Morgan and City of Albany - [2008] WASAT 211

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MORGAN and CITY OF ALBANY [2008] WASAT 211

MEMBER: MR J JORDAN (MEMBER)

HEARD: SITE VISIT 8 MAY 2008; HEARING 9 MAY 2008; FINAL SUBMISSION 16 JUNE 2008

DELIVERED : 12 SEPTEMBER 2008

FILE NO/S: DR 386 of 2007

BETWEEN: PHILIP FRANKLIN MORGAN
Applicant
AND
CITY OF ALBANY
Respondent

Catchwords:

Town planning - Development - Refusal - Private recreation (junior motorcycle and allterrain vehicle rider training) - Rural zone - General agriculture classification in draft local planning strategy - Character and existing amenity of locality - Operation during school holidays and weekends - Hours of operation - Noise - Maximum engine capacity of 100cc - Total of eight motorcycle and allterrain vehicles - Age of students - Traffic generated - Objection by neighbours - Reports of acoustic experts - Compatibility with local scheme and policy - Conditions to control use - Time limited approval

Legislation:

City of Albany Town Planning Scheme No 3, cl 3.1.13, cl 3.2, cl 5.1.4, cl 5.4
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Town Planning Amendment Regulations 1999 (WA)

Result:

The application for review was allowed
Planning approval has been granted for the proposed private recreation (junior motorcycle and allterrain vehicle training) subject to conditions

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr R Finn (As Agent)

Solicitors:

Applicant: Self-represented
Respondent: City of Albany

Case(s) referred to in decision(s):

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Shepherd and Anor v Shire of Murray [2004] WATPAT 71
Stein & Anor and Shire of Chapman Valley [2006] WASAT 105
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda [1993] WATPAT 17; (1994) 10 SR (WA) 296
Townsend & Anor and Shire of Donnybrook/Balingup [2005] WASAT 276
Wright and Shire of Chittering [2003] WATPAT 14; (2003) 33 SR (WA) 182

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Philip Morgan applied to the City of Albany for planning approval to run a private recreation use of motorcycle and allterrain vehicle training for children up to 14 years of age at his property at Piggott Martin Road, Lowlands, 35 kilometres west of Albany. The City refused the application because it considered the use was inconsistent with the objectives for the Rural zone, would be incompatible with the use and development of land in the locality and would affect the amenity of the locality.
Mr Morgan clarified that the vehicles used would be no more than 100cc engine capacity, that there would be no more than eight used in each training session, that the training area would be in the centre of his 52 hectare lot surrounded by vegetation and that he would operate only on weekends, public holidays and school holidays.
The Tribunal received statements from two neighbours that assisted in identifying the existing character and amenity of this rural locality. It was then necessary to consider what the effect of the proposed use would be on the locality and the neighbours. The Tribunal had the benefit of evidence from two noise experts and a consultant town planner and submissions from both Mr Morgan and the City.
The first issue considered was whether the proposed use would impact on the amenity of the area. The main concerns raised related to the potential impact on the local amenity from noise, traffic and dust. The Tribunal found that the potential impact of the proposed use on the amenity of the locality would not be such as to warrant a refusal of the proposed development. Noise, if heard at nearby residences, would normally be barely audible. In respect of traffic and dust from the road, the Tribunal formed the view that any impact would be at an acceptable level. Dust from the use eroding the site could be avoided by conditions of approval.
The second issue addressed was whether the proposed use was compatible with the City's town planning scheme and policies and land use in the locality. The town planning scheme and policies are directed to nonagricultural uses not having an unacceptable impact on existing and potential future agricultural uses. The Tribunal formed the view that the proposed use need not have an unacceptable impact if appropriate conditions were able to be imposed that would minimise potential conflict.
The Tribunal then considered whether the proposed use might be regulated by conditions to control it rather than be refused. The Tribunal concluded that conditions would identify what was allowed and would enable the use to be reasonably policed. One requirement that the Tribunal imposed was that an approval be for five years in the first instance. This would enable the use to proceed but be monitored. At the end of that period a fresh application could be considered and if there were then no concerns about how the use was conducted and no conflicts with neighbouring uses, a further approval could be issued.
The Tribunal approved the proposed use of private recreation (junior motorcycle and allterrain vehicle training) subject to appropriate conditions.

Introduction

These proceedings involve an application brought by Mr Philip Morgan (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Albany (City or Council) to refuse an application for development approval of a use categorised by the City as private recreation (junior motorcycle training) use at 290 Piggott Martin Road, Lowlands (the site).

Site and locality

The site is at Lowlands about 35 kilometres west of Albany and about 2.5 kilometres in a direct line south from Youngs Siding. It has an area of 52 hectares and an irregular shape with the longest boundary being from northwest to southeast. Frontage is to Piggott Martin Road, a gravel road along the southern and southwestern boundaries. The site falls from the eastern end to the northwest. At the centre of the site is a cleared area of rough pasture about 300 metres eastwest and about 175 metres northsouth. At the eastern end, separated by a fence, are a house and sheds. Remnant vegetation extends in an arc around the northeastern, eastern and southern edges of the cleared area. About 40% of the site at the western end is planted to blue gums.
On Thursday afternoon, 8 May 2008, the Tribunal conducted a view of the site in the company of the applicant and Mr Robert Fenn, representing the respondent. A walk over the site included the area to be used for the motorbike training, the fence line along Piggott Martin Road and the northern boundary and the vicinity of the house and sheds at the southern end. Mr Fenn and Mr Morgan then drove the Tribunal member to near the house and chalets of Mrs Claudia Form, about 1 kilometre to the south at 233 Piggott Martin Road, and the house of Mr Peter Holmberg, at 411 Piggott Martin Road, about 400 metres to the northwest of the training area. A drive was then taken around a circuit of roads, including Piggott Martin Road, Thomson Road, Lake Saide Road, Lower Denmark Road and then back along Piggott Martin Road to the site.
Piggott Martin Road is generally along the alignment of the foot of a break in slope with the land to the south and southwest rising significantly up from the road. Generally speaking, there is remnant vegetation along the margins of the road. The northwest, north and northeast of the area is flat, with an extensive drainage system and properties mostly cleared for grazing.

