Crowther v The State of Queensland [2008] QPEC 79

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v The State of Queensland [2008] QPEC 79 PARTIES: CLAIRE CROWTHER (Applicant) v THE STATE OF QUEENSLAND (Respondent) FILE NO/S: 1556 of 2008 DIVISION: Original PROCEEDING: Application for “restraint order” ORIGINATING COURT: Planning & Environment Court DELIVERED ON: 27 October 2008 DELIVERED AT: Brisbane HEARING DATE: 16, 25 September 2008 JUDGE: Robin QC DCJ ORDER: Restraint order to be made CATCHWORDS: Environmental Protection Act 1994 s 15, s 440, s 505— Environmental Protection Regulation 1998—application for order limiting noise emissions from airconditioning equipment including compressors on respondent’s site— multiple sources of such noise— whether “an offence against this Act” proved, to create jurisdiction—offence either by way of environmental nuisance or by exceedance of limits for airconditioning equipment noise in the Regulation—court without jurisdiction to deal with common law nuisance claim COUNSEL: Applicant appeared in person E Morzone for Respondent SOLICITORS: Crown Law for Respondent [1] Before the court is an originating application by which the court is asked to order: “Yeronga TAFE/Skills Tech Australia/Metro South to comply to EP Act 1997 Noise Policy and Regulations and as such no mechanical including airconditioning noise to cause nuisance 10pm – 7am, 7am-10pm at the property 41 Park Road, Yeronga, Brisbane, Queensland.” -- 1 of 26 -- 2 [2] The protagonists have met in the court before. See Crowther v State of Queensland [2003] QPELR 346, a similar application in respect of odour and particulate emissions. The applicant enjoyed some success, but encountered serious difficulty in seeking “appropriate penalties for contempt” for alleged non-compliance with this court’s order (which she may face again, even if successful here), given the identity of the respondent: see Crowther v State of Queensland [2006] QCA 308. [3] It may be seen in retrospect as a curious decision to locate an industrial and trade training centre focusing on practical training immediately across a narrow street from long-established residences, one of which is the applicant’s. In large measure, it would appear, the most problematic activities have been relocated elsewhere in Brisbane. The inspection undertaken by the court on 16 September 2008 revealed considerable changes since the one in 2002, including an impressive amount of landscaping, which would not serve to alleviate the appellant’s concerns. It also confirmed the presence now of a considerable number of airconditioning installations intended to promote the comfort of staff and students, which, for the most part, have been “retro-fitted”; some 73 sources of noise (air-conditioning or similar) were identified at the Yeronga TAFE site; in the circumstances more noise was likely to be generated than would be caused had airconditioning been incorporated when buildings were originally constructed. [4] It is convenient to adopt Mr King’s description of TAFE noise sources and the “operational parameters of TAFE ventilation plant”, he having had the advantage of generous access (presumably whatever he thought he needed) to the premises and relevant information: “1.3 TAFE Noise Sources In preparation of this report I have inspected the TAFE premises and mechanical plant on several occasions in July 2008. My inspections reveal the following noise generating equipment: A Block Air handling plant rooms – 2 per floor with small opening in external wall for fresh air inlet. Level 4 (Roof Plant Room) – YORK airconditioning chiller comprising 2 compressors – providing chilled water for building airconditioning system. Acoustic ACRAN louvres to exterior. Roof top toilet exhaust fan – northwest area of roof. B Block External ground level airconditioning condenser units (18 units on Southern side of building and 2 units on the northern side). The level of the base of units on the southern side is below the footpath level of Park Road adjacent. -- 2 of 26 -- 3 C Block External ground level airconditioning condenser units 7 units on Southern side of building and 5 units on the northern side comprising 2 units at ground level and 3 units on low level roof. D Block External ground level airconditioning condenser units (13 units south side of building and 2 units on low level roof north side of building). F Block Air compressor located in enclosure southeast corner of building. G Block Ground level plant room comprising two refrigeration compressor units, air handling plant, mezzanine level air exhaust fans fitted with acoustic silencers discharging through louvers to exterior. H Block External airconditioning package units (9 units south, 7 units north) Air compressors (2 units) in external roofed masonry walled enclosure with louvre doors at northwest corner of building. Four sets of (2 extraction fan and stacks) – two at eastern end of building, two at western end of building. Large stacks have inline acoustic silencers either side of fan. Other than this there are several small package airconditioning units located beneath the security office (O Block) on Villa Street. 1.4 Operational Parameters of TAFE Ventilation Plant Advice from TAFE personnel is that the present maximum operating times for the equipment identified in Section 1.3 above are as follows: -- 3 of 26 -- 4 Table 1: TAFE Plant Operation Building Operating Times Automatic Timer Manual On/off Monday to Friday Saturday A Block 7am to 9.30pm 8am to 4pm YES YES B Block 7am to 10pm 8am to 4pm NO Button in room C Block 7am to 9.30pm 8am to 4pm NO Button in room D Block 7am to 9.30pm 8am to 4pm YES Button in room F Block 7am to 10pm 8am to 4pm YES YES G Block 7am to 10pm 8am to 4pm NO YES H Compressors 7am to 10pm 8am to 4pm YES YES H Extract fans Class time only Class time only NO NO Note: Above operating times are maximum times, actual run times are often less as units are switched off after completion of day’s classes by security staff. The A Block units are switched off by switching power isolators to units to off position – bypassing timer. The timers are only used as a backup mechanism. This process is recorded and signed on by the security guard in each plant room (excluding the Chiller Unit which relies on the timer – if all Air Handling Units are closed down the chiller unit will not operate). In B Block, airconditioning units are engaged by push buttons in rooms within buildings which run for predetermined time and then switch off thus only operating for necessary periods. Security staff manually isolate external unit power by moving the main switch to the “Off” position once classes have ceased for the day. In C & D blocks airconditioning units are engaged by call button and run to temperature set points and cycle on and off as required. Timers ensure these units do not start before 7.00am and are shut off by 9.30pm. Air compressors in F and H Blocks are manually isolated from electrical supply after classes. No plant operates on a Sunday without prior approval of TAFE Facilities Manager.” [5] The TAFE blocks, typically rectangular, are oriented towards (but at a slight angle to) Villa Street, that is, their narrower ends point to Park Road. Blocks A, B, C & D -- 4 of 26 -- 5 are arranged parallel to each other