Felzip Pty Limited v Warringah Shire Council

[1989] NSWLEC 195

Land and Environment Court

of New South Wales

CITATION:	Felzip Pty Limited v. Warringah Shire Council [1989] NSWLEC 195
PARTIES:	APPLICANT Felzip Pty Ltd RESPONDENT Warringah Shire Council
FILE NUMBER(S):	10541 of 1988
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	05/19/1989
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

HIS HONOUR: At its meeting of 12thJuly, 1988 the Warringah Shire Council ("the Council") refused a development application to use premises known as 317Mona Vale Road, Terrey Hills for the purpose of a helipad, for the following reasons:|CF2.|PSI

"1. Pursuant to Section 90(1)(b) of the Environmental Planning & Assessment Act 1979, the applicant has not demonstrated to Council's satisfaction that the proposal will not have an adverse environmental impact on the area.

2. Pursuant to Section 90(1)(p) of the Environmental Planning & Assessment Act 1979, the applicant has not satisfied Council that the proposal is satisfactory in terms of major items of concern raised in public submissions made under Section87 of the E.P.&A.Act, 1979.

3. Pursuant to Section90(1)(r) of the Environmental Planning & Assessment Act 1979, the proposal is not in the public interest.

4. Pursuant to Section90(1)(n) of the Environmental Planning & Assessment Act 1979, the applicant has not satisfied Council that matters of concern raised by public authorities can be satisfactorily resolved, specifically:

i) Distraction to motorists using both Mona Vale Road and Myoora Road and likely impact on traffic safety.

ii) Forced landing sites have not been identified and would appear to be non- existent to satisfy the safety requirements of the Department of Transport and Communication.

5. Pursuant to Section90(1)(o) of the Environmental Planning & Assessment Act 1979, the proposal is likely to adversely affect the existing and likely future amenity of the neighbourhood.

6. Pursuant to Section90(1)(h) of the Environmental Planning & Assessment Act 1979, the proposal represents an unsatisfactory extension of the use of the adjacent Australian Native Landscapes on to the subject site given the environmental problems as identified.

7. The proposed hangar and a 2.5m high concrete acoustic barrier is located within 7.5m from the side boundary and is therefore contrary to Council's side setback policy for the non-urban area."|CF1.|PSO

The proposal was to use part of the land as a helipad for Bell JetRanger 206A helicopter up to six days per week, Monday to Saturday, during daylight hours only, with a maximum of eight movements per day, i.e. four take-offs and four landings. However, at the hearing the applicant amended that proposal to limit the use to one take-off and one landing per day, Monday to Saturday inclusive.

The land is situate within a Non-Urban 1(a) Zone pursuant to the provisions of the Warringah Local Environmental Plan 1985. Helipads are a permissible use therein with the consent of the Council. The development is also "designated development" and the application has been dealt with pursuant to the relevant provisions of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act") for such classification of development.

The application was advertised and there was substantial public objection, mainly from the occupants of dwelling houses in the immediate or near vicinity of the subject land.

The character of the local environment is difficult to describe owing to the variety of uses therein. Mona Vale Road is a highly trafficked, noisy highway and undoubtedly has had an influence upon the development of land having a frontage thereto. In general, the area could be described as a mixed rural/residential area with scattered commercial and rural industry. An intensive rural industry known as Australian Native Landscapes abuts the subject premises to the north and north-west. There is a caravan park immediately to the south-west, with the headquarters of the "Australian Geographic Magazine" further south. To the north-east, the adjoining property number315 is a dwelling house, and to the north-west a rural dwelling and an animal boarding establishment thereon. The premises situate on the northern side of Myoora Road are all rural/ residential developments. Mona Vale Road is a natural physical boundary of the relevant environment.

Ihave made no reference to the nature of development on the eastern side of Mona Vale Road because, at the hearing, the applicant also abandoned one of the two flight paths proposed in the application. The abandoned flight path approached from the east and would have caused helicopters to fly low over Mona Vale Road.

The proposal is to site the helipad in the rear of 317Mona Vale Road, with a north-western flight path over the adjoining property used by Australian Native Landscapes, across Myoora Road, thence above a right of way over private property in Myoora Road and then across the Ku-ring-gai National Park.

Erected on the subject land are two buildings originally used as dwelling houses, and a number of sheds. The dwelling house number317B is close to the adjusted frontage of Mona Vale Road and appears to be uninhabited. The residence at number317 is situate on a building line well back from Mona Vale Road and behind a sandstone edifice described as |CF2.|PSI"sandstone retaining wall and earth mounding"|CF1.|PSO, which includes a substantial waterfall and windmill.