Planning framework

The site is zoned 'Rural' under the City's Town Planning Scheme No 3 (TPS 3). The objectives for the Rural zone at cl 3.1.13 of TPS 3 are:
To ensure that high quality agricultural land is retained for primary production. To regulate uses which might conflict with farming interests, and foster uses which are complementary to such interests. To preserve rural land within easy reach of urban areas.
The City categorised the proposed use as 'Private Recreation' which is defined in the Town Planning Amendment Regulations 1999 model scheme text to mean 'premises used for indoor or outdoor leisure, recreation or sport which are not usually open to the public without charge'.
Private recreation is not listed within the use class column of Table 1 Zones of TPS 3. Clause 3.2 of TPS 3 provides that the Council may determine that a use not listed:
•is consistent with the objectives of the zone and therefore permitted (cl 3.2(a));
•may be consistent with the objectives of the zone and so advertise it as provided for in cl 5.1.4 (cl 3.2(b)); or
•is not consistent with the objectives of the zone and is therefore not permitted (cl 3.2(c)). The proposed use was advertised.
Clause 5.4 of TPS 3 outlines the matters to be considered in deliberating on an application. These include:
(a)the aims and provisions of the Scheme …;
(b)the requirements of orderly and proper planning …;
(c)any approved Statement of Planning Policy of the Commission;
(d)any approved Environmental Protection Policy under the Environmental Protection Act 1986;
…
(f)any Town Planning Scheme Policy adopted by the Council under clause 6.9, and any other plan or guideline adopted by the Council under the Scheme;
…
(i)the compatibility of a use or development with its setting;
…
(l)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(n)the preservation of the amenity of the locality;
…
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring, and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)whether the proposal is likely to cause soil erosion or land degradation;
…
(y)any relevant submission received on the application;
…
(za)potential impacts of noise, dust, light, risk and other pollutants on surrounding land uses; and
(zb)any other planning consideration the Council considers relevant.
The Council has adopted a Local Rural Strategy (rural strategy). This contains at 3(a) of the introduction:
The broad objective of the 'rural zone' is to ensure that high quality agricultural land is retained for primary production, to regulate uses which might conflict with farming interests and foster uses which are complementary to farming interests.
The rural strategy includes the following which are relevant to assessing the impact of a proposed use or development on agriculture:
GP28 impact of land uses on agriculture;
All nonagricultural land use proposals will be assessed in terms of their potential impact on or conflict with:
(a)existing agricultural land uses and management practices, including potential expansion of those uses; and
(b)likely development of adjoining land by 'P' uses.
GP29 treatment of land use proposals in agricultural areas:
(a)where a nonagricultural land use proposed would cause unacceptable adverse impacts on or conflicts with agricultural land uses, the proposal will not be supported; and
(b)where a nonagricultural land use proposal would affect land within an agricultural area but would not cause unacceptable conflicts with agricultural land uses, the proposal may be supported by Council, subject to conditions which would minimise the potential for land use conflicts (eg, setbacks from agricultural uses and limits on the scale of the development).
The rural strategy also defines 'Wilson Inlet Policy Area 1' which includes those properties on the southern side of Piggott Martin Road to the east of the driveway that provides access to the review site. The rural strategy supports development of up to three accommodation units on lots greater than 20 hectares. Mrs Form of 233 Piggott Martin Road has developed two chalets on her property, consistent with the rural strategy.
The Council has a draft Albany Local Planning Strategy (draft planning strategy) in which the site is identified for 'general agricultural' purposes.
The Western Australian Planning Commission has adopted State Planning Policy No 11 'Agricultural and Rural Land Use Planning' (SPP 11). An objective of SPP 11 is to protect agricultural land resources by discouraging land uses unrelated to agriculture from locating on agricultural land.

Proposed use

Mr Morgan is seeking planning approval to conduct motorcycle and allterrain vehicle (ATV) rider training lessons on the site. The documents attached to the application form lodged with the City were imprecise as to the type of customers and the days and hours the use would operate. At the hearing the applicant made submissions on the particular use he was seeking to have the Tribunal approve. Specifically identified from the respondent's bundle of documents (exhibit 6) at page 3 and page 79 respectively, a statement by Mr Morgan of what he wanted to do and a vertical aerial photograph which showed the site with the training area outlined and the parking area identified.
At the site visit, Mr Morgan displayed examples of the motorbikes and an ATV that would be used, all of which were 100cc engine capacity or less. He also pointed out the training area in which the training circuits would be set out and the general location of parking in the vicinity of the house.
Mr Morgan said he was seeking approval for a use comprising:
•motorcycle and allterrain vehicle rider training for children up to 14 years of age;
•perhaps training for parents of some of the pupils;
•all pupils to ride under supervision;
•hours of operation to be 8 am to 7.30 pm in summer;
•no operation at night;
•low powered motorcycles and ATVs to be used;
•no motorcycle or ATV noisier than those used by farmers;
•no racing or competition;
•the motorbikes and ATVs to operate within the training area shown on the page 79 sketch;
•the training area to include concentric training circuits;
•the circuits will not be sand tracks;
•a total of eight machines - motorcycles and ATVs operating at one time;
•up to five sessions per day; and
•a session to comprise of an hour and a half of instruction which includes one hour of actual riding.
Mr Morgan provided the following table setting out operating days and times for which he was seeking approval:

Time of Year	Possible Operating Days	Number of Daily Sessions	Session Start Times
January School Holidays	31	Up to 5 (but only on peak demand days)	9 am, 11 am, 1 pm, 3 pm, 5 pm
Easter	4	Up to 4	9 am, 11 am, 1 pm, 3 pm
April School Holidays	16	2	10 am 2 pm
July School Holidays	16 (probably too wet to operate)	2 (probably will not operate)	10 am, 2 pm
Time of Year	Possible Operating Days	Number of Daily Sessions	Session Start Times
October School Holidays	16	2	10 am, 2 pm
December School Holidays	20	Up to 5 (but only on peak demand days)	9 am, 11 am, 1 pm, 3 pm, 5 pm
Remaining weekends	68 Saturdays & Sundays	2	10 am, 2 pm

Council's decision

The Council, on the submission it then had before it, refused the application on 18 October 2007 for the following reasons:
1.The proposed land use is inconsistent with the objectives for the Rural zone as identified in the City of Albany Town Planning Scheme 3;
2.The proposed land use is incompatible with the use and development of land in the locality;
3.The proposed land use will affect the amenity of the locality;
4.The proposed land use will impact negatively upon adjoining land uses due to the levels of noise, dust and other pollutants that will be generated; and
5.There has been considerable community opposition to the proposed development.

