VCAT Decision, Metroll Victoria v Snowy Hydro

The following is an excerpt from an Interim Enforcement Order, following complaints that a gas fired power station occupied by Snowy Hydro Ltd caused adverse health effects through unregulated noise and vibration to the employees of Metroll Victoria Pty. Ltd. within an Industrial Park in Victoria:

75 Noise in particular, is an effect that is not comprehensively covered by regulation or standards.

SEPP N-1 (Control of Noise from Commerce, Industry and Trade), which is referred to in condition 4 of the permit, is not relevant to the  Metroll  property because SEPP N-1 prescribes noise limits which are to be met at houses and other noise sensitive locations. There are no State Environment Protection Policies, and essentially no legal limits, on noise emission from industry to public space such as parkland and the like, to other industries or non-residential land uses. Occupational noise limits apply only within a site[15].

76 This does not mean though that an industry can ignore its neighbours in terms of noise emissions.

It is for this reason that conditions such as condition 3 are frequently included in permits. They are intended to ensure that the use does not cause a nuisance by any of the ways specified. In the Industrial 3 Zone it is a planning scheme requirement that the use must not adversely affect the amenity of the neighbourhood, including through the emission of noise and vibration.[16] Whilst there is no corresponding provision in the Industrial 2 Zone, the decision guidelines in clause 33.02–2 of the planning scheme require consideration of likely effects on the neighbourhood, including noise levels; clause 65.01 requires consideration of the effect on the amenity of the area; and section 60(1)(e) of the Act requires consideration of any significant effects which the responsible authority considers a use or development may have on the environment. All these considerations mean that the council’s decision to include condition 3 in the permit (a condition which was not appealed against by Snowy Hydro at the time the permit was granted) was a reasonable condition to include as a condition that was intended to benefit other properties in the locality.

77 The uncontested evidence is that the power station is adversely affecting the health and wellbeing of  Metroll  employees and interfering with their ability to work by reason of the emission of noise and vibration.

Victorian Civil and Administrative Tribunal

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Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748 (7 May 2007)
Last Updated: 9 May 2007

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NOS. P699/2007, P1084/2007, P1093/2007 & P1094/2007

CATCHWORDS

Section 120 Planning & Environment Act 1987 – interim enforcement order – issues to be considered – serious question to be tried – effect of not making order – undertaking as to damages.

APPLICANT
Metroll Victoria Pty Ltd
Snowy Hydro Ltd
RESPONSIBLE AUTHORITY Wyndham City Council
RESPONDENT/OCCUPIER Snowy Hydro Ltd
RESPONDENT/OWNER Vaughan Industrial Projects Pty Ltd
SUBJECT LAND 147–161 Cherry Lane LAVERTON NORTH VIC 3026

WHERE HELD 55 King Street, Melbourne
BEFORE Helen Gibson, Deputy President
HEARING TYPE Hearing
DATES OF HEARING 30 March, 3 April & 3 May 2007
DATE OF ORDER 7 May 2007

CITATION Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748

INTERIM ENFORCEMENT ORDER

1 In application P699/2007, pursuant to section 120 of the Planning and Environment Act 1987 and commencing on 11 May 2007, the respondent/occupier, Snowy Hydro Limited, must not operate the Power Station on the subject land between the hours of 8.00am to 5.00pm Mondays to Fridays (except on public holidays or in the event of an emergency) until further order of the Tribunal.

2 Pursuant to section 129(1)© of the Victorian Civil and Administrative Tribunal Act 1998:

a) Metroll Victoria Pty Ltd must give any other party to these proceedings and any person who is to give evidence in this proceeding on behalf of that party access to the land at 138 – 142 Cherry Lane, Laverton North for the purpose of inspection and collection of evidence, including testing.

b) Snowy Hydro Limited must give any other party to these proceedings and any person whose is to give evidence in these proceedings on behalf of that party access to the subject land for the purpose of inspection and collection of evidence, including testing.

c) Any party wishing to gain access pursuant to this order must provide the relevant owner/occupier of the land in question 24 hours notice in writing of intention to enter the land and provide details of the time access is required and the nature of the testing to be undertaken.

d) Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Metroll Victoria Pty Ltd is joined as a party in applications P1084/2007, P1093/2007 and P1094/2007.

3 In applications P1084/2007, P1093/2007 and P1094/2007:

a) By no later than 16 May 2007 the responsible authority must file and serve any statement of grounds.

b) By no later than 30 May 2007 Snowy Hydro Limited must file and serve any request for further and better particulars of the responsible authority’s statement of grounds.

c) By no later than 13 June 2007 the responsible authority must file and serve its further and better particulars of the responsible authority’s statement of grounds.

4 Each party, other than Vaughan Industrial Projects Pty Ltd, must:

a) By no later than 30 May 2007, file with the Tribunal and serve on all other parties a list of all documents in its possession or under its control relevant to this application. All documents must be listed and if privilege is claimed in respect of any particular document, this must be identified.

b) Within 14 days of receipt of a request from another party to do so, make the documents available for inspection during business hours at its usual place of business or at an address in Melbourne.

c) Within 14 days of receipt of a request from another party to do so, provide to that party photocopies of the documents at the expense of the party requesting the copies

5 The proceedings are referred to mediation on 29 June 2007 at 10.00am for 1 day, and under section 89 of the Victorian Civil and Administrative Tribunal Act 1998 the following directions are given for the mediation:

a) A natural person who is a party to the proceeding must attend the mediation either in person or by a representative who has authority to settle the proceeding on behalf of that party;

b) Each body corporate which is a party (including a responsible authority, referral authority or statutory authority) must attend the mediation by a representative who has authority to settle the proceeding on behalf of that party;

c) If the application or permit application subject to the proceeding was made in the name of a person as agent or consultant for a principal, the principal must either attend the mediation in person or by a representative who has authority to settle the proceeding on behalf of the principal;

d) Each party should commence the mediation with a short written statement briefly describing the proceedings and setting out the issues which that party considers are in dispute.

6 Not later than 10 business days before the date listed for the hearing each party must serve on the other parties and file with the Tribunal a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which that party intends to rely at the hearing not yet filed and served.

7 Application P699/2007 for an enforcement order pursuant to section 114 Planning & Environment Act 1987 shall be heard and determined together with applications P1084/2007, P1093/2007 and P1094/2007.

8 The proceedings are listed for hearing for 5 days commencing on 23 July 2007 before a presidential member and a member with experience in environmental matters.

9 Liberty to apply.

10 Costs reserved.

Helen Gibson
Deputy President

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