A new hangar for the helicopter was proposed between the dwelling house and the boundary with premises number315. As a consequence of comments made by myself as to the location, bulk and height of that hangar, an amended proposal was submitted during the hearing to provide for a hangar on the southern side of the residence at number317, having a scale and character more in keeping with that of the existing residence. There is little evidence before the Court, but it appears that the said residence is not presently used as a dwelling house.

Both the Council and the applicant engaged acoustic experts to deal with the inevitable noise levels emanating from the use of a helipad or helicopters. It is common ground that the helipad cannot be used within standards acceptable to the State Pollution Control Commission on the subject site unless acoustic barriers are built on at least two sides of the helipad so as to attenuate noise.

A number of occupants of premises having a frontage to Myoora Road gave evidence to outline objections to the proposal. Such objections could be summarised as safety, loss of privacy, noise, out of character with the locality, danger to horses and other animals, distraction to drivers and the depreciation of land values. Myoora Road has to serve both the residential development and rural and other industries in the locality and a proposed hotel. It has bad geometry and it is submitted by the objectors that low-flying helicopters would be a hazard to motorists, cyclists and horse riders.

Ihave carefully considered the proposed flight plan for helicopters using the subject helipad and am satisfied that, owing to the height above premises on the north-western side of Myoora Road, its use for two movements per day in the position nominated is unlikely to give rise to any real interference with the amenity of those premises if hours of operation are limited to usual business hours.

The most predominant factors influencing the relevant environment are traffic on Mona Vale Road and the use of the Australian Native Landscapes property. That land is used for a most intensive rural industry involving various kinds of bulk materials. That use involves heavy machinery, including front end loaders and large dump trucks. It is obvious that during business hours adjoining premises and those with a frontage to Myoora Road are subjected to constant loud noise levels from heavy vehicles and equipment associated with the Australian Native Landscapes use.

The flight path over Australian Native Landscapes to the subject helipad proposes a rapid ascent and descent in line with an existing shed thereon. The helicopter is proposed to reach ground level at the helipad just inside the subject property to the east of Australian Native Landscapes land. The helipad is intended to be used by personnel from Australian Native Landscapes. It is apparent that the subject site could only be used for the purpose of a helipad, all other things being satisfactory, if the Australian Native Landscapes site was at all times used in conjunction with the subject premises. The use of the proposed helipad, if approved, would compel low flying helicopters over the land used by Australian Native Landscapes, thereby limiting the way in which it can be used and developed. Australian Native Landscapes does not own that land.

Iam satisfied on the evidence that the helipad and proposed flight path meet the requirements of the Civil Aviation Authority and, notwithstanding non-compliance with its standards, is likely to obtain licensing by the State Pollution Control Commission. It is apparent that the future development of the precinct will be of a more intensive nature than that which presently exists on a number of allotments in the locality. Council contends that there will be pressures for redevelopment in the area, such as clubs and uses such as the nearby Australian Geographical offices and the like, such that residential use of land between Myoora Road and Mona Vale Road in the future will become more limited. The Council has also adopted a Non-Urban 1(a) Study and is awaiting the issue of a s.65 Certificate with respect to a Draft Local Environmental Plan affecting the subject area. Such scheme, if adopted, will make this precinct one of the few areas in which educational establishments will be permitted in the Shire.

A great deal of evidence was given with respect to the safety aspects of the flight path, but Iam completely satisfied that, all other things being satisfactory, this application should not be rejected on the grounds of safety, either of the helicopters or premises near the flight path.

Notwithstanding the poor geometry of Myoora Road and the nature of traffic thereon, Iam unpersuaded that a helicopter operation with one flight in and out per day is likely to have any significant impact upon animals in the area or upon road users, including horse riders and cyclists. Iam of the opinion that the likely impact on the use of Myoora Road of such a limited number of flights was exaggerated.

The bulk of the evidence called in the hearing was with respect to likely noise impact. This evidence was more extensive than required because it was initially compiled to assess the impact of the larger operation proposed in the application. A number of test flights were carried out and measurements taken in conjunction with officers of the State Pollution Control Commission to determine whether or not the site could meet criteria recommended by that Commission. Those criteria are:|CF2.|PSI

"The criteria comprise three separate components, each of which should be satisfied, at the nearest affected buildings:

i) The measured LAeq,T (assessed over the entire daily operating time of the helipad) should not exceed 55dB(A) for a residence or 65dB(A) for a commercial property.

Where the existing ambient Leq (i.e. Lo) is greater than these criteria an increase of 2dB(A) above the existing ambient Leq is acceptable.

ii) The measured maximum noise level LAmax should not exceed 82dB(A) at the nearest residential premises or 85dB(A) at the nearest commercial building.

iii) Operation outside the hours of 7am to 10pm should not be permitted except for emergency flights."|CF1.|PSO

In my judgment, such criteria relying mainly on an LAeq are inappropriate for a use which involves only one or possibly two noises in the one day. Criteria involving elements of averaging, in my opinion, in such circumstances are of little assistance and impact is best assessed by reference to the LAmax.