The issues

The respondent said that an issue was whether the proposed use would provide a training outcome. There is no dispute that Mr Morgan has no formal certification as a motorcycle instructor, but neither was there any evidence that a formal qualification is required to offer lessons. There was evidence that he has previously offered lessons at Forrestdale. What certification is now required to work with children was not raised at the hearing and any decision on the matter would not remove any obligations Mr Morgan has in that regard. The lessons would be offered, but whether all the children will acquire the skills to ride a motorbike is not considered by the Tribunal to be a planning issue. It is the running of the lessons on the site that is to be considered on its merits. The Tribunal has identified the following issues:
1)whether the proposed use will impact on the amenity of the area;
2)whether the proposed use is compatible with TPS 3, policies and land use in the locality; and
3)whether the proposed use might be regulated to control it rather than be refused.

Whether the proposed use will impact on the amenity of the area

Preservation of the amenity of the locality is listed at cl 5.4(n) of TPS 3. Discussed by the parties and their witnesses as significant to the consideration of the impact of the proposal on amenity were noise, traffic and dust.

Noise assessment

To assist the City in a reconsideration of his proposed development, Mr Morgan commissioned Herring Storer Acoustics to undertake an acoustic assessment of the proposed use. In a letter to Mr Morgan dated 5 November 2007 and headed 'Motorbike Training Facility Acoustic Compliance Assessment' Herring Storer Acoustics said that:
… an acoustic assessment has been made ... of the Motorbike Training Facility operations with the respect (to) the following:
1)Noise emissions from the motorcycles.
2)Compliance at the nearest noise sensitive premises (proposed new site, Albany) in accordance with the Environmental Protection (Noise) Regulations 1997.
The letter said the assessment was made using the current models of motorcycles in use at Mr Morgan's Forrestdale location. Noise levels of the motorcycles in various operational modes were recorded 'with the "pass by" being used for the purposes of this assessment'. Measured levels were interpolated to the result of levels at the nearest noise sensitive premises.
Herring Storer Acoustics said that, as the proposed facility in Albany will have more than one track with the likelihood of multiple motorcycles being operated at the same time, for the purposes of the assessment the cumulative noise level for eight bikes was calculated. This assumes there would be all eight motorcycles at the closest location, operating at the same time, although it is likely the motorcycles would be spread around the tracks. The following table of results was produced. A 300cc motorbike also tested has not been included because that size bike is not to be used.

Equipment	Operating parameter	Noise level dB(a) at 1 metre	Noise level dB(a) at nearest noise sensitive premises
Suzuki 50cc ATV LT50 2stroke	Pass by	72	26
Honda 50cc twowheeled Z50 4stroke	Pass by	69	23
Honda 70cc twowheeled XR70 4stroke	Pass by	72	26
Yamaha 90cc twowheeled TTR90 4stroke	Pass by	74	28
Honda 100cc twowheeled XR100 4stroke	Pass by	75	29
Suzuki 80cc ATV LT80 2stroke	Pass by	72	26

