Hartley v Blacktown City Council

[2005] NSWLEC 454

Land and Environment Court

of New South Wales

CITATION:

Hartley v Blacktown City Council [2005] NSWLEC 454

PARTIES:

APPLICANT
Mark Hartley

RESPONDENT
Blacktown City Council

FILE NUMBER(S):

11120 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Helipad - landscaping - nursery - noise

DATES OF HEARING:

15/08/2005

EX TEMPORE JUDGMENT DATE:

08/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Hartley, self represented

RESPONDENT
Mr C Drury, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 August 2005

11120 of 2004 Mark Hartley v Blacktown City Council

JUDGMENT

1 This appeal is against council’s refusal of a development application for a private helipad at 58 South Creek Road, Shanes Park. The helipad is to be located on the semi rural property, which comprises 2 ha. It contains a number of large sheds that are used for various landscaping, nursery and arboricultural college activities.

2 A number of issues were identified initially with the principal one being noise disruption and associated disamenity to the neighbouring properties. A considerable number of objections were made to the proposal and at the hearing this morning the residents have been given the further opportunity to explain their concerns.

3 At the same time the draft conditions of consent have been provided for consideration and they identify the specific flight paths that limit flights into and off the property, together with a restricted number of weekly flights. On this basis, together with the noise limitation aspects, it seems to me that reasonable steps have been taken to allay most of the neighbours’ concerns, except in maybe exceptional circumstances where the flight path cannot be safely followed.

4 However I note that in response to the neighbours’ concerns, particularly about the possibility of frightening horses, the flight path generally restricts flights over the subject paddocks and considering the helipad is substantially surrounded by the existing buildings, therefore this concern is unlikely to be realised. But I also note the owners offer to generally notify the immediate neighbours of intended flights, so that any safety action with animals can be taken. In my assessment, this should allow the development to operate on a relatively good co-operative, neighbourhood basis.

5 However, it is apparent from the evidence that there have been a number of conferences along the way between the respective parties and that follows Directions from the Court that the parties’ acoustics experts confer. There are two detailed acoustic reports, which have assessed the noise impact of the heliport and they have agreed that, with limited number of proposed flights and taking the background noises that occur here, then the noise impacts should be acceptable. This is on the basis that the noise generated is limited to a specified maximum level, as measured at a nominated house, which is the closest neighbouring house. As there has been no substantive argument to this, I accept these conditions as being reasonable in the circumstances, notwithstanding that it will mean that there will be some noise changes and the helicopter flights will nevertheless be audible at times.

6 Following the agreement to the draft conditions, the parties have subsequently agreed to consent orders, which means that both parties now accept that it is reasonable to issue the consent, subject to those conditions that require minor fine tuning work to reflect matters discussed on-site this morning.

7 Considering all the matters raised at the on-site hearing, I am satisfied that cl 9(3) restrictions in the LEP have been satisfied and this application demonstrates reasonable compliance with and is consistent with the relevant objectives in the LEP to merit consent. So that by consent, the Court orders are:

8 Court Orders.

1. The appeal is upheld.

2. Development application for a helipad for private use associated with residential and plant nursery and arboricultural, horticultural and agricultural use of Lot 89 DP 28847, being 58 South Creek Road, Shanes Park, is determined by the grant of consent subject to the conditions set out in Annexure 'A' hereto.

3. Each party is responsible for their own costs.

___________________

R Hussey
Commissioner of the Court

rjs/ljr