moving northwards along Park Road. Block H is at Villa Street across TAFE’s internal driveway from Blocks A & B. Block G is north of it (a kind of continuation of Block D) and Block F is further north still. There is no basis for suggesting any malevolent intent, but the disposition of the noise-generating equipment is far from optimal from the point of view of protecting the applicant’s acoustic amenity. The installations on A, B, C, H & G Blocks are at their western (rather than their remote eastern) ends. The ranks of “split system units” in B and C (especially the former) are on the applicant’s side, rather than the northern side. Also, her house and Blocks A, B & H form an elongated quadrangle (of medium rise structures within the TAFE) which tends to confine noise within itself. Ms Crowther suggested there is a follow-on effect directing H Block noise towards her house (presumably aided by reflection from the walls of A & B Blocks) and adding to noise from the A & B Block installations. There is no acoustic shielding of the kind that has been installed at the “YORK airconditioning chiller comprising two compressors” in A Block. [6] On 28 September 2008, there was broadcast on the Background Briefing program on ABC radio part of a speech about new noise legislation given by Michael Bloomberg, the Mayor of New York in which he noted among: “the areas that are among the most challenging…noise produced by large groups of air-conditioning devices”. The other culprits singled out were construction noise and music emanating from clubs and other commercial establishments. [7] It is not necessary to turn to foreign authority to appreciate the potential for concerning noise nuisance of this kind. Section 6Z of the Environmental Protection Regulation 1998 bespeaks the same concern; it provides: “6Z Airconditioning equipment An occupier of premises at or for which there is airconditioning equipment must not use or allow the use of the equipment— (a) from 7a.m. to 10p.m. on any day if it makes noise or causes noise to be made of more than 50dB(A); or (b) before 7a.m. or after 10p.m. on any day if it makes noise or causes noise to be made of more than the higher of the following— (i) 40dB(A); (ii) 5dB(A) above the background noise level. Maximum penalty—20 penalty units.” [8] The applicant (who filed her application on 16 June 2008) was self-represented. Her submissions were not always easy to come to grips with and the court is grateful to the defendant and its counsel Mr Morzone for identifying relevant provisions and for extending a good deal of indulgence to her to permit her to present her case. -- 5 of 26 -- 6 [9] If relief is to be available, it is not pursuant to any common law claim in nuisance, which this court has no jurisdiction to entertain, in my view, notwithstanding s 23(1) of the Environmental Protection Act 1994 (EP Act) upon which the applicant relied in her submissions. The court is one of limited, defined jurisdiction as conferred by legislation. There was occasion to reject a claim for $10,000 as payment for unrefunded road contributions in Perkins v Kilkivan Shire Council [2006] QPELR 574, in reliance on the majority view in CSR Limited v Pine Rivers Shire Council [1995] 1 Qd R 234; see [17]. I am not satisfied that injunctive or like relief based on common law nuisance is available in this court. However, s 505(1) of the EP Act provides under the heading “Restraint orders”: “(1) A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by— (a) the Minister; or (b) the administering authority; or (c) someone whose interests are affected by the subject matter of the proceeding; or (d) someone else with the leave of the Court (even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding). …” [10] Paragraph (c) is satisfied, as the applicant is and has been since long before the establishment of the TAFE occupant and/or owner of a residence immediately opposite, at 41 Park Road, Yeronga. Her concern about noise goes back three years or more. She engaged an engineer, Ross Palmer, of Palmer Acoustics to begin “ambient noise logging” no later than August 2005 (29.08.05 to 01.09.05). He reported on 18 November 2005 that mechanical plant noise attributed to two airconditioning condensers measured in the middle of the day on 3 October 2005 and between 7:30pm-8pm on 2 November 2005 was measured at 42dB (A) in her front yard, against background levels of 39dB (A) LA90, with a level of tonality warranting a +5dB correction under AS1055.1 (1997): “6.6.3 Tonal adjustment (K1 ) If tonal components are significant characteristics of the sound within a measurement time interval, an adjustment shall be applied for that time interval to the measured A- weighted sound pressure level. The value of this adjustment shall be stated. A procedure based on one-third octave band analysis is recommended for determining the tonal adjustment. NOTE: In some practical cases, a prominent tonal component may be detected in on-third octave spectra if the level of a one-third octave band exceeds the level of the adjacent bands by 5 dB or more, but a narrow- band frequency analysis may be required in order to detect precisely the occurrence of one or more tonal components in a noise signal. If tonal components are clearly audible and their presence can be detected by a one-third octave analysis, the adjustment may be 5 to 6 dB. If the components are only just detectable by the observer and demonstrated by narrow-band analysis, an adjustment of 2 to 3 dB may be appropriate. ” -- 6 of 26 -- 7 [11] The corrected impact level was of the order of 47dB(A) which Mr Palmer advised by reference to the Department of Environment Users’ Guide (Exhibit 3) indicated unreasonableness, even in the daytime, given the excess over background. [12] According to Ms Crowther’s affidavit, on or about 22 November 2005 she sent a “letter of demand” to the Minister, Department of Employment, Training & Industrial Relations enclosing Mr Palmer’s report and “to avoid litigation” seeking prompt advice of steps to be taken “to permanently mitigate Yeronga TAFE mechanical noise nuisance west of Park Road”. [13] Some things have happened since, especially (it would seem) following the intervention of the Environmental Protection Authority (EPA), leaving the applicant still dissatisfied. I think it is common experience that airconditioning equipment often operates in an intrusively noisy and annoying way and that the noise is easier to bear for those whose comfort is enhanced by the operation of the equipment than for others gaining no benefit from it. Section 6Z of the Regulation represents a specific legislated solution, as to which s 6ZS might be noted: “6ZS Measurement of noises of same type from same premises If 2 or more noises of the same type happen simultaneously at the same premises, they must be measured as if they are 1 noise of that type happening at the premises. Examples— 1 A number of concerts happen simultaneously at different places at the same premises. A building is affected by noise from more than 1 of the concerts. The noises must be measured as if they were from 1 concert. 