The noise assessment states:
At the nearest noise sensitive premises, the calculated noise level of up to 37dB(A) will be applicable, hence compliance is achieved for day time operation. This is based on the eight motorbike scenario.
It is concluded that noise emissions from the proposed motorbike training facility (at operating parameters stated above) comply with the Environmental Protection (Noise) Regulations 1997.
The City commissioned Lloyd George Acoustics to undertake a peer review of the Herring Storer Acoustics assessment. Mr Daniel Lloyd of Lloyd George Acoustics, a chartered professional engineer and a member of the Australian Acoustical Society, produced a review titled 'Private Recreation (Junior Motorcycle Rider Training) 290 Piggot Martin Road, Lowlands, Albany - Review of Acoustical Report' and dated 18 December 2007.
Mr Lloyd said he considered the methodology that should have been followed was that of Australian Design Rule ADR39/00 External Noise of Motorcycles. Mr Lloyd could not, however, see any reason to doubt the measured levels at 1 metre made by Herring Storer Acoustics and commented that the maximum permissible levels of motorcycles under ADR39/00 at a distance of 7.5 metres are significantly higher:
•Engine capacity up to 80ccs equals 70dB(A); and
•Engine capacity from 80 to 175cc equals 80dB(A).
Mr Lloyd said that the methodology employed by Herring Storer Acoustics to calculate noise levels at the nearest noise sensitive premises was not clear. In particular, not indicated was the methodology used in determining the attenuation from the source to the receiver or the environmental conditions that have been assumed in the calculations. Mr Lloyd went on to state:
The reduction from the source to the receiver stated in the [Herring Storer Acoustics] report is 47 dB. This suggests that, assuming a distance is 250 metres, the attenuation is based on distance only. This calculation is very conservative, as it does not appear to take into consideration ground conditions. For a rural setting such as this, it would be realistic to assume that the ground between the source and the receiver is 90% soft (grass or trees). This will have a significant affect on the propagation. Our calculations using the CONCAWE sound propagation algorithms is that the noise level 250 metres from the source, assuming a 4m/s positive wind, would attenuate by 54 dB. The resultant noise level at the nearest resident would therefore be L_A10 30 dB as opposed to the predicted noise level of 37 dB(A) in the [Herring Storer Acoustics] report. However, using aerial photographs, the nearest premises appear to be 380 metres away. Assuming this, our predicted noise level is L_A10 27 dB.
The report states that the assessment noise level is 45 dB(A) as stipulated in the Environmental Protection (Noise) Regulations 1997. This is the appropriate L_A10 level but only 0700 to 1900 hours Monday to Saturday. As it is proposed to use this facility at weekends and school holidays, the controlling criteria would be for Sundays or public holidays (0900 to 1900 hours), which is L_A10 40dB.
It was Mr Lloyd's opinion that the tonal noise characteristics of the motorcycle use would result in a penalty of plus 5 dB. He concluded:
Although we do not agree with the methodology used in the [Herring Storer Acoustics] report to predict the noise levels to the nearest noise sensitive receiver, our calculations show that assuming the measured noise levels in the [Herring Storer Acoustics] report, even with a penalty of 5dB for tonal noise characteristics, the proposed facility would comply with the Environmental Protection (Noise) Regulations 1997, during the day time Monday to Saturday and on Sundays and public holidays.
On the suitability of the proposed use in a rural setting, Mr Lloyd said:
It has been shown that the proposed facility is likely to comply with the Environmental Protection (Noise) Regulations 1997 during the proposed operating hours. However, rural settings generally have lower background noise levels under calm conditions, and although the noise from the proposed facility is predicted to be low, it is likely that it would be audible at the nearest residence during favourable wind conditions. In addition, this sound is likely to have annoying characteristics, in particular, tonality.
Whether or not the noise would be intrusive is very subjective, particularly as the predicted levels are low. The facility could, however, be managed with certain restrictions.
Mr Lloyd was called as a witness at the hearing. Under examination, he said when asked about the blue gums at the western end of the site that if the receiver was downhill the trees might make a difference but because they could come down they were not considered too carefully in the analysis. When questioned by Mr Morgan, Mr Lloyd confirmed that if the eight motorbikes were spread over 50 to 60 metres, then the noise level of 27dB might drop by 1 or 2 decibels at the nearest noisesensitive residence 380 metres away. At 25dB to 27dB, if audible, there would be a low level of noise at the nearest house. In his opinion, it could be described as quiet. A listener would have to strain to hear the motorbikes if there were sounds around of the same frequency as the motorbikes or there was wind in the trees. The direction and strength of the wind were, however, significant.
On the claims by the neighbours that they could hear the ocean 5 kilometres away, Mr Lloyd said that if the wind was in the correct direction or if there was a temperature inversion such as early in the morning and late in the evening, then the motorbikes might be heard at least a kilometre away. During a hot summer day there would be a slight decrease in noise. Predictions are based on standard weather conditions and so if the weather conditions varied the noise might be heard.
The proposal would comply with the Environmental Protection (Noise) Regulations 1997 (noise regulations). Mr Lloyd agreed, however, that these provide guidance. In his experience, if a person is not in favour of a proposal then that person would tune in and be annoyed when they hear any noise. Even though this is not a noisefree locality, people can be selective about the noises that annoy them, especially in a locality where they have particular expectations of what noise would be heard. He suggested restriction on the size of bikes and hours of operation, and programming training days to have certain time periods and duration as a means of managing the use to address potential concerns.
The respondent called as witnesses two residents from the locality, Mr Guy Holmberg and Mrs Claudia Form. Mr Holmberg and his family are the closest residents, living at 411 Piggott Martin Road, 380 metres to the west of the proposed training area. Their house is separated from the training area by Piggott Martin Road and the blue gums at the western end of the site. The house is about 50 metres from the road. Mr Holmberg, who is also a pilot, runs cattle on his land and has lived there since 2005.
Mr Holmberg said that among the reasons he moved to the locality were the site was proximate to bush and ocean and had a peaceful rural outlook. He said that at his house he could hear stock in paddocks, birds calling overhead, rustling of trees in the wind, and under certain conditions, surf from the coast about 5 kilometres away and certain types of vehicles on Lower Denmark Road about 3 kilometres away. On occasions when in paddocks about 500 metres distant he heard jocularity of family members on the outdoor deck of his house.
Mr Holmberg acknowledged that from his house he could hear gravel trucks on Thompson Road and machinery used in the movement of stock, farm maintenance and property improvements on neighbouring properties. He did not consider those noises offensive as they were usually of short duration and formed part of the rural character of the area. Any extended period of noise was usually associated with seasonal activity such as hay production. He believed that the noise from the repetitive riding of motorcycles nearby would be an unwanted intrusion that would affect his lifestyle and the enjoyment of his property. This would be particularly noticeable over holidays and weekends and the noise would drive them inside.
Mrs Form and her family reside at 233 Piggott Martin Road. The house is about 350 metres south of Piggott Martin Road towards the top of the ridge. Near to the house, the construction of the second of two chalets approved for shortterm accommodation has nearly been completed. It is about a kilometre from the house to the training area. It is not possible to see the training area from Mrs Form's house because of intervening vegetation.
Mrs Form said that she had selected her site because it had attributes which included peace and tranquillity, panoramic views and proximity to natural bush. She could hear vehicles using Piggott Martin Road and when the wind was in the right direction she could hear cars on the Lower Denmark Road about 3 kilometres away. Mrs Form said she could also hear neighbours using farm bikes and ATVs but this was expected and was usually over within a short period. Any longer noise was usually associated with seasonal activity.
Mrs Form believed that the noise from the repetitive riding of motorcycles nearby would affect her lifestyle and the rural experience of her guests. This would be particularly noticeable over the peak period of Christmas holidays and weekends.
It was the submission of Mr Fenn that it was unclear what level of noise would be experienced at the nearest noisesensitive premises. This was because of the comments made by Mr Lloyd on the different methodologies used to measure the noise generated by the motorcycles, the inherent presumptions in models used to predict noise, lack of knowledge of the site by the consultants, assumptions about the size and number of motorcycles and potential variations in onsite temperature and wind direction. Mr Fenn highlighted the comment made by Mr Lloyd that managing noise nuisance is not an exact science and the noise regulations set a maximum noise level.
Mr Fenn referred to Mr Lloyd's comment that whether a noise was 'annoying' was a subjective issue and that if a neighbour could hear the noise, no matter how quiet it was, it would be annoying to that neighbour. He cited comments of the Tribunal that when coupled with varying tolerances from different people, compliance with noise regulations doesn't necessarily negate amenity concerns and nuisance: Stein & Anor and Shire of Chapman Valley [2006] WASAT 105 and Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100. Mr Fenn said that given the residents in the locality can hear the noise from activities several kilometres away, it was not unreasonable to expect that they will hear the activities on the training area.
A further case cited by Mr Fenn was Townsend & Anor and Shire of Donnybrook/Balingup [2005] WASAT 276 in which the Tribunal noted that:
… For noise to be offensive it must be unreasonable or unwanted; it is not sufficient that it merely be audible. The offensiveness of the noise should be gauged by reference to the particular context and area in which it is audible. One element to be considered is the zoning of the land, although this factor is not conclusive.
Mr Fenn also cited from Townsend that 'offensive noise is not capable of quantification and will depend upon the facts of each case'. Further, the Tribunal noted:
One cannot reasonably expect to reside in such a zone (rural) and necessarily expect a quiet and serene rural environment. However, counsel quite rightly said that the circumstances of the zone should be taken into account when considering the amenity that might be reasonably expected.
In Mr Fenn's submission, the clear expectations of amenity Mr Holmberg and Mrs Form had when they purchased their land did not appear onerous or unrealistic.
Mr Fenn said that the neighbours continue to enjoy a high level of amenity because all lots in the locality have developed in accordance with TPS 3 and policy provisions. In support of the submission, Mr Fenn cited Wright and Shire of Chittering [2003] WATPAT 14; (2003) 33 SR (WA) 182 and Shepherd and Anor v Shire of Murray [2004] WATPAT 71 in which the Tribunal determined that rural landowners are entitled to generally expect, like any other resident, to be exposed to no more than the 'usual', but largely transient and intermittent, noise that one might experience with rural living.
Mr Morgan emphasised that Mr Lloyd predicted that noise levels from the activity would be 25 decibels at Mr Holmberg's residence. The noise would be very quiet, 'possibly only just audible under certain conditions' and that a person 'would have to strain to hear' noise at 25 decibel level. The predicted noise level would be 3 decibels lower than the ambient noise level set for the locality. In his submission, the application should not be refused because of noise emissions.
In Tempora Pty Ltd v Shire of Kalamunda [1993] WATPAT 17; (1994) 10 SR (WA) 296 at 304, the Tribunal stated that:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
The Tribunal has recognised that in undertaking an objective inquiry as to the character of the area that represents a state of amenity, it would be assisted not only by the opinions of expert town planners but also by the views of residents who are often well placed to identify the particular qualities and characteristics which contributed to their amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [21].
In this matter the two residents, who presented as creditable witnesses, have identified particular characteristics that they consider establish the amenity of the area, including productive rural activities and the noise generated when conducting those activities, low level of traffic, a general absence of external traffic and an absence of noise not associated with normal rural activities. These two witnesses also offered comment on what they believed the impact of the proposed use would be on that amenity.
The Tribunal accepts that the concerns of the two neighbours about the possible future impact of the proposed use are sincerely held. It is necessary, however, to consider the objective evidence of what impact the proposed use might have on the local amenity and whether that impact would warrant the proposed use being refused. The best evidence the Tribunal received was from the two acoustic experts. The experts apparently used different methods of determining noise levels at the source, but both concluded that at the nearest noisesensitive premises the L(A10) noise level would be below the maximum noise level allowed to comply with the noise regulations.
The Tribunal findings cited by Mr Fenn identified that compliance with the noise regulations did not necessarily mean there would not be any impact from noise or that noise could still be a nuisance to nearby residents depending upon the context. The context in this instance is the rural locality with the characteristics identified by the two neighbours. The Tribunal notes that for weekends and public holidays the noise regulations require noise not to exceed 40dB at the nearest noisesensitive premises. The experts predicted that the noise at the nearest sensitive premises would be less than this. Mr Lloyd, who was subject to crossexamination, estimated that the noise level, when reduced for soft surfaces and increased by a tonal penalty, would be 30dB at 380 metres. There might be occasions when atmospheric conditions and wind direction and velocity combine to make the sound of the motorbikes more audible.
The Tribunal has noted that the estimated noise level is not one that might tip over the threshold of exceeding the noise regulations if varied by one or two decibels in certain atmospheric conditions. Residents in a rural area cannot, and in this instance do not, expect a noisefree environment. The noise generated by the proposed use, however, was described by Mr Lloyd as being barely audible and that it might be masked by other noises of similar frequency at the noisesensitive premises. The Tribunal has concluded that any increase in noise as a result of the proposed use would not be heard in the normal course of events at neighbouring properties at a level that would warrant the proposed use being refused because of noise.

