orara Downs Lane is to be sealed. Such seal is to extend 100 m either side of the residence. This condition of consent will apply only to allotments to the north of the entrance to the mill, since these are the only residences which are detrimentally affected.

32. To ensure the effectiveness of the partial sealing of Orara Downs Lane, the applicants will be required to seal along the frontage of lot 114 of DP 75 2810, (the mill site) extending 100 m each side of such allotment. In addition the maintenance requirements as outlined in the councils proposed conditions of consent shall apply to both roads.

33. The Court orders that: 1. The Appeal be allowed.

2. Development consent is granted for development application no 123/99 for the continued operation of an existing mill at lot 114 of DP 752810, Orara Downs Lane, Levenstrath subject to the conditions attached to this judgment and marked "A".

3. Liberty to any party including the objectors to approach the Court in the event that further directions or clarification in respect of any conditions is required.

Development Application No 123/99 - Conditions of Approval

The proposed development shall comply with the prescribed conditions as per clause 78A-78I of the Environmental Planning and Assessment Act Regulations.

This development consent shall lapse 3 years from the date of issue unless the proposed development is commenced prior to that date.

That portion of Levenstrath Road that is adjacent to a lot containing a residence which fronts Levenstrath Road is to be sealed for the distance of the residence extending 100 metres either side of such residence. This sealing is to be at the cost of the sawmill owner. The sawmill owner shall also pay for the seal to be maintained up to two times per financial year when requested by council. These works shall be completed in accordance with the dust sealing and pavement preparation procedures specified in AUSPEC ONE as adopted by Nymboida Shire Council. A contractor approved by council shall construct all works.

The sawmill owner shall pay for any sections of Levenstrath Road not dust sealed in accordance with condition no 3 to be re-graded up to four times per financial year when requested by council. These works shall be completed in accordance with the procedures specified in the ARRB-Unsealed Roads manual. A contractor approved by council shall construct all works.

That portion of Orara Downs Lane that is adjacent to a lot containing a residence which fronts Orara Downs Lane is to be sealed for the distance of the residence extending 100 metres either side of such residence. This condition applies only to lots to the north of lot 114. This sealing is to be at the cost of the sawmill owner. The sawmill owner shall also pay for the dust seal to be maintained up to two times per financial year when requested by the Department of Land and Water Conservation (the 'DLWC'). These works shall be completed in accordance with the dust sealing and pavement preparation procedures specified in AUSPEC ONE as adopted by the Nymboida Shire Council. A contractor approved by the DLWC shall construct all works.

Any sections of Orara Downs Lane not dust sealed in accordance with condition no 5 are to be re-graded up to four times per financial year when requested by the DLWC. These works shall be undertaken at the cost of the sawmill owner and shall be completed in accordance with the procedures specified in the ARRB-Unsealed Roads manual. A contractor approved by DLWC shall construct all works.

The bitumen surface and the table drain adjacent to the inside corners of the intersection of Levenstrath Road and Burragan Lane shall be made good. These works shall also be undertaken at the cost of the sawmill owner and shall be completed in accordance with the procedures specified in AUSPEC ONE as adopted by council. A contractor approved by council shall construct all works.

Noise emitted from noise generating machinery, equipment or motorised vehicles used in conjunction with the sawmill, shall not exceed a noise level of 5 dB(A) above background noise level when measured at any residential premises.

A noise barrier 2.4 metres in height is to be constructed along the boundary of the area marked 'sawmill site' on the plan of lot 114 of DP 752810 accompanying this development application and annexed to these conditions of consent marked 'B'. The barrier is to be constructed of timber palings in an overlapping method, so as to leave no gaps between the palings and is to include gates constructed in the same manner using the same materials as the barrier. The exterior boundary of the barrier is to be landscaped in accordance with condition 22 of these conditions of consent.

Mufflers shall be fitted to all noise generating machinery and equipment used in conjunction with the sawmill site.

The sawmill's hours of operation shall be between 7:00am to 5:00pm weekdays and Saturdays (except public holidays). No operation of the sawmill will be permitted on Sundays, except the collection of firewood using light vehicles.

All articulated vehicles shall only access and egress the sawmill compound during approved hours of operation.

Loading and unloading activities shall be undertaken wholly on the subject land.

The area to be occupied by the sawmill shall be consistent with the 'Sawmill Site' indicated on the plan titled, 'Location of Sawmill Site Orara Downs Lane Levenstrath' prepared by Walker & Newton, April 1999 and submitted to council in support of development application no:123/99. Such plan is attached to these conditions of consent and marked 'B'. Nothing in this condition, prevents compliance with conditions no 15 and 16.

The existing sawdust screen structure and sawdust stockpile shall be relocated to be at least 20 metres from the front boundary. Sawdust shall be kept on the eastern side of the sawdust screen.

Any deposition of sawmill waste, except within the sawmill compound or on the stockpile on Lot 114 to the south-east of the sawmill compound, requires prior written consent from council. Any waste from the firepit (being ash, soil and wood) shall only be used for agriculture and landscaping when used on land other than lot 114 of DP 752810.

The sawdust generated by the sawmill activities and discharged by pipe or other means to the sawdust stockpile shall be discharged in a manner that reduces the escape of sawdust onto adjoining land, especially the Orara Downs Lane road reserve.

The construction and management of the fire and fire pit shall comply with clause 20 of the Rural Fire Act Regulations.

All iron sheeting and other refuse (except existing sawdust) shall be removed from Orara Downs Lane road reserve adjacent to the sawmill.

An impervious bund shall be constructed around the base of the fuel storage tank stands. The bunding shall have a minimum volume of 110% of the largest tank. No additional fuel storage can occur on the sawmill compound without the written consent of council.

No clearing of trees shall occur on the sawmill compound, except dead trees or dead tree limbs.

Any landscaping works carried out on the subject sawmill compound after the date of this consent notice shall utilise native and local naturally occurring plant species from within 500 metres of the sawmill compound.

That all employee and business vehicles shall park wholly on the sawmill compound.

Separate written consent from council will be required for additional machinery or saws before their active use. This does not limit the use of the twin-edging machine on the sawmill site provided the sawmill owner provides council with final details of its location prior to its use. All new or additional machinery and equipment shall comply with the noise emission requirements in condition no. 8.

The intended capacity of this sawmill shall not exceed 4,000 cubic metres of sawn timber or timber products per annum without separate development consent being obtained. By-products or waste from the milling of sawn timber products, including but not limited to fire wood and sawdust are not deemed to be 'sawn timber or timber products'.

The sale of by-products of the proposed sawmilling business, for example firewood, sawdust and other wastes, is permitted from the subject land.

This consent notice shall not take effect until such time as the sawmill operators surrender or revoke Development Consent No 31/96.

29. The capacity of the sawmill shall not exceed 2,500 cubic metres of sawn timber or timber products per annum and condition no 25 shall not become operable until the sawmill owner has complied with conditions no 3, 5, 7, 9, 10, 15, 19, and 20 of these conditions of consent.

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.