2 A premises is used as a stopover depot for trucks with refrigerators. A building is affected by noise from the use of more than 1 of the refrigerators. The noises must be measured as if they were from 1 refrigerator.” [14] Measurement occurs at the receiving point, rather than some point nearer to the source emitting the noise. It was common ground that an offence under s 6Z would be “an offence against this Act” for the purposes of s 505(1) and (5) of the EP Act. [15] The court’s jurisdiction to make a “restraint order” depends upon an “offence against this Act” being established. Subsection (5) is: “(5) If the Court is satisfied— (a) an offence against this Act has been committed (whether or not it has been prosecuted); or (b) an offence against this Act will be committed unless restrained; the Court may make the orders it considers appropriate to remedy or restrain the offence.” [16] The following subsections might also be noted: “(6) An order— -- 7 of 26 -- 8 (a) may direct the defendant— (i) to stop an activity that is or will be a contravention of this Act; or (ii) to do anything required to comply with, or to cease a contravention of, this Act; and (b) may be in the terms the Court considers appropriate to secure compliance with this Act; and (c) must specify the time by which the order is to be complied with. (7) The Court’s power to make an order to stop an activity may be exercised whether or not— (a) it appears to the Court the person against whom the order is made intends to engage, or to continue to engage, in the activity; or (b) the person has previously engaged in an activity of that kind; or (c) there is danger of substantial damage to the environment if the person engages, or continues to engage, in the activity. (8) The Court’s power to make an order to do anything may be exercised whether or not— (a) it appears to the Court the person against whom the order is made intends to fail, or to continue to fail, to do the thing; or (b) the person has previously failed to do a thing of that kind; or (c) there is danger of substantial damage to the environment if the person fails, or continues to fail, to do the thing. (9) Without limiting the powers of the Court, the Court may make an order— (a) restraining the use of plant or equipment or a place; or (b) requiring the demolition or removal of plant or equipment, a structure or another thing; or (c) requiring the rehabilitation or restoration of the environment. (10) The Court must order a plaintiff to pay costs if the Court is satisfied the proceeding was brought for obstruction or delay. (11) The Court’s power under this section is in addition to its other powers.” [17] There is some difficulty about being affirmatively satisfied in terms of s 505(5)(b). The TAFE appears to be implementing steps to mitigate noise of the relevant kind; it may be unduly pessimistic or cynical to take the approach that the implementation will slacken or fail, although the evidence confirms common experience that systems dependent on human input are not wholly reliable and that equipment may become noisier as it ages, even if assiduously maintained. The systems in place, in particular for the night time (10pm to 7am), to an extent are dependent on staff operating and monitoring control switches. -- 8 of 26 -- 9 [18] In the circumstances, it is prudent to focus on s 505(5)(a) and inquire whether an offence has been committed. The respondent accepted that the Briginshaw standard of proof applied to this exercise, consistently with its approach recorded in Crowther v State of Queensland [2003] QPELR 346 at [41]. [19] It is not only s 6Z that can be relied on. There is also an offence of causing environmental nuisance established by s 440 of the EP Act: “440 Offence of causing environmental nuisance (1) A person must not wilfully and unlawfully cause an environmental nuisance. Maximum penalty—835 penalty units. (2) A person must not unlawfully cause an environmental nuisance. Maximum penalty—165 penalty units. (3) In a proceeding for an offence against subsection (1), if the court is not satisfied the defendant is guilty of the offence charged but is satisfied the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the offence against subsection (2).” [20] To understand that offence, one must refer to other sections which require little explanation. These are: “319 General environmental duty (1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the general environmental duty).134 (2) In deciding the measures required to be taken under subsection (1), regard must be had to, for example— (a) the nature of the harm or potential harm; and (b) the sensitivity of the receiving environment; and (c) the current state of technical knowledge for the activity; and (d) the likelihood of successful application of the different measures that might be taken; and (e) the financial implications of the different measures as they would relate to the type of activity. … 436 Unlawful environmental harm -- 9 of 26 -- 10 (1) An act or omission that causes serious or material environmental harm or an environmental nuisance is unlawful (unlawful environmental harm) unless it is authorised to be done or omitted to be done under— (a) an environmental protection policy; or (b) a transitional environmental program; or (c) an environmental protection order; or (d) an environmental authority; or (e) a development condition of a development approval; or (ea) a standard environmental condition of a code of environmental compliance for a chapter 4 activity; or (f) an emergency direction. (2) However, it is a defence to a charge of unlawfully causing environmental harm to prove— (a) the harm happened while an activity (that is lawful apart from this Act) was being carried out; and (b) the defendant complied with the general environmental duty. (3) The defendant is taken to have complied with the duty if the defendant proves— (a) an approved code of practice applies to the causing of the environmental harm; and (b) to the extent it is relevant, the defendant complied with the code.” and the definition sections 8, 9, 14 and 15: 8 Environment Environment includes— (a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and (d) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c). 9 Environmental value Environmental value is— (a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or -- 10 of 26 -- 11 (b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation. 