Traffic

Mrs Form believed that the proposed use would unreasonably increase traffic volumes on Piggott Martin Road and this would intrude on the tranquil atmosphere enjoyed by the locality and particularly herself and the occupants of the chalets on her land. She is able to hear traffic on Piggott Martin Road from outside her house. She acknowledged that customers of her chalets would add to vehicles on the road but considered that the few movements of people to the chalets would not be comparable to the disturbance from customers arriving at and departing from the site every 2 hours.
Mr Holmberg said he had chosen a property away from sealed roads so traffic was mostly local. He was prepared to accept that rural traffic on the roads could be seen from his house but believed that the traffic attracted by the proposed use would be over and above what would normally be expected in the area and therefore would have a detrimental impact, including from noise and dust. He acknowledged that many of the customers of the proposed use would take the shortest route from the site to Lower Denmark Road and so would not pass his property but there would still be an increase in traffic from those that chose to exit south from the site and travel to Thomas Road then to the district road system beyond.
Mr Morgan produced figures from the City that indicated that 40 vehicles per day used Piggott Martin Road. If all five sessions attracted eight riders there might be up to 80 traffic movements in a day. Mr Morgan said that he would expect, however, only about 10 to 15 cars per day, except on the relatively few busy days, and considered it doubtful whether traffic from his customers would be noticeable within that traffic flow. The days of heavier traffic from the proposed activity are likely to only be during the summer school holidays and perhaps at Easter and it should be recognised that there is increased traffic in the locality at these times anyway. He was also of the opinion that customers would choose the shortest route back to Lower Denmark Road and therefore very few, if any, would pass Mr Holmberg's house.
Piggott Martin Road is a gravel public road and appeared at the viewing of the site to be well constructed and maintained. There are no restrictions on what vehicles can use the road and when. The actual capacity of the road is not known, but there were no submissions that the road could not accommodate even the maximum possible traffic generated by the proposed use. Vehicles in addition to the 40 using the road might be noticed, especially if up to eight arrive and eight leave at the changeover of each session, but it might often be less than this. Some vehicles will travel south, others north from the site. No additional vehicles would be ideal. There might also be a particular number of additional vehicles that would have such an adverse impact that a change in use should not be entertained. The Tribunal is not convinced that the additional vehicles generated by the use on this public road would have an impact on local amenity sufficient to warrant the proposed use being refused.