Noise measurements carried out by the applicant demonstrate that maximum levels for the operation will exceed the State Pollution Control Commission criteria at a number of locations and in different conditions. Those levels are:

315 Mona Vale Road -

84 dB(A) good conditions, 85dB(A) tail wind 22Myoora Road -

84dB(A) good conditions, 88dB(A) possible tail wind

Caravan park site Mona Vale Road -

86dB(A) good conditions, 88dB(A) tail wind.

Exceeding the State Pollution Control Commission criteria in this way was described by the acoustic consultant called by the Council, as being |CF2.|PSI"well above a significant level"|CF1.|PSO. He examined the acoustic barriers recommended by consultants to the applicant and was of the opinion that |CF2.|PSI"the barriers suggested would have an insignificant effect upon maximum noise levels from operations at all locations, taking into account the fact that maximum noise levels occur when the helicopter is off the pad"|CF1.|PSO. No noise measurements were taken to assess the impact on either dwelling house on the subject premises, or at any location within the adjoining Australian Native Landscapes property, or at any part of 22Myoora Road, except close to the frontage to Myoora Road.

There is no objection to the proposal by the owner or occupier of the Australian Native Landscapes property, nor from the owner of the caravan park, nor the present owner of premises number315. There is also no objection from a large number of occupants of caravans on the caravan park site. However, Inote that the owner of the caravan park is also a Director of the applicant company, and also that the present owner of number315 has sold those premises and is about to move to Queensland.

Had this application still been in the form proposed and assessed in the original application, Iwould have had no hesitation in rejecting it as having an impact unacceptable in the subject location. A flight path over and near dwelling houses with levels measured and described in the environmental impact statement in my opinion are totally inappropriate and unacceptable. Also, the proximity of the helipad itself to existing dwelling houses for the number of flights originally proposed was totally unacceptable. In my opinion, a helipad with that magnitude of movements could only be appropriate in this general locality if situated on a site which afforded a flight path over areas undeveloped for residential purposes.

In order to make an attempt to meet the criteria of the State Pollution Control Commission the applicant proposed a 2.5metre concrete block wall |CF2.|PSI"immediately in front of tree line"|CF1.|PSO along the northern boundary of the subject property and the adjoining house number315. Inadequate specification was given of the nature of the proposed construction, and it transpired that it was to be constructed with very large blocks of waste concrete which were proposed to be laid as a wall. As a consequence of the relocation of the proposed hangar, the length of that wall is now unknown, but probably would present as a structure about 60metres long, 2.5metres high and only about 1metre from the boundary. This would locate the structure below the drip line of existing trees and the effect thereon is unknown. The inappropriateness of a monolith of that description in close proximity to the boundary of land zoned Non-Urban is obvious, and such was conceded by the consultant town planner for the applicant. To ove

rcome the inevitable unsightliness and impact of such a structure, the consultant recommended terraced or stepped construction of the blocks, and the incorporation of appropriate landscaping.

No noise buffer wall was proposed to the residence at number317, nor the Australian Native Landscapes property, nor the rear of 22Myoora Road. Unacceptable noise levels above the proposed walls when the helicopter was airborne were denied by the applicant.

Notwithstanding the significant limitation on the number of flights for the proposed helipad, Ihave come to the conclusion that the proposed use at this site in the present circumstances should be refused. Adjoining premises are clearly within a distance from the helipad within which it is inevitable that nuisance will occur unless effective measures are taken to attenuate noise; see the publication |CF2.|PSI"Helicopter Landing Facilities - Guidelines for the Location and Approval in Urban Areas"|CF1.|PSO, 9thOctober 1988, issued by the Department of Planning and prepared with the assistance of the State Pollution Control Commission.

Iam unpersuaded that any of the proposed acoustic walls will attenuate noise levels at buildings on adjoining premises so as to bring them within acceptable LAmax criteria, or those recommended by the State Pollution Control Commission. Iam unpersuaded that airborne helicopters can achieve acceptable LAmax, particularly in adverse weather conditions. Such conditions, in my opinion, are most relevant to the assessment of likely adverse impact in view of the limitation of the number of flight paths to this proposed helipad to one. Iam unpersuaded that Ishould overlook the likely exceedance of State Pollution Control Commission criteria at adjoining premises, merely because they are presently owned by co-Directors, presently leased by associated companies, or presently occupied by an owner who has sold the property and intends to move in the near future.

In all the circumstances, whilst the reduction in the number of movements for this helipad considerably enhanced the prospects of the grant of an approval, for the above reasons Iam satisfied that the application should be rejected.

The orders of the Court are therefore:

1. Appeal dismissed.

2. Development consent refused.

3. Exhibits may be released.

4. No order as to costs.