14 Environmental harm (1) Environmental harm is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance. (2) Environmental harm may be caused by an activity— (a) whether the harm is a direct or indirect result of the activity; or (b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors. 15 Environmental nuisance Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by— (a) noise, dust, odour, light; or (b) an unhealthy, offensive or unsightly condition because of contamination; or (c) another way prescribed by regulation.” [21] Whatever may be the position currently, of which Mr King can speak, the respondent has not shown that over recent times, say, since the complaint to the EPA, it has complied with the general environmental duty. The noise emitted by the TAFE’s airconditioning is, in principle, capable of constituting environmental nuisance. Although I do not accept that the court has jurisdiction to entertain a claim in a nuisance under the general law, some reference to that law may be appropriate in determining what is “unreasonable” within s 15. Mr Morzone referred me to what Judge McGill said in Fletcher v May [2001] QDC 081 at [28]: “The term “environment” is defined in fairly broad terms, in s 8. An absence of unpleasant odour could be described as a quality of a place, and hence the environment, that is conducive to public amenity, and therefore an environmental value for the purpose of s 9, so that unreasonable interference or likely interference with that quality caused by odour is an environmental nuisance. But the key consideration here is the word “unreasonable”; as with public nuisance at common law, it is not any interference with the environment which is an environmental nuisance, it needs to be unreasonable. What is unreasonable is obviously a matter which can only be decided by reference to a particular case, involving all of the factors relevant in the circumstances but factors such as the nature and intensity of the odour, the regularity with which it is emitted, and the number of people affected, as well as the character of the neighbourhood would all be factors which I would expect, by -- 11 of 26 -- 12 analogy from the position in relation to common law public nuisance, would be relevant: Don Brass Foundary Pty Ltd v Stead (1948) 48 SR(NSW) 482 at 486-7; Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110. A feedlot located in a rural area where there were few people living close enough ever to notice the odour, and where the odour would be no more than occasional inconvenience, could probably produce large quantities of odour without constituting an environmental nuisance. Whether or not a tree falling in a forest creates a sound if there is no one there to hear it, a feedlot operating in the bush does not create an environmental nuisance if there is no one there to smell it. [22] Mr Morzone made the following written submission in relation to unreasonableness: “7. As regards air conditioning noise, s6Z has prescribed the criteria by which air conditioning noise is to be measured. It must exceed 50dB (A). As regards the other noise, the evidence of the noise experts is that, at the least, noise levels must reach 5dB (A) above background noise in order for it to be considered unreasonable. As the applicant’s own expert reports show, even that level is less than the level recognised by other standards for community noise including the World Health Organisation (“WHO”). The WHO guidelines for Community Noise refer to few people being moderately annoyed at LAEQ levels below 50 dB (A) during daytime 1 . The British Standard BS4142: 1997 subscribes a level for “industrial noise affecting mixed residential industrial areas” (the TAFE noise is not industrial noise) prescribes a difference of +5 Db above background as “of marginal significance”. Only a 10Db or more above background indicates complaints are likely. It further states that “a measured noise of +5Db above background level is unlikely to generate complaints2 .” [23] Even if Ms Crowther’s evidence is to be discounted on some basis, she presents unchallenged affidavit evidence of others such as Mr Monarski (relative to 1 July 2008), Mr Rebetzke (referable to dates earlier and later), Mr McConnell (referable to a date in December 2006 and 11 June 2008) and Ms Gerlach (an acoustic engineer who has assisted Mr Hawkins) referable to 7 & 19 August 2008. Mr Hawkins may be added to the list. Noise which can be attributed to airconditioning or related equipment at the TAFE is described as clearly discernable at the applicant’s residence, disturbing, extremely annoying, a persistent irritant, noise “I would not want…if I were living in the area.” [24] Three bases are relied on by Ms Crowther for asserting that the offence necessary to give the court jurisdiction under s 505 has occurred: (1) Actual measurements made by the sound engineer Mr Roger Hawkins on 7 August 2008 just after midday; 1 Palmer Acoustics Report 19 August 2008 p 11 2 Palmer Acoustics Report 19 August 2008 pp11-12 -- 12 of 26 -- 13 (2) Noise levels at the eastern façade of the house at 41 Park Road derived by Mr Hawkins from computer modelling based on noise levels indicated in manufacturers specifications or on measurements taken close enough to particular noise sources not to be compromised by the proximity of other sources; (3) The clear, repeated conclusions of the EPA that offences were occurring in the night time (before recommended measures to eliminate or reduce noise from particular TAFE sources were implemented). [25] Mr Palmer’s work should not be (and was not) relied on in this context. It relates to circumstances too remote in time, which cannot be treated as persisting in 2008. Mr Palmer was not at court for cross-examination, nor were any EPA personnel. However, their various reports as the work of a responsible State authority which may be taken to possess and exercise the requisite expertise, were in evidence. The respondent did not challenge the EPA reports put before the court. They resulted from the applicant’s complaint received on 21 December 2007. On Christmas Eve, the EPA advised that they had “written to the alleged source (which) has been offered two weeks to respond.” There being no resolution, noise monitoring was resorted to. [26] The EPA records of that began with the following: “3. MEASURMENTS TAKEN Measurement 1 The ambient noise level, including the source noise, was measured from the front door of the complainant’s residence on 05 March 2008 from 20:10 and at the window of the living area from 20:33. Measurement 2 Background level was taken at the front of the complainant’s premises once the air conditioning unit was turned off at 21:50. RESULTS The results are attached in the report as appendix 1 to appendix 3. After reviewing the results, there are some discrepancies from this set of data, as background level observed of 57dB(A) is a lot higher than in most normal residential circumstances (usual level is 30- 40dB(A) in the evening in most cases). Looking at the 1/3 octave frequency analysis, there is an abnormal peak in the 8khz-20khz region. This is very unusual for an air conditioning unit noise of this type, which usually peaks in bandwidths of 25hz-100hz. -- 13 of 26 -- 14 The peak at this high frequency range is consistent with our field observations that identified the presence of cicadas (or other insects). CONCLUSIONS 1. Identified Noise Source The operation of the air-conditioning unit in plant room on the 3 rd floor was clearly audible from the complainant’s residence. 2. Method of Identifying Noise Source Toshi Yoshino, Paul Butcher and Paul Neilson walked across to TAFE property and got a positive identification on the noise source by getting the security personnel to turn the unit on and off, while Toshi Yoshino stayed at the front of the complainant’s residence to confirm this. 3. Operational Hours of Noise Source The complainant states that the noise occurs on a constant basis throughout the day till after 10pm, and sometimes left on throughout the night. 4. Relevant Legislation The relevant legislation is the Environmental Protection Regulation 1998, Section 6Z… 5. Breach of Legislation Due to the unexpected interference from Cicadas, this noise assessment was unable to confirm nor deny if there is a breach in the legislation. We could dismiss the interference as “background noise”, however, it would be unfair to the complainant as Cicadas are only prominent at certain times of the day as well as certain time of the year, and also the raised level of “background level” would practically render any air conditioning noise as lawful activity. RECOMMENDATIONS Based on the above assessment of the source noise, I recommend that: 1. further noise assessment be carried our during the day, when cicada activity is low; and -- 14 of 26 -- 15 2. in the meantime, to liaise with TAFE and encourage voluntary action into servicing the unit and installing a timer device as a neighbourly gesture.” [27] Next: “3. MEASUREMENTS TAKEN Measurement 1 The ambient noise level, including the source noise, was measured from the front door of the complainant’s residence on 26 March 2008 from 12:50pm. EPA was advised the number of A/C units in operation was representative of those normally on during a typical weekday. Those not operating were a/c units which are not run under normal circumstances, with most of these associated with areas not regularly air conditioned such as storage rooms. A second measurement was taken from the southern side of the house from 1:09pm, and a third measurement was taken from the front of the house (eastern side of the house near front door, shifted approximately 3-4m north from original location by advise of the complainant) again after all A/C units at the TAFE were switched on and most (approximately 80%) were observed operating at any given time. Measurement 2 Background level was not taken in this instance to consider the “worst case” scenario. In worst case scenario, the background noise would be low enough it would not affect the noise level of the A/C units. RESULTS The results are attached in the report as appendix 1 to appendix 3. The noise levels recorded from the front of the house initially was 44dB(A). The noise level recorded at the side of the house was 42dB(A). The noise level recorded from the front of the house once all the A/C units at the TAFE were turned on was also 44dB(A). Previous noise measurements in the same suburb in similar locations indicates that background noise levels at night would be around 30-35dB(A). There are no tonal components observed across the frequency band monitored. CONCLUSIONS 1. Identified Noise Source -- 15 of 26 -- 16 The operation of the air-conditioning unit in plant room on the 3 rd floor was clearly audible from the complainant’s residence. The air conditioning units at B, C, and D blocks are audible from the complainant’s premises, but only very faintly. 2. Method of identifying Noise Source During a previous assessment, Toshi Yoshino, Paul Butcher and Paul Neilson walked across to the TAFE property and got a positive identification on the noise source by getting the security personnel to turn the unit on and off, while Toshi Yoshino stayed at the front of the complainant’s resident to confirm this. 3. Operational Hours of Noise Source The complainant states that the noise occurs on a constant basis throughout the day till after 10pm, and sometimes left on throughout the night. 4. Relevant Legislation The relevant legislation is the Environmental Protection Regulation 1998, Section 6Z. … 5. Breach of Legislation The noise level of 44dB(A) is in breach of the regulation if the units are to be operated between the hours of 10pm and 7am. RECOMMENDATIONS Based on the above assessment of the source noise, I recommend that: 1. The TAFE install/adjust a timer to restrict the operation of A/C units to 7am-10pm 2. Keep the A/C units in good working order to keep the noise to minimum Further developments: On 28 March 2008, the TAFE has responded to the EPA that the units have just been serviced, and it will be checked for any defects in the following week. Following the provision of this new information, I recommend that: -- 16 of 26 -- 17 1. another noise assessment be carried out to ascertain the noise levels once the A/C unit has had its full service checked.” [28] Finally: “3. MEASUREMENTS TAKEN Measurement 1 The ambient noise level, including the source noise, was measured from the complainant’s residence, on 23 April 2008 from 1:09pm and 29 April 2008 from 7:40pm. Measurement 2 To consider the “worst case scenario”, no background reading was taken. In a “worst case”, the background would be low enough it would not interfere with the results. NOISE ASSESSMENT RESULTS Measurements The table of measured noise levels (including the source noise) are as follows. During the measurement the source noise level was audible at the complainant’s residence. All measurements are in L90 dB(A). At Front Door Side of the house 23 April 2008 (day) 44dB(A) N/A 29 April 2008 (night) 43dB(A) 42dB(A) There are no tonal components observed in the 1/3 octave frequency bands monitored. CONCLUSIONS 1. Identified Noise Source The operation of air-conditioning unit on the TAFE premises is audible from the complainant’s premises, and Toshi Yoshino and Paul Butcher has identified the source visually. 2. Method of Identifying Noise Source The identification of the noise source was confirmed by observation at the time of the initial noise measurement. 3. Operational Hours of Noise Source -- 17 of 26 -- 18 The complainant states that the noise occurs on a constant basis throughout the day and sometimes at night. 4. Relevant Legislation … 5. Breach of Legislation The source noise level exceeds the night time (10pm-7am) criterion by 4dB when the air conditioning equipment is operating. RECOMMENDATIONS Based on the above assessment of the source noise, I recommend that: 1. Yeronga TAFE be made to adjust the timer switch to ensure the air conditioning units do not operate after 10pm and before 7am. 2. Yeronga TAFE be advised to turn any other unnecessary equipment such as air compressors and exhaust fans, which may contribute to noise nuisance, off during the night to fulfil their GED. 3. The complainant be informed of the above actions.” [29] The last EPA record (Exhibit 4) records “night time” measurements of background noise levels on 10, 17 and 24 June 2008 close to or after 10pm when officers “walked around the campus to confirm the absence of noise sources at the time of measurement.” This was taken as confirming that “TAFE is now controlling the noise source using a timer system to restrict its operation during the 10pm to 7am period”. The breach of the night time criterion by 3.6 dB noted presumably refers to the subject matter of earlier reports. [30] Close to the time of filing of the application, Mr Wall, the Director-General, wrote to the applicant (12 June 2008): “I refer to your faxed correspondence of 3 June 2008 concerning noise from the Yeronga Institute of TAFE. I understand Mr Scott Robinson from my Department contacted you on 6 June 2008 to advise that your facsimile had been received, and that a written response would be provided shortly. As you are aware, the Environmental Protection Agency (EPA) has been investigating your allegations that noise from the Yeronga Institute of TAFE (YIT) air conditioning units is unduly impacting on your amenity. The EPA has conducted acoustic assessments of the air conditioning units on 5 separate occasions and taken up your concerns with staff of the YIT. The EPA’s most recent noise -- 18 of 26 -- 19 assessment was undertaken to assess the effectiveness of YIT actions to mitigate the noise from its air conditioners. The EPA’s noise assessments showed that the noise from YIT at night (between 10pm and 7am) did not comply with Section 6Z of the Environmental Protection Regulation 1998. Section 6Z of the Regulation states: … As a result of the assessments, YIT has worked hard to reduce noise from the air conditioners. The EPA also instructed YIT to cease operating the air conditioning units between the hours of 10pm and 7am. Further inspections have revealed some noise continuing to be emitted from the site between these hours, and this matter has been followed up with YIT staff. With respect to your concerns regarding the failure to have all units in operation during the noise monitoring, I am advised that EPA officers attended the YIT site during these assessments to ensure all relevant air conditioning units were switched on. Officers were satisfied that the units in operation were a realistic representation of the operation of the air conditioners during the day. I note your request that all air conditioning units, including G block, be switched off. However, the EPA understands that G block houses the TAFE’s computer servers and as such, the air conditioning unit serving this block is required to remain active 24 hours a day. If further EPA noise assessment shows that this unit is causing noise problems, YIT will be instructed to insulate the unit to ensure that it does not cause noise nuisance. Recent assessments however indicate that the noise from this unit is not audible at your premises. The EPA will continue to monitor the site and, should YIT be found to be causing unlawful nuisance, the EPA will take appropriate enforcement action. …” [31] The foregoing material, put in evidence by the applicant, has elicited no response by way of criticism or explanation. While inspection confirmed that some steps have now been taken by the TAFE to implement EPA recommendations, there is insufficient in the evidence to show the detail of when things were done, little assurance is offered that the measures implemented are and will continue to be effective. The respondent, without making any admissions, offers an undertaking to carry out what is recommended by Mr Paul King, the experienced acoustic engineer who prepared a report for it and gave evidence, in his written conclusions: “3.0 CONCLUSIONS -- 19 of 26 -- 20 The assessment conducted of noise resulting at the residence at 41 Park Road due to operation of TAFE mechanical plant has been conducted using both field testing and computer noise modelling. The outcome of the field testing and noise modelling is that the resultant component noise due to operating TAFE plant would be a maximum of 47.8 dB(A). This is below the offence limit of 50 dB(A). Based upon inspection, at this level there are no specific tonal components which would require addition of tonal correction factors. Thus noise from operation of all plant and equipment complies with regulatory noise criterion in the time period 7am to 10pm. To lessen audible components of noise on the TAFE property it has been recommended that noise rectification works should be undertaken to the air compressors in Block H and the loose lourve blades in the Block G mezzanine plan area should be re-fastened. Furthermore, a reduction in operating time of the A block western toilet exhaust fan should be considered along with potential noise reduction measures. These noise reduction measures are not required for compliance with the regulatory limits but rather are recommended as worthwhile in reducing audible components of noise external to the TAFE property.” [32] Mr King undertook or supervised the undertaking of field noise testing in the area between 6am and 7:33am on 23 July 2008 and again between 8pm and 9pm. Because of the complexity of the noise environment (not only that produced by the TAFE, but also that produced by road and sporadic rail traffic), the results are of limited usefulness. In Mr King’s assessment, the s 6Z limits were not reached, but it was noted that “mechanical fan type noise was audible and detectable in the front yard and on the southern side of the residence during the testing…barely discernable on the northern side”. Modelling was resorted to to predict noise levels with all plant running during the daytime, it being considered that no mechanical plant operated during the “night”. Predicted noise levels were at no point higher than 47.8Leq-dB(A), 47.8 in the front yard, 47.6 at the east façade, against the s 6Z criterion of the 50 dB(A). Reference was made to testing on the night of 28 July 2008 which identified audible noise at the applicant’s place “due predominantly to the toilet exhaust fan on the roof of ‘A’ block…measured as approximately 42dB(A) and measured Leq of 43.9dB(A)”. Here, exceptionally, Mr King allowed a tonal correction of 3dB(A) to that source alone, which “would still achieve compliance”. [33] Mr Hawkins in the summary and recommendations in his report of 18 July 2008 presented a different view from Mr King’s (which I took to be that the modelling showed that an offence under s 6Z could not happen): “7.0 SUMMARY AND RECOMMENDATIONS The presented analysis indicates potential noise impacts at the eastern façade of the dwelling at 41 Park Road: Locality Assessed impact LAeq Block A: 32 dB(A) -- 20 of 26 -- 21 Block B: 46 dB(A) Block C: 37 dB(A) Block D: Not evaluated Block G: 37 dB(A) Block H: 41-46 dB(A) The simple summation of the noise impacts suggests a possible noise impacts equalling or indeed above offence levels, if façade reflection and tonality corrections are considered. It is not possible to state that this occasion occurs, given the assumptions and uncertainties of the analysis, only that it is potentially possible. If plant is operated at night (before 7:00am) exceedence is almost certain. It is noted that the gates for the TAFE are opened from 7:00am and preconditioning of spaces (temperature & humidity) before this time would be considered good management. Of particular note are the ventilation stacks of Block H where operation may be dictated by workplace safety considerations rather than comfort. The specific location of external air conditioning condenser units suggests that any noise would have significant duration when cooling loads are high. The variety of source and the random switching nature of plant items would suggest that any noise intrusion would be fluctuating or intermittent in nature. Removal of the uncertainty expressed in this report would require additional visits to the TAFE campus and 41 Park Road with the ability to force the full load operation of individual mechanic plant items. Such a visit would preferably be conducted at night or in the weekend, at a time of low background noise.” (The safety considerations relate to removal of paint fumes, particularly from a couple of spray painting booths.) [34] The respondent, by making the appropriate logarithmic addition of modelled noise levels, sought to demonstrate that, with all sources contributing at once, the predicted levels, would still fall by a few decimal points below 50dB(A). See the transcript for Day 1 at 66ff. I was impressed by Mr Hawkins’ assertion that such refinement is not warranted, that, in such a scenario, the level would be taken as 50dB(A). Of course, the level must be exceeded before s 6Z is offended. I should say how impressed I was with Mr Hawkins’ caution – which does not justify any “beefing up” of the evidence he gave. So far as the modelling is concerned, the court is left in such uncertainty as to whether (with all plant operating, presumably efficiently – which involves an assumption favourable to the respondent) it can be said that offences would not or would be committed. In that situation, Ms Crowther has failed to establish “an offence against this Act”. -- 21 of 26 -- 22 [35] I am satisfied to the requisite standard of an offence on 7 August 2008, on which day Mr Hawkins took measurements at Ms Crowther’s house of noise “observed to be a constant underlying background noise, subjectively rising to dominance during periods of diminished noise from other sources…the noise emanated from the compressor bay of Block H”. Figure 1 in Mr Hawkins’ report of 19 August 2008 (Noise Impact Assessment – Record of Spot Measurements) sets out in Figure 1 in graph form measurements at four locations at 41 Park Road (about lunchtime) and concludes: “Table 1: Overall Values, 41 Park Rd 7th August 2008, Spectral Measurement location Measured value dB(A) LA90 Rear lawn of house 40 Front of house on paved area 45 South eastern corner of house 41 On footpath Villa Street 46 Discussion The strong tonal quality of the noise can be seen, centred on the 500Hz one-third octave band. From Australian Standard AS1055.1 1997 Acoustics – Description and measurement of environmental noise, Section 6.6.3 we note that a tonal correction of up to 5-6 dB is appropriate for a noise that is clearly audible and confirmed by one-third octave band analysis. If this correction is added to the measurement at the front of the house we see that the noise reaches the offence limit of the EPA.” [36] A good part of the criticism of Mr Hawkins’ approach was directed to his adjustment of noise values upwards for a tonal quality of the noise, particularly that measured on 7 August 2008 around 12:45pm attributed to the “compressor bay” of Block H. Oddly, that noise on the day could be heard most clearly at the rear of Ms Crowther’s house, it was suggested because of “reflectors” in the area (a multi-unit building to the north and an acoustic fence separating a childcare centre to the south). If it matters, I accept Mr Hawkins’ opinion that where such “reflectors” are part of the physical environment, their effects must be allowed for by emitters of noise in that environment; they are not entitled to expect noise levels to be measured or calculated as if the “reflectors” were not there. It may be a matter of judgment what correction for tonal quality is applied. EPA reporting notes the absence of a tonal aspect. As recorded elsewhere, Mr King contemplated a tonal correction of 3dB(A) in respect of noise attributed predominantly to the toilet exhaust fan on the left of A Block (paragraph 2.3 of his report at the top of page 9). His more limited tonal correction in respect of a different noise source is, in my view, beside the point in determining what happened on 7 August 2008, as is the judgment of EPA officers referable to whatever noise was about on a particular earlier day. We have a record of Mr Palmer considering a +5dB correction appropriate in 2005. I accept Mr Hawkins’ judgement here, which I do not think is likely to be out of line with his general cautious approach, as assessed by me. I accept from Mr Hawkins that the readings recorded in his graph support his assertion of “strong tonal quality”. My conclusion is that an offence is established on the day in question. In that regard I have taken into account the “defence” Mr Morzone contends applies. See [40] below. -- 22 of 26 -- 23 [37] There is room for argument whether s 6Z applies, given that the noise source was an air compressor or pair of air compressors, the use of which was for purposes of spray painting. Although there is a definition of “domestic air conditioner” in Schedule 4 of the Environmental Protection (Noise) Policy 1997: “domestic air conditioner means a system that – (a) is described in AS 1861 as a split or packaged mechanical system; and (b) is designed to control air temperature and distribution (whether or not it is also designed to control the humidity, cleanliness or other qualities or air); and (c) has a cooling capacity of not more than 12kW, measured under AS 1861; and (d) is not a machine of the kind commonly known as an evaporative system or a machine designed exclusively for heating,” there is otherwise no helpful definition. The court was told that there is no clear engineering understanding of what constitutes “air conditioning”, although it would simplify matters to say that it has to do with heating or cooling air. I do not think that it is straining things too far to regard s 6Z as applying to equipment that treats or controls air by compressing it. Mr King, in his catalogue of TAFE noise sources set out in paragraph [4] above, makes no distinction between the H Block compressors and the two compressors forming part of the airconditioning for A Block or against those in G Block. I think he was correct to make no distinction. If that approach is too bold, I think the court may act by analogy to treat the noise levels set out in s 6Z as applicable to the H Block compressors. The same levels are set elsewhere in the Regulation, for example in s 6ZA, dealing with refrigeration equipment and the 50dB(A) standard (for the daytime) is also there for spa blowers and pool pumps in s 6Y and for “indoor venues” in s 6ZB. At the least, I am satisfied there was an offence under s 440(2) of the EP Act on that occasion. [38] Further, I am satisfied to the requisite standard that offences have been committed between 10pm and 7am on the basis of the EPA reports. It is not possible to be specific about dates or times when there was excessive noise, measured against s 6Z. Mr Morzone properly urges the court to guard against “duplicity” as discussed in cases such as Johnson v Miller (1937) 59 CLR 467 and Walsh v Tattersall (1996) 188 CLR 77. It is a salutary rule that only one offence should be charged in any count of an indictment or information, so that a defendant knows exactly what he is charged with. I am alive to duplicity issues from having considered them in Lucy v OCC Holdings Pty Ltd [2008] QPELR 398 at [37]. Mr Morzone’s submission was: “…the question becomes whether different occurrences, although happening at different times, constitute one continuing offence, or whether they constitute separate offences3 . 14. As stated above, there is scope for saying the issue arises here, simply by reason of the long period of complaint referred to in the evidence. The different types of noise, namely air conditioning noise and compressor or extraction 3 cf Ex parte Graham at 283-284 -- 23 of 26 -- 24 noise and the intermittent nature of particularly the compressor noise. Given the lack of formal particulars, there is scope for saying that the issue arises here simply by reason of the long period of complaint referred to in the evidence. The sources are not so closely connected that they should be regarded as one enterprise. They involve different activities in different buildings, and each has the potential to involve an offence. Under the EP Act, when an offence has been shown to be committed, one of the primary powers of the P&E Court is to direct the defendant “to stop an activity that is or will be a contravention of this Act.”4 15. The separate noise sources could also mean that there are different defences to alleged offences (eg that the general environmental duty has been complied with in relation to one source but not the other). This is one of the explanations for the rule against duplicity. Additionally, quite apart from any defence, if there are 2 separate offences charged, one may be proved, but the other not. 16. While the proceedings are not criminal proceedings, the rule against duplicity is a rule of pleading which is not confined to criminal proceedings5 , and as it is a rule of elementary fairness, the principles that have been developed in connection with it are useful guidelines in determining the nature of the prejudice that may flow from duplicitous charges in other proceedings6 . Section 505 uses the language of “an offence”, and it is appropriate to apply the rule here. 17. The claimant has failed to identify particular “activities” for the purpose of the EP Act, and shown that that activity was a source of environmental nuisance. These may not be easy tasks where there are multiple sources of noise in relatively close proximity. But once it is accepted that there are sufficient differences to warrant separate treatment (as it should be here), any difficulty in the assessment simply had to be grappled with.” [39] This is not a criminal proceeding in which it is sought to establish an offence for the purpose of achieving conviction and penalty. That an offence occurred is a condition of the court’s having jurisdiction to make an order under s 505 of the EP Act. A practical, common sense approach is appropriate, in which the nature of the alleged offending ought not to be forgotten. The vice of a duplicitous allegation, namely that the person against whom it is made does not understand what the complaint is about, is not encountered here. The applicant, in the present circumstances, need not attribute particular instances of noise nuisance to some particular unit(s) among the TAFE’s equipment. 4 s 505(6)(a)(i); see also s 505(7) 5 Gee v General Medical Council [1987] 1 WLR 564, 569 6 Mitchell v Royal New South Wales Canine Council Ltd [2001] 52 NSWLR 242, 249 [50] -- 24 of 26 -- 25 [40] Reliance is placed on s 6X of the Regulation which outlaws operation of “regulated devices” after 7pm on any day or before 8am on a Sunday or public holiday (7am on other days). The devices covered include a compressor, ducted vacuuming system, etc. Subsection (4) is a special exception for “a manual arts facility at an educational institution” (which would extend to the TAFE) between 7pm and 10pm Monday to Saturday. What is outlawed (or excused) is “audible noise”. I am in some difficulty in accepting s 6X as the asserted “fundamental defence” if an offence against s 6Z by reference to the noise level set out there or an offence against s 440 is being asserted. It is a defence to a complaint under s6X. [41] The evidence of Ms Crowther and her deponents satisfies the court that offending sufficient to give the court jurisdiction under s 505 of the EP Act has occurred under s 440. The respondent submits that the general environmental duty has been complied with and that the defence under s 436(2) of the EP Act by reference to that duty has been made out. The provision is set out in paragraph [20] above. This defence is something to be proved by the respondent, which has nothing to rely on but Mr King’s evidence, which, with respect, comes too late, in that it does not go to times before the EPA’s efforts led to some relevant action at TAFE. [42] The applicant was not sought to be cross-examined. Part of her complaint is what she says is “regular spiking of TAFE noise…between 2am and 4.30am seven days a week”. She refers to particular instances on 12 July and 18 July 2008. Notwithstanding that her evidence is unchallenged; the evidence does not reveal any engineering or scientific basis for determining whether, if so how, the TAFE is responsible for those phenomena. They ought not to occur if there is compliance with the order I propose to make that the respondent not permit at the Yeronga TAFE the use of airconditioning equipment (including compressors) in terms of (a) or (b) of s 6Z of the Regulation detectable at the front wall of the residence at 41 Park Road, Yeronga. Additionally, the respondent should be ordered to keep a written record available for production to the court and inspection by the applicant of operation of equipment outside the times indicated in Mr King’s Table 1, reproduced above and (if it is unwilling to persist with its proffered undertaking) to institute the measures recommended by Mr King referred to in his “conclusions” in paragraph 3.0 of his report to date or in future. [43] Mr Morzone’s helpful submissions and Mr King’s evidence do not constitute, as claimed, “positive disproof of any offence” or persuade me that Mr Hawkins’ “correction for impulse and tonality” is unjustified. Ms Crowther has made out her case for a “restraint order”. [44] As against that possibility, Mr Morzone reminds the court of the discretion it has to withhold relief established in cases such as NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706 and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, considered in Queensland Cement Limited v United Global Cement Pty Ltd [1999] QPELR 167. He contends that there is no utility in the making of orders, particularly given the undertaking offered to implement Mr King’s recommendations. This may constitute a reason for withholding relief; See Perkins (supra) at [29] citing AMACSU v Ergon Energy Corporation [2005] QCA 251 at [77]. Further, there was complaint about the lack of specificity in the orders sought, citing Pine Rivers Shire Council v Intercontinental Shelf No. 108 Pty Ltd (Unreported) Supreme Court of Queensland No. 3739 of 1982, 20 December 1983 -- 25 of 26 -- 26 at page 8 (per Thomas J). See also, for example, Australian Consolidated Press Ltd v Morgan (1964) 112 CLR 483, at 515. [45] Those considerations do not dissuade me from granting relief, as I think that Ms Crowther has established breach of s 6Z of the Regulation and s 440 of the EP Act. There is room for concern here that, if her application fails entirely, as the respondent submits it should, insufficient vigilance will be exercised at the TAFE to ensure that Ms Crowther and her neighbours enjoy the amenity, as regards noise, which the EP Act, the Regulation and the Policy intend they should enjoy. Her victory may well be a rather empty one, as the court is in no position to do more than grant the relief sought, which I think has to be understood in terms of limiting aggregate noise emissions so they do not exceed the limits expressed in s 6Z, (further, I think that the steps indicated by Mr King as appropriate ought to be ordered to be implemented within a fixed time). There is no evidence before the court to indicate what more specific orders the court might usefully pronounce. -- 26 of 26 --