Dust

Mr Fenn was concerned that the pasture cover from the circuits in the training area would be removed by Mr Morgan, as illustrated in photographs of circuits he has previously operated, or would be removed by the action of the motorbikes and the dirt beneath could give rise to a dust problem. Mr Holmberg was concerned that the additional traffic past his house would create additional dust that he would not otherwise have.

Mr Morgan said the slow speeds and tyre profiles of the ATVs and the motorbikes would be unlikely to cause damage to the deep rooted kikuyu pasture. He would also accept that he was not to create dirt tracks for the training circuits. On the dust from customers' cars, he restated that the nearest house was close to a gravel road and he did not consider the additional vehicles going past the house would make any noticeable contribution.
The Tribunal considers that dust from vehicles on gravel roads must be expected. Again, the Tribunal accepts that there would be a point where the number and frequency of vehicles generated by a use would have an impact sufficient to question allowing the use, but the Tribunal is not persuaded that the vehicles generated by the proposed use would cause that threshold to be reached. In respect of the impact of the motorcycle use on the pasture in the training area, if the use were allowed a condition could be imposed requiring tracks to be moved from time to time in the training area to prevent this.

Whether the proposed use is compatible with TPS 3, policies and land use in the locality

The objectives for the Rural zone in TPS 3 include ensuring that high quality agricultural land is retained for primary production, the regulation of uses which might conflict with farming interests and the fostering of uses which are complementary to such interests. Mr Meggitt, a planning consultant called as a witness by the respondent, interpreted this as promoting activities related to or ancillary to agriculture and uses that had no adverse impact on rural activities. Mr Holmberg and Mrs Form both said that when choosing their respective properties a consideration was that it was a locality of compatible rural activities, some lifestyle lots and areas of vegetation and they expected future development of lots to continue these uses.
Under the rural strategy policy GP28, non-agricultural land use proposals are to be assessed in terms of their potential impact on or conflict with existing agricultural uses and the likely development of adjoining land with 'P' uses. Policy GP29 provides that where the nonagricultural use would cause unacceptable conflicts on or with agricultural land uses the proposal will not be supported. Where the nonagricultural use would not cause unacceptable conflicts, it may be supported subject to conditions that minimise the potential for conflict such as setbacks and limiting the scale.
Mr Meggitt said that the site, with grazing, a small patch of blue gums and remnant and regrowth vegetation, was typical of the rural properties in the locality. In his opinion, the proposed use was a standalone business that was not ancillary to the rural use of the site and did not relate well to the use made of adjoining properties. The training area would occupy pasture currently used for grazing. He said that, as the two activities could not be undertaken at the same time within the same area, pasture would be lost and this would be detrimental to continued rural use of the site. He was also of the opinion that, in conflict with the intent of TPS 3, existing and possible future uses located in close proximity to the proposed use could be adversely affected by noise, particularly the tonal aspects of the noise, and dust from the motorcycle riding activities of the use. He considered it would not be appropriate to approve the use with conditions to control its operation because of uncertainty about the operation of the business and the difficulty of policing any conditions.
Mr Meggitt acknowledged that under the Council's policy, tourism was encouraged in a rural zone and over time there might be a range of tourist uses in some rural areas. Mr Meggitt did not believe that this locality, being some 35 kilometres from Albany, would become a tourist node. He accepted that the area might change in character with time but that each proposal needed to be considered on its merits and he considered that there was still an expectation under the planning scheme that the area would retain a rural character. He noted that there were chalets on some lots but these were anticipated in TPS 3 as a use that might be allowed. The chalets did not in his view create any externalities which would have an adverse impact on grazing. Of concern to Mr Meggitt was the intensity of the proposed use which was not an expected activity in a rural area and which was not directly linked to the rural activity carried out on the site or any other farming interests in the locality. He considered that in planning terms the use did not need to be in this locality and was perhaps more suited to being convenient to urban centres near zones where noise was not the same factor, such as industrial areas.
Mr Fenn submitted that the proposed use will act to the detriment of owners who have bought into the area with the expectation that the area will develop according to the provisions of the scheme and the Council's policies: Shepherd and Anor v Shire of Murray [2004] WATPAT 71.
Mr Morgan submitted that the respondent was attempting to ensure that every type of development in the area have a rural connection. He referred to TPS 3 which provides for a non-agricultural development and the policies that encourage tourism and touristorientated developments in the area. He considered there was no requirement in TPS 3 for an agricultural nexus in every development. He made the comment that the site will continue to be used for grazing and tree farming. The proposed use will cause no disruption as cattle could be moved into the blue gums and sheep to nearer the house. Stock currently grazing on the property belong to a neighbour and are there by arrangement. He hopes to continue that arrangement.
The Tribunal considers this to be standalone nonrural use, not ancillary to productive rural activity either on the site or on neighbouring properties. The Tribunal was not, however, presented with argument that the proposed use would conflict significantly with neighbouring rural activity, rather it was the potential impact on the residents and the chalet tenants that was raised as a concern. The Tribunal has considered the effect of the proposed use, as set out above, and found that the impact on the neighbours would not be such to warrant refusal for that reason. The rural strategy at GP28 also requires the assessment of the impact of the proposed use on likely development of 'P' uses. Under TPS 3, uses permitted in the rural zone include horticulture, livestock grazing, public worship, public recreation, extractive arable farming, silviculture, single house, stables, stock holding pens, sports ground and viticulture. The Tribunal is of the view that, having regard to uses already operating in the locality, if the proposed use is operated in the training area there is unlikely to be future unacceptable conflict other than perhaps with public worship and a single house if these were developed quite close.
There was also no argument that the site was high quality agricultural land. The Tribunal accepts that if the proposed use were a success, then some difficulties might arise in the management of the grazing stock on the site, particularly in the holiday periods.
As Mr Fenn submitted, some owners might have a particular interpretation of TPS 3 and so expect that in the area there will only be development of what they consider to be traditional rural uses. However, TPS 3 at cl 3.1.13 and the rural strategy at GP29 both provide that if a proposed nonagricultural land use does not create an unacceptable adverse impact within an agricultural area, it might be considered subject to conditions that would minimise any potential conflict. The Tribunal has formed the view that the proposed use need not have an unacceptable impact and therefore is a use that might be supported if appropriate conditions are in place.

