Ever since the Lockyer Valley Mayor addressed a community meeting last December, we have been hearing that Councillors need to be very careful about meeting with people objecting to the motocross application, or being seen to allocate more time to objectors than to the applicant, lest they be accused of bias or impartiality.
It was suggested at the 18 March Council meeting that Councillors who might consider accepting an invitation to a community meeting where they could hear the remainder of a presentation on community concerns about the motocross proposal and have the opportunity to ask questions that they should "seek advice".
This whole line or argument seems to fly in the face of Councillors' responsibilities and duties, and even to be contrary to the provisions of the Local Government Act. I've lost count of the number of people who were dumbfounded when they heard that this could even be an issue. The way it has been presented seems to cast Councillors in the role of a "jury" which should not be contaminated by seeking information or understanding outside of that provided by the Council staff (and possibly also the applicant). Clearly Councillors are not a jury - they are elected representatives of their constituents.
So my attention was grabbed last night when there was an item on the TV news showing Brisbane City Councillor Helen Abrahams addressing a rally in West End against a highrise development application, and apparently siding with the protesters. Didn't she realise the risks she was taking?
This morning I checked out her website - she's even inviting people to discuss the details of the application with her! Here's an excerpt from her website page which deals with this application:
The application is Impact Assessable and so neighbours will be
notified and it will be advertised on the property boundary. There is a
right of appeal of Council’s decision. You can view the development
application at The Gabba Ward Office, 2/63 Annerley Road, Woolloongabba
or at a Customer Service Centre. Alternatively you can view the
application on line at www.brisbane.qld.gov.au and click on view
development applications and follow the prompts.
You may wish to make a submission on the application. The submission
should be addressed to Mr Colin Jensen, CEO, Brisbane City Council, GPO
Box 1434, Brisbane Q 4001. If you wish to discuss the details of this
application with Councillor Helen Abrahams please ring 3403 2160.
How could the situation be so different in the Lockyer Valley Region?
Helen Abrahams has been a Councillor since 2003, thus she should be pretty knowledgeable about potential issues of bias and partiality which might arise when dealing with her constituents. So I phoned her and asked whether her close involvement with her constituents' issues has ever been raised as a possible basis for charges of bias or lack of impartiality within the Brisbane City Council.
Her response was one of surprise at the questions, and incredulity when I described the warnings issued to LVRC Councillors. Her view is that, as a Councillor, her constituents' problems are her problems. She believes that she needs to know about them and understand them, and to advocate on behalf of her constituents. I gathered from what she said that doing this is not in any way in conflict with the well informed impartiality that she brings to bear in the Council decision-making process as a Councillor. It is what is expected of Councillors and her role has never been challenged in terms of partiality or of bias.
Brisbane City Council operates under the City of Brisbane Act 2010 - but, much of that Act (including the parts dealing with Councillors' responsibilities, conflict of interest, and impartiality) mirror the Local Government Act 2009. Neither piece of legislation has any prohibitions on Councillors informing themselves of the views and expectations of their constituents, even in relation to development applications. There's nothing about allocating "equal time" to constituents and applicants either.
On that basis, you'd have to wonder where this "policy" that is being applied to the LVR Councillors comes from, and whose interests it is serving.
Wednesday 29 April 2015
Monday 20 April 2015
The proposed Adare motocross facility exceeds even its own maximum noise limits
The Noise Impact Assessment presented in the Development Application for the Adare motocross facility has some interesting bits in it. Here are a few.
The table below presents three different measures of background noise, extracted from the same data set. These represent the three main ways of measuring background noise.
The L90 measurements are similar to the values recorded for background noise at properties near the Emu Creek motocross track (before it ceased operating). They are more or less what would be expected in a quiet rural/natural environment such as we have here in Adare/Vinegar Hill.
In such a rural/natural environment with high amenity values (and high resident expectations) for "peace and quiet" then the maximum acceptable imposed noise level should be no more than background+5dB. This standard has been used at other locations in Queensland and in NSW.