Whether the proposed use might be regulated to control it rather than be refused

Mr Morgan emphasised from TPS 3 and the rural strategy the objective '… to regulate uses that might conflict with farming interests'. He insisted the proposed use did not conflict with farming interests, but if it did, the objective was to regulate the use, not refuse it.
Mr Fenn referred to the reluctance previously expressed by the Tribunal to impose conditions that struck at the heart of a use and the conditions that would be difficult to police: Land Alliance Pty Ltd and City of Belmont. He said this should be followed in this instance because the imprecision of the application would require conditions which would likely have this effect and which in turn would be difficult to police.
As ordered by the Tribunal, the respondent provided a schedule of conditions, without prejudice to its position, that it would want imposed were the Tribunal minded to allow the application. The Tribunal has formed the view that the conditions identify the use, not strike at the heart of the proposal, and would be capable of being policed.
The suggested conditions restrict the use to the riding of the motorcycles and ATVs as proposed at the hearing in the training area shown on the plan identified at page 79 of Exhibit 6.
Suggested condition 5 would require that the approved use be carried out between 8 am and 5 pm and for a maximum period of two hours on any day, broken into noncontinuous one hour sessions. The applicant objects to these requirements. He explained that sessions would be about one and a half hours with up to one hour of motorbike riding and, especially in summer with daylight saving, there may be up to five sessions a day. He would also want time at the end of each day to interact with customers and their parents and to put the machines away for the night. The Tribunal is of the view that the use cease at 7 pm, this being the time associated with the change in consideration of sound levels in the noise regulations. This is considered relevant even though the noise would be below the limits set by the noise regulations. How Mr Morgan then organises his sessions during that time would depend on demand from his customers. The Tribunal considers an appropriate condition would be:
The approved use shall be carried out between the hours of 8 am and 7 pm with a maximum of five sessions per day. The use is to cease and all customers and their vehicles must depart the site no later than 7 pm.
Suggested condition 6 reads:
The use of motor vehicles, motorcycles and allterrain vehicles for other purposes on the property should not occur whilst the approved development is being undertaken, except for those vehicle movements associated with gaining access to and from the residence via Martin Road, along the existing driveway, and for urgent animal husbandry purposes.
Mr Morgan said this condition should be deleted. He considered it unlikely that there would be other motor vehicles, motorcycles or ATVs on the property for other purposes but he would not like to see their use prohibited. He interpreted the condition as restricting the use of machines by the owner of the cattle on the property and for work associated with the tree plantation. He says it would prevent friends and family using such vehicles. The Tribunal considers there should be a condition of this type imposed. It does not prevent legitimate farm activity from being conducted but would restrict the casual riding of motor cycles outside of the training area by people who have brought children for lessons. This is considered important in ensuring the site is used only for the purpose now applied for. An appropriate condition would be as follows:
The use of motor vehicles, motorcycles and allterrain vehicles for other purposes on the property shall not occur whilst the approved use is being undertaken, except by those peoples associated with gaining access to and from the residence via Martin Road along the existing driveway and for activities directly associated with the farming of the site.
Suggested condition 8 requires that visitors' cars shall remain parked adjacent to the residence and not proceed to the training area except where riders with disabilities are involved. Mr Morgan wanted flexibility in locating parking areas. He did not object to there being no visitor parking in the training area and suggested that the condition provide for visitors' cars to remain in parking areas he selects and not to proceed to the training area except where riders with disabilities are involved. The Tribunal considers that the suggested alternative condition is too vague. If the site is to continue to be used in part for rural purposes, it is important that visitor parking be in an identified area. The plan identifies parking adjacent to the house and sheds on the site and Mr Fenn identified that adjacent would generally be within in the vicinity, about 100 metres of the house and sheds in the vicinity. The Tribunal considers that condition 8 could be worded to read:
All visitor cars to the site shall remain parked in the vicinity of the residence on the site and not proceed to the training area except where riders with disabilities are involved.
The respondent suggested an additional condition to read:
The approval is issued to the applicant for the express use of the land for the purposes as stated and the approval does not remain with the land or be transferred to a third party.
Mr Fenn said that the proposed use was dependent upon Mr Morgan's skills as a motorcycle trainer and he has indicated that he is offering a service that no other person in Western Australia provides. The respondent therefore considers that any approval issued for the land should remain with Mr Morgan and should not be transferred upon a future transfer of the land. The respondent considers that the management expertise and experience of Mr Morgan is significant in reducing any adverse impacts of the proposed use and therefore the use should cease if he ceases to operate the activity.
Mr Morgan said that, consistent with normal planning approvals, the planning approval should run with the property. He considered it would be a financial penalty if the use had to cease if the property was sold. He considered this unfair. He also made the comment that should he die his sons and wife should be allowed to operate the business if they so wish. Operating restrictions would apply to any new owner and so the impact would be the same.
The Tribunal is inclined to the view that this use is not so special that it must be tied specifically to Mr Morgan. It is considered that there are potentially other people with similar skills to conduct this use, including potentially other members of his family. However, the Tribunal does consider that this is a use that should in the first instance have a time limit imposed.
The Tribunal has formed the view that an approval for five years would be appropriate in the circumstances of this case. If, at the end of that five year period, there remains no difficulty with the use, then a fresh approval could be granted. This would enable the use to become established and patronised. It would enable assessment to be made in the light of how the use has been conducted and changes that might have occurred, such as the harvesting of blue gums or development of neighbouring 'P' uses. The Tribunal accepts the submissions of Mr Lloyd that any change in the makes of motorbikes or manner in which they are used would be able to be assessed. The Tribunal considers that a condition should be imposed which reads:
This approval authorises the use of the site as proposed for private recreation (motorcycle and allterrain vehicle training) to be carried on for a period of five years from the date of this order only. A fresh application for a planning approval must then be lodged with the City of Albany and any approval issued for the continuation of the use may be for a further fixed period or for an unlimited time beyond the five years herein approved.
Mr Morgan suggested three additional conditions which would enable an extension of the training area, an increase in the size of the engine capacity up to 500cc and an increase in the number of motorcycles if a noise assessment demonstrated that for each of these the noise regulations would not be exceeded. The Tribunal considers that any of these three changes would in fact constitute a different use and would be subject to the normal application, advertising and assessment process.
One further condition that the Tribunal considers should be imposed is to more clearly identify the use approved. This is that the riding of the motorcycles and all terrain vehicles is limited to customers up to the age of 14 years. This age limit is directly linked to the age of those receiving instruction, the capacity of the motorcycles and the extent of the training area. It is therefore proposed that there is to be an additional condition to read:
The riding of the motorcycles and allterrain vehicles referred to in condition 4 shall be restricted to persons of 14 years of age or younger.