So, taking Leq readings, the maximum acceptable noise levels for daytime operation (7am to 6pm) would be 37+5dB = 42dB. And for evenings (6pm to 10pm) it would be 30+5dB = 35dB. Note that background noise levels were measured in the open air, so indoor background levels would be lower and imposed noise maxima would also be lower than these figures.
These are the predicted noise levels for daytime operation (9am to 4pm). Note that the Applicant has chosen to adopt the criteria of 50dB for daytime operation and 35dB for evening operation. No justification is provided for this in the Application, and there has been no attempt to relate these values to measured background levels or to take into account annoyance effects of motocross noise.
Nevertheless, if we just take the Applicant's maximum noise values, the 50dB value is exceeded at two locations outdoors (whereas background+5=42 is exceeded at eight locations). For indoors, the Applicant's criterion of 35dB is exceeded at eight locations.
The Applicant has used the same maximum noise levels for evening operation as he used for daytime (50dB outdoors and 35dB indoors). This is completely unacceptable, considering that the evening background values he measured are 7dB(Leq) lower than daytime backgrounds. The proposed outdoor 50dB maximum is equalled or exceeded at 11 locations, and the indoor 35dB maximum is exceeded at 14 of the 18 locations.
In summary, the Applicant is not able to meet even his own unjustifiably high maximum noise limits - and I have bee advised that these are 15-20dB(A) higher than those used by another Council.
Background Noise
Background (ambient) noise measurements were done over a one week period in August 2014.The table below presents three different measures of background noise, extracted from the same data set. These represent the three main ways of measuring background noise.
In such a rural/natural environment with high amenity values (and high resident expectations) for "peace and quiet" then the maximum acceptable imposed noise level should be no more than background+5dB. This standard has been used at other locations in Queensland and in NSW.
So, taking Leq readings, the maximum acceptable noise levels for daytime operation (7am to 6pm) would be 37+5dB = 42dB. And for evenings (6pm to 10pm) it would be 30+5dB = 35dB. Note that background noise levels were measured in the open air, so indoor background levels would be lower and imposed noise maxima would also be lower than these figures.
Predicted Noise Levels at Houses
The table below is a key to the locations of "Receivers" (i.e. houses) for which noise levels were predicted by the acoustic model used by the consultant. The two tables after it refer to Receivers No. 1-18, and the street addresses of these are given in the right-hand column of the table below. | |||
| Receiver Locations for Noise Predictions in Following Tables (none of the directions given are accurate - the consultant fails to understand that "due" means "exactly" in this context) |
Nevertheless, if we just take the Applicant's maximum noise values, the 50dB value is exceeded at two locations outdoors (whereas background+5=42 is exceeded at eight locations). For indoors, the Applicant's criterion of 35dB is exceeded at eight locations.
In summary, the Applicant is not able to meet even his own unjustifiably high maximum noise limits - and I have bee advised that these are 15-20dB(A) higher than those used by another Council.
The Bella Creek Motorsports Facility is not going to happen!!
This news came in around the middle of March but I forgot to report it. The proposed development, in the Gympie Regional Council area, would have included five motocross tracks, as well as four-wheel-drive tracks, camping, etc.
The Bella Residents Action Group made the announcement on their Facebook page.
Well...for all of you who have been waiting with bated breath and are not on a mailing list - we are now well past the period within which an appeal against the refusal of Mr Canty's DA had to have been lodged.
A conversation with Council has confirmed that there has been NO such lodgement. The 2nd application for the Bella Creek motorsports facility is now as dead as the first. After 4 1/2 years we can finally take a deep breath and exhale.
Thank you to all who have been following and offering support in our battle to prevent this misplaced idea from becoming a reality, you have been wonderful. After such a long time it seems hard to believe that this may finally be behind us; in light of the proponents past ability to offer up unpleasant surprises, we remain somewhat wary. We are nonetheless looking forward to drinking that champagne we've been storing. Raise a toast wherever you are and give yourselves a pat on the back, you deserve it!
The Gympie Regional Council's Planning and Development Section report on the application can be found here. It has a number of interesting things to say, many of which are relevant to the proposal for a motocross operation at Adare in the Lockyer Valley.
The development is proposed in a quiet rural area that is removed from the urban area. The application has not adequately demonstrated that noise from the development will not cause a nuisance to the immediate area. Further, it is likely that the traffic that could be generated is estimated to significantly increase when compared to the current low volumes of traffic in the locality, which will also cause adverse impacts upon the amenity and character of the area.
The locality is characterised by rural, rural residential and education uses and has a high level of amenity. Consequently, the development is likely to cause significant adverse changes to the acoustic environment of adjoining and surrounding premises and significantly impact upon the existing amenity of the locality.
The application was subject to a large number of objections [205] who have raised valid concerns about the proposal’s impact on the amenity of the area. ...
Concerns relate to character of the area being threatened, intrusion in lifestyle for a rural community, loss of privacy, unlawful entry onto neighbouring properties and inconsistencies with rural and rural residential land use in the area. ...
The concerns raised in the submissions are outlined in the report the majority of which raise valid planning issues. The number of and quality of the submissions, demonstrate that the development is contrary to community expectations and is not in the public interest.
Implementation of these [proposed] measures could be conditioned on any approval. However, the protection of the environmental values on the site cannot be guaranteed in regards to maximising protection of Koala Habitat Areas and having no adverse environmental impacts.
It is accepted that the proposed development will have some community benefit. However, the applicant has not provided any justification that there is a need for the facility, in particular at this location.
and
The applicant has not provided supporting information from an economic expert about the level of economic need for this type of facility. However, it is accepted that there is some community benefit in providing for this type of facility. However, the planning need for the facility at this location has not been demonstrated.
Having regard to the number of objections and concerns expressed in the submissions received, the proposed development is contrary to community expectations and is not in the public interest.
As mentioned above, the Bella Creek proposal gave rise to 205 objecting submissions of which 57% were from the Gympie Regional Council area. The Adare proposal has given rise to 232 objecting submissions 95% of which came from the Lockyer Valley Region.
In addition to the 205 objecting submissions, the Gympie Regional Council received 582 submissions in support of the Bella Creek proposal (85% of them from outside the Council area). The Adare motocross proposal elicited only two (2) supporting submissions.
The Bella Residents Action Group made the announcement on their Facebook page.
Well...for all of you who have been waiting with bated breath and are not on a mailing list - we are now well past the period within which an appeal against the refusal of Mr Canty's DA had to have been lodged.
A conversation with Council has confirmed that there has been NO such lodgement. The 2nd application for the Bella Creek motorsports facility is now as dead as the first. After 4 1/2 years we can finally take a deep breath and exhale.
Thank you to all who have been following and offering support in our battle to prevent this misplaced idea from becoming a reality, you have been wonderful. After such a long time it seems hard to believe that this may finally be behind us; in light of the proponents past ability to offer up unpleasant surprises, we remain somewhat wary. We are nonetheless looking forward to drinking that champagne we've been storing. Raise a toast wherever you are and give yourselves a pat on the back, you deserve it!
The Gympie Regional Council's Planning and Development Section report on the application can be found here. It has a number of interesting things to say, many of which are relevant to the proposal for a motocross operation at Adare in the Lockyer Valley.
Noise and Amenity
... there remains considerable doubt that the proposed development can operate without causing significant adverse noise impacts given the scale of the proposed development.The development is proposed in a quiet rural area that is removed from the urban area. The application has not adequately demonstrated that noise from the development will not cause a nuisance to the immediate area. Further, it is likely that the traffic that could be generated is estimated to significantly increase when compared to the current low volumes of traffic in the locality, which will also cause adverse impacts upon the amenity and character of the area.
The locality is characterised by rural, rural residential and education uses and has a high level of amenity. Consequently, the development is likely to cause significant adverse changes to the acoustic environment of adjoining and surrounding premises and significantly impact upon the existing amenity of the locality.
The application was subject to a large number of objections [205] who have raised valid concerns about the proposal’s impact on the amenity of the area. ...
Concerns relate to character of the area being threatened, intrusion in lifestyle for a rural community, loss of privacy, unlawful entry onto neighbouring properties and inconsistencies with rural and rural residential land use in the area. ...
The concerns raised in the submissions are outlined in the report the majority of which raise valid planning issues. The number of and quality of the submissions, demonstrate that the development is contrary to community expectations and is not in the public interest.
Impact on Koala Population
In relation to the koala population on the Applicant's land that would be subjected to adverse impacts from the proposed activity, the Council Planning report says:Implementation of these [proposed] measures could be conditioned on any approval. However, the protection of the environmental values on the site cannot be guaranteed in regards to maximising protection of Koala Habitat Areas and having no adverse environmental impacts.
Community Benefit and the Need for the Development
Referring to the questions of community benefit and need for the development the report says:It is accepted that the proposed development will have some community benefit. However, the applicant has not provided any justification that there is a need for the facility, in particular at this location.
and
The applicant has not provided supporting information from an economic expert about the level of economic need for this type of facility. However, it is accepted that there is some community benefit in providing for this type of facility. However, the planning need for the facility at this location has not been demonstrated.
Number of Submissions
One of the grounds on which the Gypmie Councillors refused the application was that:Having regard to the number of objections and concerns expressed in the submissions received, the proposed development is contrary to community expectations and is not in the public interest.
As mentioned above, the Bella Creek proposal gave rise to 205 objecting submissions of which 57% were from the Gympie Regional Council area. The Adare proposal has given rise to 232 objecting submissions 95% of which came from the Lockyer Valley Region.
In addition to the 205 objecting submissions, the Gympie Regional Council received 582 submissions in support of the Bella Creek proposal (85% of them from outside the Council area). The Adare motocross proposal elicited only two (2) supporting submissions.
Gympie Regional Council's Conclusion
Having regard to the planning scheme as a whole and the level of conflict identified, there are not sufficient grounds to allow the development despite the conflict. Consequently, the development application should be refused.Sunday 12 April 2015
A very interesting analysis of case for nuisance against a motorsports operation
This "Case Note"¨ [Ned Westaway
(2014) Coventry v Lawrence: Nuisance Redefined. Environmental Law Review: July 2014, Vol. 16, No. 3, pp. 211-218.] has some very interesting things to say about "amenity nuisance" in relation to motorsport noise.
There is also some very interesting stuff on pages 214 and 215 about the character of the locality and the relevance of planning permission in relation to seeking damages for nuisance. For example:
"The court signalled a move away from the ‘character of the locality’ as a yardstick in considering the reasonableness of a defendant’s activities in nuisance claims; instead it settled on a more nuanced gauge – ‘the established pattern of uses’ in the locality.(17) Lord Carnwath referred to the ‘varied pattern of uses all of which need to coexist in a modern society’.(18) This must be welcomed: it provides a more fact-sensitive framework against which nuisance may be assessed."
and
"If demonstrating compliance with conditions may indicate that a party is not responsible for a nuisance, so 'evidence of failure to comply with such conditions, while not determinative, may reinforce the case for finding for nuisance under the reasonableness test.(28)'
It makes an interesting read.
There is also some very interesting stuff on pages 214 and 215 about the character of the locality and the relevance of planning permission in relation to seeking damages for nuisance. For example:
"The court signalled a move away from the ‘character of the locality’ as a yardstick in considering the reasonableness of a defendant’s activities in nuisance claims; instead it settled on a more nuanced gauge – ‘the established pattern of uses’ in the locality.(17) Lord Carnwath referred to the ‘varied pattern of uses all of which need to coexist in a modern society’.(18) This must be welcomed: it provides a more fact-sensitive framework against which nuisance may be assessed."
and
"If demonstrating compliance with conditions may indicate that a party is not responsible for a nuisance, so 'evidence of failure to comply with such conditions, while not determinative, may reinforce the case for finding for nuisance under the reasonableness test.(28)'
It makes an interesting read.
Allowable noise levels should be related to the frequency of the noise event
It is not uncommon for regulatory authorities to consider the frequency of noise events in determining the allowable noise levels. From memory, this was the approach taken by the Victorian Civil and Administrative Tribunal (VCAT) in determining how often the McAdam Park motocross facility at Barrabool would be allowed to operate during the "wind-up" phase prior to their legally mandated closure.
The extract below is from a New Zealand study.
"To prepare this noise management plan an event schedule was developed in an attempt to achieve a balance between how loud each motor racing event was and how often they occur. In the example given, Council decided that 50 events with a noise level of “background plus 5dB” would be permitted in any 12 month period. Where events were likely to be noisier than this, the number of events would reduce in accordance with Graph 1 below which is taken from the Guide. An event that exceeds the background noise level by 8dBA would count as two events. An excess of 30dBA is deemed to have a noise exposure equivalent to 10 events."
Citation: Marshall Day Acoustics (2007). Ruapuna Park and Christchurch Kart Club Noise Assessment. Christchurch, New Zealand. http://resources.ccc.govt.nz/files/TheCouncil/policiesreportsstrategies/districtplanning/cityplan/proposedplanchanges/PC52AcousticsReportOctober2007.pdf
p.16
The extract below is from a New Zealand study.
"To prepare this noise management plan an event schedule was developed in an attempt to achieve a balance between how loud each motor racing event was and how often they occur. In the example given, Council decided that 50 events with a noise level of “background plus 5dB” would be permitted in any 12 month period. Where events were likely to be noisier than this, the number of events would reduce in accordance with Graph 1 below which is taken from the Guide. An event that exceeds the background noise level by 8dBA would count as two events. An excess of 30dBA is deemed to have a noise exposure equivalent to 10 events."
 |
| dB above background vs annual events |
Citation: Marshall Day Acoustics (2007). Ruapuna Park and Christchurch Kart Club Noise Assessment. Christchurch, New Zealand. http://resources.ccc.govt.nz/files/TheCouncil/policiesreportsstrategies/districtplanning/cityplan/proposedplanchanges/PC52AcousticsReportOctober2007.pdf
p.16
A good overview of noise issues, measurement and regulation
Here's a really good technical (but very readable) article on noise: it's impacts on health; the measurement of different aspects of noise; enforcement of compliance with noise controls; and a whole lot more.
A whole lot of it is relevant to motocross noise, even though the article is focussed on traffic noise, and there are many things that will give you ideas to follow up in relation to motocross noise issues.
Just as a small taste of a much longer document:
"Unwanted noise has wide-ranging effects on human health to a far greater extent than merely to cause damage to hearing. Noise results in cardiovascular issues, sleep disturbance, headaches, nausea, impaired task functioning, depression and is implicated in many other health problems as well as inducing anti-social behaviours. (references 3,4,12,13,17,23) These unwanted health problems occur with noise levels which are a lot less loud than that which would cause hearing damage. Effects are also cumulative. The costs to health-care systems is enormous and researchers are finding more and more stress related problems that can be attributed to noise.
Governments, city planners and local councils are, in general, aware of the noise problem, and try to provide urban planning guidelines and rules to mitigate noise, but prefer to take 'baby-steps' and are over-cautious in order to avoid the creation of higher compliance costs. In most cases, authorities do not apply sufficient urgency or big enough solutions to the problem. There are already a large number of studies and comprehensive research documents published on the subject. No more are needed. Instead, some definitive progress is called for, which will certainly have a cost. However, studies have already shown that the costs of healthcare triggered by unwanted noise is more than a hundred times than what is currently spent on reducing or mitigating noise from vehicular traffic."
The article is from the website of a New Zealand company (Axino-tech Consulting and Services Ltd) and appears to be offered as a contribution to wider understanding of noise issues. There should be more companies sharing their expertise in such an altruistic way.
A whole lot of it is relevant to motocross noise, even though the article is focussed on traffic noise, and there are many things that will give you ideas to follow up in relation to motocross noise issues.
Just as a small taste of a much longer document:
"Unwanted noise has wide-ranging effects on human health to a far greater extent than merely to cause damage to hearing. Noise results in cardiovascular issues, sleep disturbance, headaches, nausea, impaired task functioning, depression and is implicated in many other health problems as well as inducing anti-social behaviours. (references 3,4,12,13,17,23) These unwanted health problems occur with noise levels which are a lot less loud than that which would cause hearing damage. Effects are also cumulative. The costs to health-care systems is enormous and researchers are finding more and more stress related problems that can be attributed to noise.
Governments, city planners and local councils are, in general, aware of the noise problem, and try to provide urban planning guidelines and rules to mitigate noise, but prefer to take 'baby-steps' and are over-cautious in order to avoid the creation of higher compliance costs. In most cases, authorities do not apply sufficient urgency or big enough solutions to the problem. There are already a large number of studies and comprehensive research documents published on the subject. No more are needed. Instead, some definitive progress is called for, which will certainly have a cost. However, studies have already shown that the costs of healthcare triggered by unwanted noise is more than a hundred times than what is currently spent on reducing or mitigating noise from vehicular traffic."
The article is from the website of a New Zealand company (Axino-tech Consulting and Services Ltd) and appears to be offered as a contribution to wider understanding of noise issues. There should be more companies sharing their expertise in such an altruistic way.
Monday 6 April 2015
Does the total number of objecting submissions matter?
There were 232 objecting submissions to the Development Application for the motocross facility at Adare. I doubt that any planning application in the Lockyer Valley Regional Council area has given rise to as many objections.
I've lost count of the number of people who have asked me questions along the lines of: "Why is it taking the Council so long to deal with this application if there were 232 objections?".
I can understand the the Planning Department is making sure that they do a thorough job of assessing all relevant aspects of the application and the submissions received, and I would not want them to do anything else. Good governance is in all our interests.
Does the total number of objecting submissions matter?
In its reasons for refusing the Bella Creek Multi Sports Park (i.e. motocross and 4-WD) development application the Gympie Regional Council included the following:
Having regard to the number of objections and concerns expressed in the objections, Council considers that the proposal is contrary to community expectations and not in the public interest.
In case you are wondering, there were 179 objecting submissions to that application. (The proponent later made a revised development application which was again refused.)
One of the other reasons given for the refusal that is relevant to the Adare motocross proposal was that:
The development will result in an unacceptable impact on rural character and amenity of the area.
Clearly an issue for anyone who lives in or has visited the Adare/Vinegar Hill area.
The property below is less than one kilometre* from the proposed motocross property and was photographed from a neighbouring property - pretty much fits the description of rural amenity in the quote from the Strategic Framework for the new LVRC Planning Scheme (which may be released for public comment at the end of April).
* I use distances from the edge of the proposed motocross property rather than from the Stage 1 track because the proponent has not given any indication of where the four additional Stage 2 tracks will be built. It seems likely due to considerations of vegetation, slope and conservation values that they will be in the area closest to surrounding properties.
I've lost count of the number of people who have asked me questions along the lines of: "Why is it taking the Council so long to deal with this application if there were 232 objections?".
I can understand the the Planning Department is making sure that they do a thorough job of assessing all relevant aspects of the application and the submissions received, and I would not want them to do anything else. Good governance is in all our interests.
Does the total number of objecting submissions matter?
In its reasons for refusing the Bella Creek Multi Sports Park (i.e. motocross and 4-WD) development application the Gympie Regional Council included the following:
Having regard to the number of objections and concerns expressed in the objections, Council considers that the proposal is contrary to community expectations and not in the public interest.
In case you are wondering, there were 179 objecting submissions to that application. (The proponent later made a revised development application which was again refused.)
One of the other reasons given for the refusal that is relevant to the Adare motocross proposal was that:
The development will result in an unacceptable impact on rural character and amenity of the area.
Clearly an issue for anyone who lives in or has visited the Adare/Vinegar Hill area.
The property below is less than one kilometre* from the proposed motocross property and was photographed from a neighbouring property - pretty much fits the description of rural amenity in the quote from the Strategic Framework for the new LVRC Planning Scheme (which may be released for public comment at the end of April).
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