Conclusion

Mr Morgan is seeking approval for the proposed use at the site of offering lessons to teach children up to 14 years of age how to safely ride a motorbike or an ATV. He has no formal qualifications as a teacher. He will be relying on his own expertise and there was evidence that he had previously conducted similar lessons at Forrestdale. The lessons would not be directed to children achieving some form of recognised qualification or certification. The Tribunal considers this is a specific commercial venture to attract the children of the district and of tourists. The Tribunal does not consider that it is a rural activity or an activity ancillary to rural activity.
The first issue considered was whether the proposed use would impact on the amenity of the area. Two neighbours assisted the Tribunal in establishing the characteristics of the locality. The main concerns raised were related to the potential impact on the local amenity from noise, traffic and dust. Acoustics engineers provided expert evidence on the predicted noise impact of the proposed use. The Tribunal found that the potential impact of the proposed use on the amenity of the locality would not be such as to warrant a refusal of the proposed development. Noise, if heard at nearby residences, would normally be barely audible. In respect of traffic and dust from the road, the Tribunal formed the view that any impact would be at an acceptable level. Dust from the use eroding the site could be avoided by conditions of approval.
The second issue addressed was whether the proposed use was compatible with TPS 3, policies and land use in the locality. TPS 3 and the related rural strategy are directed to non-agricultural uses not having an unacceptable impact on agricultural uses and the possible future development of adjoining land by 'P' uses. The Tribunal formed the view that proposed use need not have an unacceptable impact on neighbouring land uses or on future adjoining land uses. TPS 3 and the policy provide that such uses can be considered subject to conditions that would minimise any potential for any future land use conflicts.
The Tribunal then considered whether the proposed use might be regulated to control it rather than be refused. The Tribunal considered conditions that might be imposed would not strike at the heart of the proposed use, as argued by the respondent, but would identify what was allowed consistent with the particular use the applicant is seeking to operate and would enable the use to be reasonably policed. One requirement that the Tribunal considered appropriate was that an approval be for five years in the first instance. This would enable the use to proceed but be monitored consistent with the policy requirement that potential future conflicts be minimised. At the end of that period a fresh application can be considered, and if there were then no concerns about how the use was conducted and no conflicts with rural use then in the locality an approval could be considered for a fixed period or an unlimited time beyond the five years.

The Tribunal has concluded that the proposed use of private recreation (junior motorcycle and allterrain vehicle training) is to be allowed subject to appropriate conditions.

Determination

The Tribunal has determined that:
1.The application for review is allowed.
2.The refusal of the City of Albany dated 18 October 2007 is set aside and approval is granted for the proposed development of the use private recreation (junior motorcycle and allterrain vehicle training) at 290 Piggott Martin Road, Lowlands, subject to compliance with the following conditions:
i)The riding of motorcycles associated with the approved use shall be restricted to that area of open pasture identified as 'training area' on the attached plan with the number 079 and date stamped 8 September 2008 by the Tribunal.
ii)The motorcycles and allterrain vehicles used in the approved use shall be restricted to a maximum engine capacity of 100cc and the exhaust systems maintained at all times so that the emissions comply with the manufacturer's specifications.
iii)Only those motorcycles and allterrain vehicles owned by the proponent shall be used on the property as part of the approved use.
iv)No more than eight (8) motorcycles or all terrain vehicles (or a combination of motorcycles and allterrain vehicles not exceeding eight in total) shall be used for the approved use at any time.
v)The approved use shall be carried out between the hours of 8 am and 7 pm with a maximum of five sessions per day. The use is to cease and all customers and their vehicles must depart from the site no later than 7 pm.
vi)The use of motor vehicles, motorcycles and allterrain vehicles for other purposes on the property shall not occur whilst the approved use is being undertaken, except by those people associated with gaining access to and from the residence via Martin Road along the existing driveway and for activities directly associated with the farming of the site.
vii)The location of the riding surface within the training area identified in condition 1 shall be repositioned from time to time to prevent damage to the grassed surface and erosion and no mounds shall be constructed.
viii)All visitors' cars to the site shall remain parked in the vicinity of the residence on the site and not proceed to the riding area except where riders with disabilities are involved.
ix)No signage shall be erected on the site, within local road reserves or on third party properties directing patrons to the approved land use unless a separation application has been submitted to the City of Albany and that application has been approved.
x)This approval authorises the use of the site as proposed for private recreation (motorcycle and allterrain vehicle training) to be carried on for a period of five years from the date of this order only. A fresh application for a planning approval must then be lodged with the City of Albany and any approval issued for the continuation of the use may be either for a further fixed period or for an unlimited time beyond the five years herein approved.
xi)The riding of the motorcycles and allterrain vehicles referred to in conditions (ii), (iii) and (iv) shall be restricted to persons of 14 years of age or younger.
xii)The approved use shall only operate on weekends, public holidays and during published school holiday periods.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER