Nessdee Pty Limited v Orange City Council - [2017] NSWLEC 158

Land and Environment Court

New South Wales

Medium Neutral Citation: Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158
Hearing dates: 15–18 August, 3 and 6–7 November 2017
Date of orders: 28 November 2017
Decision date: 28 November 2017
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The Court orders:
(1) The applicant is to prepare, file and serve a Plan of Management for Orange East Airport, a Stormwater Management Report for the Proposed Heliport and any further plans by 8 December 2017.
(2) The parties are to confer and agree on the conditions of consent (revised in accordance with the Court’s rulings) by 13 December 2017 and file the revised conditions by 14 December 2017.
(3) The proceedings are listed on 19 December 2017 at 9:30am for further hearing and disposal of the proceedings.

Catchwords: APPEAL – heliport – acoustic impacts of helicopter operations – proposal amended to confine helicopter operations and reduce acoustic impacts – amended proposal will comply with accepted numeric noise criteria – whether still unacceptable acoustic impacts on residential amenity and aesthetic values of locality – whether acoustic impacts unacceptable because of availability of alternative site at nearby airport – visual impacts of helicopter operations – whether unacceptable visual impact on aesthetic values of locality – environmental impact statement for designated development of heliport – adequacy of EIS consideration of need and justification for heliport and alternative sites – public interest – whether public interest favours refusal – development consent should be granted on conditions – conditions to be settled
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 77A(1), 78A(8)(a), 97, 97A
Environmental Planning and Assessment Regulation 2000 Sch 2 cl 3(8), 7, Sch 3 cl 2(b)
Orange Local Environmental Plan 2011 cll 2.3(2)
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Helman v Byron Shire Council (1995) 87 LGERA 349
Lilley v Lithgow City Council [2007] NSWLEC 608
Category: Principal judgment
Parties: Nessdee Pty Limited (Applicant)
Orange City Council (First Respondent)
Mr Gavin Alston (Second Respondent)
Ms Esme Alston (Third Respondent)
Representation:
Counsel:
Mr C McEwen SC and Mr M Staunton (Applicant)
Mr P Clay SC and Ms J Reid (First Respondent)

Ms B Scott as Agent for the Second and Third Respondents
Solicitors:
Cheney Suthers Lawyers (Applicant)
Crennan Legal Pty Ltd (First Respondent)

File Number(s): 2017/70619
Publication restriction: Nil

Judgment

A new heliport is proposed

Fredericks Valley is south of the City of Orange and runs alongside the Mitchell Highway. At Highland Heritage Estate, one of the properties adjacent to the highway and backing onto Summer Hill Creek, Nessdee Pty Ltd (“Nessdee”) operates a helicopter landing site following the grant of development consent for seven flight movements a week. Nessdee now seeks development consent for the operation of a heliport with up to 90 flight movements each week. Orange City Council (“the Council”) refused consent. Pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”), Nessdee appeals against the Council’s decision.
In addition to helicopter flights, the proposed development includes classroom based pilot training and pilot accommodation. It seeks to utilise infrastructure that has been constructed as part of the existing helicopter landing site, including the hanger, the awning and apron, some of which includes works undertaken without development consent. The development, if approved, would consent to the future use of these unlawfully constructed structures.
The proposed development is designated development under s 77A(1) of the EPA Act and cl 2(b) of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (“the EPA Regulation”).
The Council opposed the grant of development consent on the basis that the heliport will have an unacceptable impact on the locality by reason of the acoustic and visual impacts that cannot be suitably ameliorated by conditions of consent. Further, the Council contended that the proposed heliport, being designated development, is not justified having regard to the impacts on the locality and the availability of similar services at Orange Airport, about 7 kilometres from the subject site.
Because the proposed heliport is designated development, s 97A of the EPA Act allows any objector to be heard at the hearing of the appeal as if the person or body was a party to the appeal, as long as the objector applies to be heard within the requisite time. Two objectors, Mr and Mrs Alston, applied to and were joined as the second and third respondents to the appeal. The Court granted leave to Ms Scott, who is the daughter of Mr and Mrs Alston and an architect, to appear as their agent on the hearing of the appeal. Mr and Mrs Alston did not file a statement of facts and contentions but objected to the proposed heliport on the grounds of its acoustic and visual impacts in a locality valued for its serenity, the incompatibility of the heliport with the rural character of the area, concerns about the regulation of flights after take-off and enforcement of conditions of consent, concerns regarding the safety of the heliport operations, and the impact of the proposal on the heritage significance of the nearby heritage house known as “Wellwood”.

Outcome of the appeal

The proposal for the heliport was amended during the hearing, including specifying the flight paths and alternative landing sites to be used in different weather and wind conditions. There has also been extensive acoustic testing of helicopters using these amended flight paths and landing sites. Stringent measures have been proposed to mitigate the impacts of carrying out the amended proposal.
With these amendments to the proposal and mitigation measures, I find that the proposed heliport will not cause unacceptable impacts, including acoustic and visual impacts, on the locality. The acoustic impacts can be satisfactorily addressed by the imposition of appropriate conditions of consent and the further merit issues raised by the objectors have been satisfactorily addressed.
I have also determined that the Council’s contention that the proposed heliport warrants refusal because its impacts could be avoided due to the availability of Orange Airport should be rejected. The proposed heliport is permissible with consent in the relevant E3 Environmental Management Zone under Orange Local Environmental Plan 2011 (“Orange LEP”). The Council’s strategic planning does not require all air transport facilities, including heliports, to be located at Orange Airport, but rather permits such facilities to be carried out across a large part of the Local Government Area, provided they have acceptable impacts. I find this is the case with the proposed heliport.
I have determined, therefore, that Nessdee’s appeal should be upheld and that development consent for the proposed heliport should be granted on conditions. Certain documentation (including management plans) and the conditions of consent will need to be revised. I will direct this to be done and a further hearing fixed to make the orders granting consent.
I gratefully acknowledge the assistance of Commissioner Gray in the hearing of the proceedings, under s 37(1) of the Land and Environment Court Act 1979.

The planning framework

The land on which the heliport is proposed is within the E3 Environmental Management Zone under Orange LEP. The E3 zone extends over a large area of Orange City, including all of the land to the south of Orange along the Mitchell Highway and the land surrounding Orange Airport. The objectives of the E3 zone are:

“• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To manage development within water supply catchment lands to conserve and enhance the city and district’s water resources.
• To maintain the rural function and primary production values of the area.
• To ensure development along the Southern Link Road has alternative access.”

The Land Use Table for the E3 zone permits without consent three types of development, none of which are relevant. The types of development permitted with consent include air transport facilities and helipads. The types of development that are prohibited include industries (other than those industries specified as being permitted with consent) and any other development not specified as being permitted without consent or with consent.
The development of an “air transport facility” is defined in the Dictionary to Orange LEP to mean “an airport or a heliport that is not part of an airport, and includes associated communication and air traffic control facilities or structures.” An “airport” is defined to mean:

“a place that is used for the landing, taking off, parking, maintenance or repair of aeroplanes, and includes associated buildings, installations, facilities and movement areas and any heliport that is part of the airport.”

A “heliport” is defined to mean:

“a place open to the public that is used for the taking off and landing of helicopters, whether or not it includes:
(a) a terminal building, or
(b) facilities for the parking, storage or repair of helicopters.”

A “helipad” is a distinct development to a “heliport”. A “helipad” is defined to mean “a place not open to the public used for the taking off and landing of helicopters.”
The existing helicopter landing facility would be classified as a helipad under the current definition, as it is not open to the public. The proposed development is for a heliport, which will be open to the public.
Clause 2.3(2) of Orange LEP requires the consent authority to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.”
The Council, and Mr and Mrs Alston, relied particularly on the first and second objectives of the zone to contend that the proposed heliport will have an adverse effect on the aesthetic values of the area of Fredericks Valley. Nessdee disputed that the proposed heliport would have such an adverse effect. Nessdee also relied on the second objective as demonstrating the acceptability of the type of development of air transport facilities, including heliports, in the zone. The second objective is declaratory: the limited range of development that is permitted without or with consent in the Land Use Table is taken to be development that does not have an adverse effect on the values, including the aesthetic values, of the area. That is to say, the limited range of development specified is not inherently incompatible with the objectives of the zone.

The acceptability of the noise impacts

The Council and Mr and Mrs Alston contended that the operation of the proposed heliport would have adverse acoustic impacts on the aesthetic values of Fredericks Valley and the amenity of residents of the valley. The acoustic impacts of the proposed heliport have been extensively assessed. As a result of concerns raised by the Council as to the manner of operation of the proposed heliport, including the taking-off and landing of helicopters in different weather and wind conditions, Nessdee amended its proposal. Amongst other aspects of the development, the proposal now defines: the types of helicopters that can use the heliport; the number of helicopter movements (per day and per week); the hours of operation of the heliport, including limiting take-off and landing of helicopters in night time hours; the minimum distance that helicopters must keep clear of identified residences (both vertically and laterally); the flight paths that helicopters must fly in different weather and wind conditions; and the landing sites that must be used in different weather and wind conditions.
The parties’ aviation experts, Mr Green for Nessdee and Mr Allan for the Council, agreed on the feasibility and acceptability of the amended proposal. The parties’ acoustic experts, Mr Cooper for Nessdee and Mr Wasserman for the Council, undertook further acoustic testing of the amended proposal, including measuring the noise of helicopters flying the different flight paths, landing at the different landing sites and undertaking hover taxi manoeuvres. The noise measurements satisfied accepted numeric noise criteria, including the ANEF (Australian Noise Exposure Forecast) criteria for aircraft noise.
The parties’ acoustic experts accepted the applicability of the ANEF system for determining the acoustic acceptability of helicopter noise around the heliport. The criteria for aircraft noise are set out in Australian Standard AS 2021 Acoustics – Aircraft noise intrusion – Building siting and construction (AS 2021). Mr Cooper explained:

“AS 2021 utilises a noise exposure system calculated in Australian Noise Exposure Forecast (ANEF) units, that takes into account the following features of aircraft noise:
(a) The intensity, duration, tonal content and spectrum of audible frequencies of the noise of aircraft take offs, approaches to landing, and reverse thrust after landing (for practical reasons, noise generated on the aerodrome from aircraft taxiing and engine running during ground maintenance is not included).
(b) The forecast frequency of aircraft types and movements on the various flight paths, including flights paths used for circuit training.
(c) The average daily distribution of aircraft arrivals and departures in both daytime and night-time (daytime defined as 0700 hours to 1900 hours, and night-time defined as 1900 hours to 0700 hours).

The ANEF was developed in the early 1980’s following a major socio-acoustic investigation undertaken by the National Acoustics Laboratories (“NAL”) to assess the impact of aircraft noise on residential communities in Australia. The NAL study led to the development of a dose-response curve to identify the response of the community to the ANEF exposure level leading to an acceptable aircraft noise exposure defined in AS 2021 as being less than ANEF 20, and an unacceptable level of aircraft noise exposure above ANEF 25.
The ANEF system utilises the Effective Perceived Noise Level as the measurement parameter of an aircraft flyover. A general approximation between ANEF and dB(A) Leq is a difference of 35 dB.”

Notwithstanding that the acoustic experts assessed the noise exposure of residents around the heliport to be less than 20 ANEF (indeed it will be less than 13 ANEF), the Council and Mr and Mrs Alston still contended that the noise from the helicopters using the proposed heliport will still unreasonably impact on the amenity of residents in the surrounding area and the aesthetic values of the valley.
I do not agree with this contention. I find that the proposed heliport, as amended and with the mitigation measures that will be taken and required by conditions of consent, will not unreasonably impact on residential amenity or the aesthetic values of the locality. This is because the amendments to the proposal, particularly helicopter operations, and the mitigation measures proposed to be implemented, reduce the acoustic impacts. I find that the residual acoustic impacts will comply with accepted numeric noise criteria and will not have an unacceptable adverse effect on the amenity of residents and the aesthetic values of the locality.
I will start with the ways in which the acoustic impacts will be minimised under the amended proposal and the mitigation measures. The noise with which the residents are concerned is the noise from helicopters using the heliport, primarily flying over residences on route to and from the heliport and during take-off and landing.
The first way in which noise will be minimised is by specifying, as a condition of consent, the types of helicopters that can use the heliport. This control recognises that different types of helicopters produce different noise (simplistically, the larger and the heavier the helicopter and the larger the engine, the greater the noise). It also recognises that the acoustic assessments that have been undertaken measured the noise from particular types of helicopters. Specification of the types of helicopters ensures that the noise generated by helicopters using the heliport will accord with the acoustic assessments undertaken.
The parties agreed that a condition of consent should specify the types of helicopters that are able to use the heliport, but disagreed about the wording. The parties’ acoustic experts, Mr Cooper (called by Nessdee) and Mr Wasserman (called by the Council) agreed on a condition (condition 37) stating that:

“Approved aircraft – Use of the heliport during the daytime period (7am–10pm) shall be limited to single engine helicopters with a maximum take-off weight (MTOW) of 3000kg and having type certification complying with the noise limits under Chapter 11 of ICAO [International Civil Aviation Organisation] Annex 16 [–Environmental Protection] – Refer to condition 46 in relation to night time limits.”

The specification of helicopters being single engine helicopters, having a maximum take-off weight of 3,000 kilograms, and having type certification complying with the noise limits under Chapter 11 of ICAO Annex 16 – Environmental Protection limits the noise emissions from helicopters using the heliport.
Notwithstanding the agreement of the parties’ acoustic experts that this was an appropriate condition, the Council and Mr and Mrs Alston contended that instead the condition should specify the manufacturer and model of the helicopters able to use the heliport. The Council’s alternative wording was:

“Approved aircraft – use of the heliport during the daytime period (7am–10pm) shall be limited to the following types of aircraft – Refer to condition 46 in relation to night time limits
(a) Airbus AS350 (Squirrel 350);
(b) Robinson R66;
(c) Robinson R44 (Raven); and
(d) Robinson R22.”

I consider that the acoustic experts’ condition is preferable to the Council’s condition. Each of the types of helicopter specified in the Council’s condition would fall within the helicopter descriptions in the acoustic experts’ condition. The advantage of the acoustic experts’ condition is that it allows those particular helicopters to be replaced in the future by newer helicopters, of the same or different manufacturers and models, which meet or better the desired noise limits. Mr Cooper said in evidence at the hearing that newer helicopters are likely to be quieter than current ones. Replacement of the existing helicopters with newer, quieter helicopters is to be encouraged.
The second way in which noise will be minimised is by specifying the number of flights per day and per week. The existing facility, merely being a helipad for private use, is limited to only seven helicopter movements a week. This limit kept the existing development from being designated development (see cl 2(b) of Sch 3 of the EPA Regulation). The proposed development is, however, a heliport open to the public with more helicopter movements. Nessdee proposed setting a limit on helicopter movements of 20 on any day and 90 in any period of 7 days (counted from Sunday to Saturday). A helicopter movement is a take-off or a landing, so that there would be two helicopter movements for a return trip.
The acoustic experts assessed the noise from the heliport using these numbers of flights per day and per week. The acoustic experts agreed that all helicopter operations will satisfy both the 20 ANEF (or Leq 55 dB(A) 24 hour) limit (the generally accepted noise criterion for airports) and the lower 13 ANEF (Leq 48 dB(A) 24 hour) limit (the noise criterion suggested for persons newly exposed to aircraft operations).

Mr Cooper calculated that there could in fact be more flight movements per day than the 20 specified and still meet both the 20 ANEF and the 13 ANEF criteria. For the most affected residential property, R7, the maximum number of helicopter movements per day, with two flights between 7pm and 10pm (or 11pm for the Robinson helicopter), that could be permitted and not exceed the 20 ANEF and the 13 ANEF criteria would be 25 for both criteria using the heavier and noisier Squirrel helicopter only or 219 and 138 respectively using the lighter and quieter Robinson helicopter only. In practice, both the Squirrel and Robinson helicopters (or equivalent replacement helicopters) would likely be used and hence the maximum number of helicopter movements per day that could be undertaken and still meet both ANEF criteria would be somewhere between the two data sets.
The consequence is that specifying a limit of 20 helicopter movements per day is conservative and will ensure that helicopter noise will be less than both the 20 ANEF and the 13 ANEF criteria.
The specification of a further limit of 90 helicopter movements per week introduces an additional limitation on noise emissions. Ninety movements per week is materially less than the 140 movements that would result from 20 movements per day for 7 days. As a consequence, there would be less movements per day on average over a week than 20, which would cause the helicopter noise to be even less than it would be for 20 movements per day.
Based on the acoustic experts’ evidence, Nessdee proposed a condition fixing the maximum number of flight movements at 20 per day and 90 in any period of 7 days. The Council did not disagree with this condition, if the Court decided to approve the development. The Council still argued that this number of flights would have unacceptable impacts, including on the amenity of residents and the locality (see below). Mr and Mrs Alston, however, disagreed and argued for setting lower limits of 8 flight movements per day and 28 per week.
I find that setting the maximum number of helicopter movements at 20 per day and 90 in any period of 7 days will minimise the helicopter noise so as to be well within accepted numeric noise criteria, including the 13 ANEF criterion for people newly exposed to aircraft operations.
The third way in which noise will be minimised is by specifying the hours of operation of the heliport. Nessdee originally proposed to limit the hours in which helicopters can land or take-off at the heliport to be between 7am and 11pm each day. After the further acoustic testing and analysis by Mr Cooper, the night time hours of operation were modified. Mr Wasserman nominated, and Mr Cooper agreed, that for any flights after 10pm (the time of commencement of the acoustic night period) the maximum noise level when measured on FAST response should not exceed 65 dB(A) to address sleep arousal criteria. Mr Cooper determined, from the maximum noise levels measured, that the noisier Squirrel helicopter does not satisfy the nominated sleep arousal limit. Hence, no Squirrel helicopter flights should occur after 10pm. The noise measurements of the operation of the Robinson R44 helicopter revealed that, in terms of the sleep arousal limit, take-offs from helipad H1 after 10pm should not occur, however landings to helipad H3 and, by extrapolation from the noise data, helipad H3A, using the west, south and south-west approaches would satisfy the sleep arousal limit. Mr Cooper’s assessment was based on two Robinson helicopter flights between 7pm and 11pm. The acoustic experts, therefore, recommended that for operations after 10pm: no Squirrel helicopter take-offs or landings; no Robinson helicopter take-offs; and Robinson helicopter landings after 10pm must use alternative helipad H3A and approach paths from the west (orange) and south-west (blue).
Nessdee modified its proposal to incorporate these recommendations (see condition 46 and 46a). Nessdee proposed a condition specifying that any landing of helicopters after 10pm not give rise to a maximum noise level of 65dB(A) when measured 1 metre outside any bedroom window at any residential dwelling (condition 46c). Nessdee also proposed a further condition restricting the night time flights (after 10pm) to no more than two per night, six per week and 80 per year. All night time flight movements are limited to helicopters operated by Nessdee’s businesses, Helicruz and Specialist Helicopters (condition 48).
The Council and Mr and Mrs Alston contended for more limited hours of operation, being 7am to 7pm, Monday to Saturday and 8am to 12 noon Sunday (year round). Because of this earlier limit of 7pm on operations, there would be no night time flights and hence no need to impose the conditions recommended by the acoustic experts and agreed to by Nessdee to minimise the risk of sleep arousal between 10pm and 11pm.
I find that it would be acceptable to have night time flights up to 10pm. The acoustic experts have assessed the noise from operating both the Squirrel and the Robinson helicopters in the day and between 7pm and 10pm and found that the noise will not exceed either the 20 ANEF or the 13 ANEF criteria. Mr Cooper also assessed the noise for the Robinson helicopter, with two Robinson flights between 7pm and 11pm. The noise from these operations would also meet both the 20 ANEF and the 13 ANEF criteria. The issue concerns sleep arousal between 10pm and 11pm. The acoustic experts agreed that night time operations after 10pm of the Squirrel helicopter and take-off and certain landings of the Robinson helicopter would exceed the nominated sleep arousal limit.
I consider that night time operations after 10pm should not be permitted at all. The acoustic experts’ assessment that sleep arousal might occur with certain types of helicopters and for certain movements (take-offs and certain landings) would require the imposition of significant restrictions to ensure that night time operations are acoustically acceptable. Yet, such restrictions would be only to enable two flight movements in the hour between 10pm and 11pm on one day, or on three nights in one week, or on 40 nights in one year.
When asked why Nessdee needed to have any flight movements between 10pm and 11pm, Nessdee responded that it was to enable helicopters to return to the heliport after operating elsewhere (such as returning from undertaking night time training elsewhere or a returning charter flight). Such purposes could still be achieved by the helicopter concerned starting the return flight earlier, so as to land at the heliport before 10pm.
I consider that the marginal benefit of being able to operate between 10pm and 11pm in the restricted manner required to meet the sleep arousal limit is outweighed by the risk of sleep arousal and the intrusion on the amenity of residential receivers in the locality.
In summary, I find that no helicopters should be permitted to land or take-off except between the hours of 7am and 10pm Monday to Sunday. The condition fixing the hours of operation should be amended accordingly and the other conditions regulating helicopter operations after 10pm deleted.
The fourth way in which noise will be minimised is by specifying the minimum distance that helicopters using the heliport must keep clear from identified residential receivers. The acoustic experts identified a number of noise sensitive sites (essentially residences) in the locality around the heliport. These sites were identified on a Masterplan in the plan of management (Figure 3). Nessdee proposed a condition requiring that helicopters originating from or terminating at the heliport remain clear of the noise sensitive sites identified in the Masterplan by a distance of not less than 250 metres laterally or 1000 feet vertically. The vertical limit would not apply on take-off or landing, however, the lateral limit would apply at all times (condition 49). The acoustic experts agreed that such a condition would minimise noise contributions.
The Council and Mr and Mrs Alston agreed with this condition. Mr and Mrs Alston nominated an additional residence to those originally identified by the acoustic experts. That residence has now been added to the Masterplan. Mr Cooper also identified a further residence when he undertook the further acoustic testing and this residence has also been added to the Masterplan.
This condition, when coupled with the requirement that helicopters follow prescribed flight paths, will confine the acoustic impacts of helicopters using the heliport on residential receivers in the locality. Residents who objected to the proposed heliport spoke of the unpleasant experiences in the past of helicopters flying close vertically and laterally over their homes. This condition and the conditions prescribing flight paths should reduce these occurrences in the future from helicopters taking off from or landing at the heliport.
The fifth way in which noise will be minimised is by prescribing flight paths that must be followed by helicopters using the heliport. The Council’s and Mr and Mrs Alston’s original concerns were that the heliport could not be safely used in all weather and wind conditions and hence the assessment of the acoustic impacts of the operation of the heliport was uncertain and not demonstrated to be acceptable. To address these concerns, the parties’ aviation experts and acoustic experts further jointly conferred, reassessed and agreed upon the flight paths and landing sites that should be used in different wind conditions and the noise contributions from helicopters using those flight paths and landing sites.
The aviation experts agreed on a primary landing site at the existing facility (H1) and two alternate landing sites (H2 and H3A) in the fields to the south of the existing facility. The location of these alternate landing sites underwent revision a number of times during the hearing but has now been settled and identified in the Masterplan. There would be cleared and adequately designated hover taxi routes and taxiways from the two alternate landing sites to the primary landing site. This would be required by a condition (condition 47) that:

“Cleared and adequately designated hover taxi routes and taxiways are to be provided from the two alternate landing sites (H2 and H3A) to the primary heliport landing site on the alignment provided in the Masterplan, in order to provide for the safe transit of aircraft, in accordance with relevant [Civil Aviation Safety Authority] CASA requirements. Upon completion, the taxi routes and taxi ways are to comply with the description identified in [Civil Aviation Advisory Publication] CAAP 92-2, and is to be certified by an appropriately accredited person.”

Helicopters using an alternate landing site would land to a hover above the ground at the site then hover taxi along the designated route to the primary landing site where it would land on the ground.
The experts agreed on the wind conditions on which the primary landing site (H1) and the alternate landing sites (H2 and H3A) should be used. Their agreement is reflected in the suggested conditions:

“42. Aircraft shall not land at the primary landing site at the facility (H1) in adverse wind conditions, considered to be defined as situations where the wind direction is from the south, south-east, east (at more than 5 knots), west (at more than 5 knots), or south-west (at more than 5 knots).
…
44. Landing sites H2 and H3A shall only be used in the following wind conditions:
Landing site H2: Landing site H2 shall only be used where wind is from the east (at more than 5 knots)
Landing site H3A: Landing site H3A shall only be used where wind is from the south, south-east, [east (at more than 5 knots)], west (at more than 5 knots), or south-west (at more than 5 knots).”

I note that the inclusion in suggested condition 44 of the wind condition from the east as one of the wind conditions in which landing site H3A is to be used seems to be an error, as this is when landing site H2 is to be used and it is not included in the notes to the Masterplan.
To ensure that helicopters using the heliport know the wind conditions that are prevailing at the time of landing, a meteorological monitoring station would be installed at the heliport. The suggested condition requiring this is:

“43. Prior to commencement of the consent, the applicant must install a meteorological monitoring station suitable to record relevant weather conditions including, but not limited to, wind conditions. The station must be capable of delivering wind strength and direction, temperature, and time in a similar manner to an Automated Weather Information System (AWIS). The weather information is to be provided to an automatic replay system accessible by telephone, and/or transmitted by VHF radio for arriving and departing aircraft. Such information as recorded at the meteorological monitoring station must be retained by the applicant for a period of not less than two years and produced by the applicant if requested by an appropriate regulatory authority (such as Orange City Council or the Environment Protection Authority) within a period of 30 days, and in a format that can be appropriately interpreted by Council or the EPA.”

Nessdee, the Council and Mr and Mrs Alston agreed on these conditions. There was, for a time, some concern raised about one of the alternate landing sites (H3A) being on the far side of the creek on the property and therefore helicopters landing at H3A would have to hover taxi across the creek to return to the primary landing site. However, the aviation experts agreed that the very short distance that a helicopter, undertaking a hover taxi manoeuvre, would need to travel to cross the creek posed negligible safety concerns.
The aviation experts agreed on the flight paths that must be used under different wind conditions. Again, these flight paths were revised a number of times during the hearing but have now been settled and identified in Figure 3 of the Masterplan. In summary, the approaches to the primary landing site H1 will be when the wind is from the north-east, north or north-west; the approaches to alternate landing site H2 will be when the wind is from the east; and the approaches to alternate landing site H3A will be when the wind is from the west, south-west, south or south-east. The aviation experts plotted the different approach paths to these landing sites when the winds are from those directions (shown on Figure 3 of the Masterplan). All of these approach paths commence from the south-east of the facility (along a path described as the South-East Approach Axis) but then diverge in different directions to enable the helicopters to approach the appropriate landing site for the prevailing wind conditions. The departure path for all helicopter flights from the heliport is to be along the South-East Approach Axis.
These recommended approach and departure paths were encapsulated in a suggested condition:

“38. The approach paths for aircraft to the facility are to be in accordance with the Masterplan (as per condition 1), adopting the appropriate path as applicable to the prevailing wind conditions at the facility. The departure path for all aircraft is to be in accordance with the South-East Approach Axis as indicated on the Masterplan. The flight paths described in Figure 3 of the Masterplan and limitations on the use of the heliport shall be made clearly available to all crews using the heliport.”

All parties agreed with the wording of this condition, except that Nessdee wished to insert the qualification that the departure path should “generally” be in accordance with the South-East Approach Axis. I agree with the Council that this qualification should not be included. Requiring helicopters to use the designated approach and departure paths is critical to ensuring that the noise contributions of helicopters using the heliport will be as assessed and be within the accepted noise criteria.
The sixth way in which noise will be minimised is by specifying the numeric noise criteria with which heliport operations must comply. The various measures so far proposed are intended to minimise the noise contributions of helicopters using the heliport so as to be less than the numeric noise criteria of at least 13 ANEF. The criterion of 13 ANEF is equivalent to a noise contribution of LAeq 24 hour 48 dB(A). The acoustic experts suggested, and Nessdee accepted, a condition requiring that the operation of the heliport not give rise to a noise contribution exceeding LAeq 24 hour 48 dB(A) on any day when assessed at any residential receiver identified on the Masterplan (condition 45). The residential receivers identified on the Masterplan were extended to include the residences identified later by Mr and Mrs Alston and Mr Cooper.
The Council and Mr and Mrs Alston agreed with the approach of specifying numeric noise criteria but disagreed as to the particular numeric noise criteria that should be specified. The Council accepted the use of a noise contribution of LAeq 24 hour 48dB(A) but contended that, in addition, a maximum noise level should be specified. The Council submitted that this criterion should be:

“The operation of any helicopter from the heliport shall not give rise to a level greater than a maximum noise level (LMax) of 80 dB(A) when assessed within 30 metres of any residential receiver identified on the Masterplan.”

Mr and Mrs Alston contended that the LAeq 24 hour noise contribution should not exceed 40 dB(A) (instead of 48 dB(A)) and the LMax should be 78 dB(A) (instead of 80 dB(A)).
I find that it is appropriate to require that the operation of the heliport not give rise to a noise contribution exceeding LAeq 24 hour 48 dB(A) on any day when assessed at any residential receiver identified in the Masterplan. This figure of 48 dB(A) was recommended by the acoustic experts and is the foundation of the 13 ANEF criterion used by them to assess the acceptability of acoustic impacts. Mr and Mrs Alston’s suggested lower noise level of 40 dB(A) was derived from the decision in Lilley v Lithgow City Council [2007] NSWLEC 608 to grant development consent for a different type of heliport in a different location (over wilderness areas and national parks). It is not an appropriate noise level in this case.
I do not agree that specification of a maximum noise level is appropriate or helpful in the circumstances of this case.
Neither of the acoustic experts agreed with the Council’s suggestion to specify a maximum noise level. Mr Cooper said that the appropriate criterion was the LAeq 24 hour criterion, which averages the noise contributions over a 24 hour period rather than the few seconds used for a maximum noise level. Use of the LAeq 24 hour criterion enables the assessment of compliance with the 13 ANEF criterion, but the maximum noise level does not. Both Mr Cooper and Mr Wasserman said that quick changes in prevailing weather and winds could increase or decrease the maximum noise levels experienced at residential receivers, despite there being no change in helicopter operations. There is also the practical difficulty that there is nothing that the operator of the heliport or pilots of helicopters can do, apart from implementing all of the noise mitigation measures discussed, to ensure that the maximum noise level does not exceed the level stated. Specifying a maximum noise level has, therefore, no action-forcing utility.
The seventh way in which noise will be minimised is by specifying the types of activities that can be undertaken at the heliport. Certain activities can give rise to higher noise contributions and greater acoustic impacts than other activities. Nessdee has agreed not to undertake low level training or advance flight training at the heliport, which can involve repetitive low level circuits and take offs and landings. Such activities are noisier. Nessdee proposed, and the Council and Mr and Mrs Alston agreed with, a condition banning such activities:

“41. The airspace above the Highland Heritage Estate and within a 4 kilometre radius must not be used as a low level training area and/or for advanced flight training. For avoidance of doubt this condition does not prevent trainee pilots taking off and landing for the purpose of flying to and from any training area beyond the boundaries of the Highland Heritage Estate.”

The eighth way in which noise will be minimised is by requiring the preparation and implementation of a plan of management regulating the operation of the heliport and helicopters using the heliports. A draft plan of management has been produced which identifies, amongst other matters, the primary and alternate landing sites, approach and departure paths, the nearby sensitive receivers and flight movement management. Figure 3 of the plan of management is the Masterplan. The parties agreed that the plan of management would need to be revised to reflect the terms of any decision of the Court to grant approval. The Council originally proposed a deferred commencement condition requiring the plan of management to be finalised and submitted for approval to the Council. The Council subsequently requested that instead, if the Court indicated it would grant consent, the plan of management should be revised in light of the Court’s reasons, and submitted to the Court for approval as part of the development consent.
Amongst the revisions the Council contended should be made are that the plan of management should include measures to control the operation of helicopters as well as methods to measure and monitor compliance with any conditions of consent, including tracking and recording the approach and departure paths and altitude of all helicopters, the number of helicopter movements, the types of helicopters, and maintaining and acting upon complaints about helicopter movements, landings and take-offs (see suggested deferred commencement condition A(i) to (iv)).
A proper plan of management, revised to address such matters, will be a useful means of ensuring that noise from heliport operations will be as assessed by the acoustic experts and within the accepted noise criteria. Conditions of consent can ensure that operations are carried out in accordance with the plan of management (conditions 1 and 34).
The final way in which noise will be minimised is by requiring acoustic compliance testing after helicopter operations commence. The parties agreed that a condition (condition 46b) requiring such testing should be imposed:

“46b. Within 90 days of issue of an occupation certificate/commencement of the use of the Orange East Heliport an acoustic compliance test shall be undertaken for a full 24 hour period for locations R2, R6 and R7 and the helicopter Leq 24 hour [noise] contribution shall be determined. The testing shall be based on the maximum daily permitted helicopter movements authorised by the development consent and using the [Airbus] AS350 [Squirrel] helicopter. Any issues of acoustic non-compliance shall be addressed by changes/alterations to the Masterplan and subject to retesting to confirm compliance.”

The implementation of these nine categories of measures to control helicopter operations and mitigate noise will ensure that noise from the operation of the heliport will not only meet the 20 ANEF and 13 ANEF criteria, but also minimise acoustic impacts on residential receivers in the locality.
Nevertheless, the Council and Mr and Mrs Alston still contended that helicopter operations would cause unacceptable impacts on the amenity of residents in the locality and of Fredericks Valley itself, justifying refusal of the proposed heliport.
The Council and Mr and Mrs Alston contended that compliance with quantitative noise criteria, such as the 20 ANEF or 13 ANEF criteria, is not sufficient to conclude that the acoustic impacts will be acceptable. The Council contended that the Court must make a qualitative assessment based on an understanding of the current acoustic environment of sensitive receivers and the reasonableness of the proposed acoustic impacts on those receivers and Fredericks Valley. The Council referred to the evidence of the parties’ planners, Mr Fletcher and Mr Walker, that one would not merely apply an ANEF standard to noise assessment, and that a number of other factors would be taken into account.
The Council referred to the evidence of residents who said that they enjoyed the quiet rural atmosphere of Fredericks Valley and surrounding areas and that their enjoyment would be disrupted by noise from helicopter operations. The Council submitted that this quiet rural atmosphere is one of the special aesthetic values of the E3 Environmental Management Zone.
The Council and Mr and Mrs Alston submitted that the scale of the proposed heliport will unreasonably impact on the quiet rural atmosphere. The scale of operations includes the number of helicopter movements (20 per day and 90 per week) and the hours of operation, including take-off and landing of helicopters after 7pm. The residents said they are adversely affected by helicopter movements associated with the existing facility (a private helipad) and that these impacts will be made worse by the significant increase in helicopter movements associated with the proposed heliport. The residents said that they had not understood that a heliport could be approved in the E3 Environmental Management Zone. They thought that helicopter operations would have to be confined to Orange Airport.
The Council relied on the evidence of Mr Fletcher, a town planner called by the Council, that it was not reasonable to increase the number of helicopter movements beyond the seven movements per week permitted under the existing development consent for the private helipad, on the basis that an alternative location of Orange Airport is available. Mr Fletcher was of the opinion that where capacity exists at Orange Airport to accommodate the additional helicopter flights (that are proposed to be undertaken at the heliport) without causing additional noise to residents beyond exceed the existing 20 ANEF contour, generating new noise impacts to residents surrounding the proposed heliport by operating those flights from that heliport is unacceptable.
Mr Walker, the planner called by Nessdee, disagreed with Mr Fletcher. Mr Walker noted that heliports are a permissible use in the E3 zone. He referred to the statement of McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118] that:

“In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

Mr Walker said that the subject site is a suitable location for the proposed heliport and can achieve acceptable environmental impacts, including acoustic impacts (as the acoustic experts demonstrated). The fact that the proposed helicopter flights could be accommodated at Orange Airport is not to the point. The mere existence of an alternative site for a development is not sufficient reason to refuse an application for development at the site proposed. The Court must deal with the development application at hand and determine whether development on the site proposed in that application results in acceptable environmental impacts.
I reject the Council’s and Mr and Mrs Alston’s argument that the proposed heliport will cause unreasonable acoustic impacts on the residents in Fredericks Valley and surrounding areas. The reasonableness of the expectations of residents concerning the type and scale of development that can be carried out in an area is influenced by the zoning and the range of uses permitted. As McClellan CJ said in BGP Properties Pty Ltd v Lake Macquarie City Council at [117] and [118]:

“In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 at 318-319; (1971) 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Lanham’s Properties Pty Ltd v Sydney City Council (1953) 19 LGR (NSW) 163; Jannsen v Cumberland County Council (1952) 18 LGR (NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

In this case, the development site and the residences in Fredericks Valley and surrounding areas are within the E3 Environmental Management Zone. That zone expressly confines the range of permissible developments. The purpose is, as the second objective states, “to provide for a limited range of development that does not have an adverse effect on those values”. “Those values” are the “special ecological, scientific, cultural or aesthetic values” of areas included in the E3 zone. The limited range of permissible development includes air transport facilities, which includes a heliport open to the public, and helipads not open to the public. The scale of the former development (which ordinarily will be designated development with more than 7 flight movements per week) is larger and more intensive than the latter development (which might not be designated development).
In these circumstances, residents in the E3 zone cannot reasonably have expected that heliports could not be carried out with consent in the E3 zone or that any additional helicopter operations would be confined to the existing Orange Airport. Similarly, Mr Fletcher’s view that whilesoever Orange Airport has capacity for additional helicopter flights, it is unreasonable to approve the establishment of a heliport at another location is at odds with the strategic planning reflected in the zoning and the Land Use Table for the E3 zone.
It is of some importance that the Standard Instrument – Principal Local Environmental Plan on which Orange LEP is based does not specify air transport facilities or helipads as development permitted with consent in the E3 zone. The Council made a deliberate strategic planning decision to especially include air transport facilities and helipads as development permitted with consent in the E3 zone. Furthermore, the Council did not include any provisions confining the location of such development in the zone or restricting the carrying out of such development until Orange Airport reaches capacity.
There also can be no reasonable expectation that consent should not be granted to development of a site for a purpose for which it is zoned unless and until development on another site reaches capacity. Neither the EPA Act nor Orange LEP supports such an expectation. Similarly, the mere existence of an alternative site that has capacity to accommodate a proposed development does not make it unreasonable to grant consent to that development at the proposed site. A consent authority’s obligation is to consider and determine the development application that has been made for the identified development on the identified land. If development on that land is permissible and acceptable (having regard to all the relevant matters), it should be approved. Development on that land does not become unacceptable because the development could also be carried out acceptably on other land.
Returning to the issue of the qualitative acceptability of the proposed heliport in the rural setting of Fredericks Valley, I find that the development, confined in its operation and with the mitigation measures I have determined to be appropriate, will not have unreasonable or unacceptable acoustic impacts on the aesthetic values of the valley or the amenity of residents in the area.
One further issue about noise needs to be addressed. Mr and Mrs Alston raised concern that noise and vibration from helicopters using the heliport might give rise to rattling of the windows of the heritage house “Wellwood”, identified as residential receiver R2. If so, this might lead to acoustic treatment of the windows to mitigate noise and vibration, which might adversely affect the heritage values of the house.
The acoustic experts examined this issue on a number of occasions. In particular, during the further acoustic testing in August, both experts attended the house to observe any effect of helicopter operations during the testing on the house. Observations during the Squirrel helicopter taking off from and landing at helipad H1 could not detect any vibration of the dining room window (the large window said by the residents to be affected during nearby helicopter flights). The acoustic experts agreed that vibration of windows is caused by raised levels of low frequency noise but that the types of helicopters currently used and to be used at the heliport do not generate sufficient low frequency noise to cause vibration of the windows.
The acoustic experts agreed that the proposed helicopter operations at the heliport will not raise an issue in terms of vibration to the windows at the house at R2. They agreed that there is no reason for the provision of double glazing or noise control measures to be undertaken to the house.
I agree with the acoustic experts that the proposed helicopter operations at the heliport will not cause sufficient vibration to the windows at the house “Wellwood” to necessitate undertaking any double glazing of the windows or other noise control measures interfering with the fabric of the house and the heritage values of the house.

The acceptability of the visual impacts

Although the Council and Mr and Mrs Alston raised the contention that the proposed heliport would have adverse visual impacts upon Fredericks Valley, this turned out to be a narrow issue.
The parties’ planners agreed that the visual impact of the heliport is essentially limited to the increased movement of helicopters and that there are no significant visual impacts arising from the existing or proposed ground facilities. They agreed that if visual impact was the only contention, it would not be sufficient to warrant refusal of the heliport. The only question about the visual impacts that the planners raised was the increase in the number of helicopter movements from the 7 movements per week for the existing private helipad to the 90 movements per week for the proposed public heliport. Although the planners agreed that this increase in helicopter movements would not be perceived to be a significant visual impact to the average casual observer, it might be perceived to be a significant impact to a sensitive observer.
I find that the number of helicopter movements that would be permitted per day (20) or per week (90) will not cause a significant visual impact on residents or on the aesthetic values of Fredericks Valley. The relevant inquiry is not whether the increase in helicopter movements from the existing helipad to the proposed heliport would be perceived to cause a significant impact, but rather whether the actual number of helicopter movements for the proposed heliport would have an unacceptable visual impact. The acceptability or unacceptability of the visual impact is not to be judged from the viewpoint of the sensitive observer, but rather the reasonable person living or working in or visiting the locality. The reasonable person is to be attributed with knowledge that the proposed development of a heliport, with its attendant characteristics and scale, is permitted with consent in the zone, including on the subject site.
I find that the proposed heliport, with the particular limitations proposed including on the number of helicopter movements, flight paths, landing sites and hours of operation, will not result in unacceptable visual impacts to the reasonable person in the locality.

The acceptability of the combined noise and visual impacts

I have found above that the proposed heliport will not result in unacceptable noise impacts or visual impacts. For the same reasons, I also find that the combination of the noise impacts and visual impacts will not be unacceptable.

The adequacy of the environmental impact statement for the heliport

The Council raised two contentions that the environmental impact statement (“EIS”) did not adequately address the statutory requirements for an EIS, including the requirements of the Secretary of the Department of Planning. Because the proposed heliport was designated development, the development application needed to be accompanied by an EIS (s 78A(8)(a) of the EPA Act). The EIS must be in the form prescribed by the regulations. Schedule 2 of the EPA Regulation prescribes the requirements for an EIS.
Clause 3(8) of Sch 2 of the EPA Regulation requires the applicant responsible for preparing an EIS to ensure that the EIS complies with any environmental assessment requirements that have been provided by the Secretary. In this case, the environmental assessment requirements provided by the Secretary included: “Project justification – The EIS must include a detailed justification of the proposal considering alternatives and including the need for the project as well as the impacts if the project were not to be carried out”.
Clause 7 of Sch 2 specifies the content of an EIS, including in cl 7(1)(c):

“an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure”.

Clause 7(1) is subject to the environmental assessment requirements provided by the Secretary that relate to the EIS (cl 7(2) of Sch 2).
The Council contended that the EIS failed to properly address the requirements to provide a detailed justification of the development, consideration of alternatives, the need for the development and the impacts if the development were not to be carried out.
The Council put this contention not as a legal or jurisdictional point. The Council did not contend that the failure to properly address these matters in the EIS caused the EIS not to be an environmental impact statement for the purposes of the EPA Act and the EPA Regulation, with the consequence that the Court would have no power to determine the development application for the heliport by granting consent. (The requirement for an EIS to accompany a development application for designated development is jurisdictional: see Helman v Byron Shire Council (1995) 87 LGERA 349). Rather, the Council submitted that the environmental assessment requirements of the Secretary and of Sch 2 of the EPA Regulation added a layer of assessment that a consent authority needed to consider beyond that required for development that is not designated development. The Council submitted that the consent authority was required to consider whether the proposed development is justified by reference to the need for the development (considering alternatives as well as the impacts if the project were not carried out). The Council submitted that it is not enough to say that the zoning permits the proposed development when there is a further hurdle to cross of whether the proposed development is justified having regard to other alternatives that could meet the applicant’s needs and have less impacts on the community.

I will shortly address the various ways in which the Council contended that the EIS failed to properly address the justification and need for the development, the alternatives to the development, and the impacts if the development were not to be carried out. But I should note at the outset that this argument did not assist me in my consideration and determination of the development application for the proposed heliport in the circumstances of this case. As I have explained earlier, I have found that the proposed heliport, as amended and with the limitations on operations and the mitigation measures that I have found to be appropriate, will not have unacceptable noise or visual impacts. The development of a heliport is identified as one of the limited range of developments permitted with consent in the E3 zone. The particular site proposed for the heliport will be suitable for helicopter operations in the ways now proposed.
In these circumstances, even if the EIS were to have included an inadequate consideration of the justification or need for the development or the alternatives to the development or the impacts if the development were not to be carried out, this would not change my findings of the suitability and acceptability of the heliport on the site proposed. This conclusion might be different if the suitability or acceptability of the development on the site proposed was marginal, only barely being suitable or acceptable. Then, a weak justification or need for the development or the existence of a much better site for the development where there would be much less environmental impacts might tip the balance, justifying the refusal of the development on the site proposed. But this is not the present case.
I return to summarise the ways in which the Council contended that the EIS was inadequate. Nessdee produced an EIS and two addenda. The EIS of September 2015 contained four sections addressing the topics required by the Secretary of the need for the project (3.2), justification (3.3), alternatives (3.4) and consequences of not proceeding (3.5).
In relation to the need for the project, the EIS noted that initially Nessdee needed to improve connectivity between the operations in Orange (at the Highland Heritage Estate) and in the Hunter Valley. Opportunities for diversification of the business into tourism and other sectors were then identified, such as use by visitors to and users of the Highland Heritage Estate, including wedding parties and tourists. The proposal is to expand the use of the site and provide opportunities in the region for tourism, flight training and other uses.
In relation to justification of the proposal, the EIS stated that the heliport with a part tourism focus would have benefits for the tourism sector of Orange and flow on benefits for the town and region. The heliport would also provide a high quality aircraft facility that is an alternative to Orange Airport for helicopters visiting the region.
Section 10.1 of the EIS provides a summary of the justification for undertaking the proposal:

“In summary the proposal is considered to be justified on the basis that [it]:
• Is consistent with the zoning of the area and represents an approved use;
• Represents a logical expansion of existing facilities that provides an improved business opportunity within an existing location, rather than developing a greenfield site;
• Provides an alternative site for visitors to the region thereby improving the attractiveness of the region as a destination;
• Provides an opportunity for flight training within the region thereby operating as an attractor for visitors and having flow on tourism and business benefits;
• The site is suitable for the proposal; and
• Is consistent with the principles of ecologically sustainable development.”

In relation to alternatives considered, the EIS noted that “[g]iven the existing consent for use of the site, no alternative sites were considered.” This was a reference to the current development consent for the helicopter landing site (which is a helipad under the current definition). The EIS did consider alternatives to the operation of the heliport proposed in the development application. These alternatives included “a range of business models, various take-off and landing approach path options, the use of different machines [helicopters], and the use of the site by emergency machines (including PolAir and the Aeromedical helicopters).”
In relation to the consequences of not proceeding, the EIS noted that they were that:

“• The development would not appropriately take advantage of the expansion opportunities identified; and
• The region would not benefit from improved tourism and training opportunities.”

The EIS Addendum of 6 November 2015 further addressed the need for the project (1.1.1); justification (1.1.2) and alternatives (1.1.3). In relation to the need for the project, the Addendum accepted that the project results in a change of use of part of the site from a helicopter landing site to a heliport, but said that the reason was to “diversify and value add to current operations”. Nessdee had identified a demand in the region for increased tourism opportunities, particularly in conjunction with local tourism events such as Food and Wine Weeks and local sporting events. All of these events attract tourists to the region and the provision of enhanced tourism opportunities, such as tourist and charter flights, adds to the appeal and attraction of the region as a whole. Charter helicopter flights offer a unique transport option for visitors. Improved tourism to the region benefits the community as a whole and ensures a diverse economy. The Addendum also noted that development of the facility enables other opportunities such as flight training, further adding value to the operation and improving economic viability.
In relation to justification, the Addendum noted that utilising the existing infrastructure on site to develop the facility represents an appropriate use of resources rather than developing a second facility with increased construction costs and environmental impacts. The Addendum stated that:

“The strategic acceptability of the proposed land use is provided by virtue of the permissibility of the use in the zone. On a site by site basis, consideration of a proposed land use against the relevant zone objectives, together with an assessment of anticipated impacts, confirms the compatibility of the land use with the local area.”

The Addendum concluded that: “On balance it is considered that the justification of the use of the site for a heliport is not antipathetic to the LEP and zone objectives.”

In relation to alternatives, the Addendum reasserted that:

“utilisation of the existing site and infrastructure precluded the consideration of alternative sites. To close and dismantle this facility and redevelop elsewhere, or to develop a second facility, was considered cost prohibitive and a poor use of resources. The subject site is beneficially located in close proximity to Orange to take advantage of tourists arriving from Sydney or those staying in Orange or the surrounding area.”

The Addendum did then consider briefly the alternative site of Orange Airport:

“Similarly, the prospect of the development occurring at the Orange Airport was dismissed on the basis that the location is less accessible, that other competing businesses operate from this location, and also because the part-tourism/charter focus of the business has clear linkages with the existing tourism function of the site (ie wine tasting, functions, weddings etc). The proposal augments these current uses and assists in development and cementing the ongoing viability of the site.”

The Addendum concluded that “alternative locations for the land use were discounted and the subject site is considered the most appropriate site.”
The EIS Addendum (2) of May 2016 (revised) responded to the Council’s request for clarification on the justification for the development (1.6.1), the consequences of not carrying out the development (1.6.2) and the alternatives to carrying out the development (1.6.3).
The section on justification of the development (1.6.1) is extensive and detailed (over 12 pages). As Addendum (2) noted:

“In assessing whether the proposed heliport and ancillary features is justified, consideration has been given to both biophysical and socio-economic factors, including the potential for residual effects on the environment and the potential benefits of the project.”

The subsection on biophysical factors considered the impacts and mitigation measures relating to traffic and access, noise, surface and ground water and hazards. The subsection on socio-economic benefits considered how the project would:

“• Provide a high quality, safe and accessible heliport that is proximal to town, connects with other related tourism ventures and provides opportunities for diversification of the applicant’s related business holdings; and
• Bolsters and supports the local and regional tourism industry and through this, the local economy.”

The subsection expanded on these benefits.

The subsection on justification of specific elements analysed the use of a helicopter landing site for business related purposes, tourism in the form of joy flights, private charter, pilot training, emergency use by the operator and use by private operators and the justification for these uses. The subsection also addressed the uses of the site considered ancillary to the dominant uses of the heliport, including pilot training and pilot accommodation.
The section on the consequences of not proceeding (1.6.2) noted that they would be that the opportunities offered by the proposed development, which would benefit Nessdee and the wider community, would not be realised. The section also addressed the consequences of not proceeding with the ancillary uses of pilot training and pilot accommodation.
The section analysing alternatives (1.6.3) focused on the “logical alternative to development of the subject site is to utilise the existing facilities at Orange Airport to host the development.” The Addendum (2) stated that this is not a viable option for Nessdee for six reasons: safety and security (including vandalism of equipment at Orange Aiport); one stop shop (the benefit and attraction of offering multiple tourism elements in one location, such as the heliport with the existing function centre and cellar door); non-commercial use (housing and staging the helicopter from Orange Airport for the current business use is impractical); tourism benefits not realised (not proceeding with the project at the existing site would not realise the opportunity to bolster and diversify the region’s tourism industry); value add to local business (not proceeding with the project at the existing site would not realise the opportunities to enhance the viability of the existing business and its capacity to contribute to the local and state economy); and duplication of services (proceeding with the project at the existing site will not unacceptably duplicate services or lead to increased flight activity and reduced safety for users).
The Council criticised the arguments advanced in the EIS, EIS Addendum and EID Addendum (2) for the need for and justification of the proposed heliport and discounting the alternative site of Orange Airport. The Council submitted that there was not an analysis of the alternative of operating the business (the various activities proposed to be carried out at the heliport on the existing site) from Orange Airport and transporting clients the 7km to the existing facility.
The Council submitted that the existence of unlawful infrastructure at the existing site (some of the buildings and structures erected went beyond what was authorised by the existing development consent for the helipad) should not be able to be relied upon to justify the proposal and discount use of alternatives.
The Council relied on the view of Mr Fletcher that Orange Airport has capacity to accommodate all of the proposed activities and that the acoustic and visual impacts of the proposed heliport at the existing site are unreasonable when Orange Airport can provide the services that Nessdee desires. By using the existing Orange Airport, impacts from helicopters are able to be confined to one location rather than spreading the impacts across the community.
I reject these criticisms of the Council. They do not establish that the EIS as a whole (the EIS, EIS Addendum and EIS Addendum (2)) inadequately or improperly assessed the matters required by the environmental assessment requirements of the Secretary or the EPA Regulation. The EIS as a whole clearly did include an analysis of the need for and justification of the development of the proposed heliport at the existing site, feasible alternatives to the carrying out of that development, and the consequences of not carrying out that development. The Council just disagrees with that analysis. But this does not make the analysis inadequate.
The analysis in the EIS is based on the objectives of the proposed development to encourage synergies with and otherwise build the existing business and to diversify the business operations at the existing site. These objectives underpin the need for and justification of the proposed development at the existing site and the consequences of not proceeding with the development on the existing site. The objectives of the development also explain why conducting helicopter operations at another site, Orange Airport, is not a feasible alternative. Clause 7(1)(c) of Sch 2 of the EPA Regulation requires an analysis of any feasible alternatives to the carrying out of the development “having regard to its objectives.” Carrying out the development on a site other than the site on which the existing business of the function centre and cellar door and the existing facility of the helipad are conducted would not achieve the objectives of co-location and diversification of business operations on the existing site.
I find that the EIS as a whole has included an analysis of the matters required by the Secretary and the EPA Regulation. I have taken this analysis of these matters into consideration in determining the development application for the proposed heliport at the existing site.

The public interest

The Council and Mr and Mrs Alston contended that the proposed heliport is not in the public interest as it does not represent the orderly and economic development of land in accordance with the planning regime. The Council submitted that:

“When weighing up the zoning of the land, the fact that the proposal is for designated development, the proximity to Orange Airport which can provide services to the applicant at the intensity it desires and the intrusiveness of the helicopter noise on surrounding residents of consistent events each week, the Court would conclude that on balance the public interest would be served by refusing the application.”

I do not agree. The zoning of the land permits the development of a heliport on the land. The declaration of heliports as designated development triggers heightened environmental impact assessment (in the form of an EIS) but does not affect the determination to grant or to refuse development consent. The Council is in error in asserting that because the proposal is designated development, the public interest is served by refusing the development.
The capacity of Orange Airport to accommodate the helicopter operations proposed by Nessdee is not a reason to refuse the application for the development of the existing site. I have found that the proposed heliport would have acceptable environmental impacts (including noise and visual impacts). The helicopter noise would not be intrusive on surrounding residents, but will meet accepted numeric noise criteria. Indeed, the proposed heliport will operate, and will be required to operate, to ensure compliance with the 13 ANEF criterion, a lower criterion than the 20 ANEF criterion applying to Orange Airport. Hence, contrary to the Council’s assertion, operation of the heliport will not result in any additional land being exposed to noise levels of 20 ANEF or above.
In these circumstances, the public interest does not favour refusing the application for the proposed development.

Conditions of consent

I find that the proposed heliport is an appropriate use of the land and that the impacts of the development will be acceptable and can be managed satisfactorily by appropriate conditions of consent. The parties have agreed on many of the conditions on which consent should be granted. There were, however, some areas of disagreement.
The first area of disagreement concerned the conditions regarding helicopter operations, including hours of operation, flight movements, approved aircraft, flight paths, and noise limits. I have addressed the issues of disagreement concerning those matters in my discussion of the noise mitigation measures. The conditions need to be amended to reflect my rulings. This would include restricting operations to 10pm and deleting conditions regulating operations after 10pm.
The second area of disagreement concerned the ancillary uses of pilot training and pilot accommodation. Mr and Mrs Alston argued that these ancillary uses should not be permitted and conditions dealing with the uses deleted. Nessdee did not propose to conduct low level training or advanced flight training for pilots in the airspace above or within a 4km radius of the heliport. A condition of consent would enforce this (condition 41). Instead, such training would be undertaken at training areas further away from the heliport. However, pilots undertaking such training could take off and land at the heliport for the purpose of flying to and from the training areas further away. The only pilot training proposed to be conducted at the heliport is classroom based pilot training. Classrooms will be provided in the new building proposed. Accommodation for students undertaking pilot training is also proposed to be provided in the new building. The number of students who can undertake classroom based pilot training and stay in the pilot accommodation is very small, only 4 students. This would be enforced by a condition (condition 27b).
I consider this restricted use for classroom based pilot training and pilot accommodation to be acceptable. No party contended, and there is no evidence, that these uses will cause any environmental impacts. Accordingly, the conditions regulating these uses should remain.
The third area of disagreement concerned fuel storage and refuelling areas and the potential contamination of surrounding waters. Mr and Mrs Alston expressed concern that spills on hardstand areas of the facility may escape and contaminate the creek to the east. They noted that the site and the creek are in the Orange drinking water catchment.
Nessdee responded to this concern by providing a draft stormwater management report dated September 2017. The report describes the system and management measures to:

“• Manage water quality risks to a low level in the Orange drinking water catchment;
• Manage site stormwater runoff to ensure that post development loads are less than pre-development loads;
• Ensure that all potentially contaminated stormwater associated with day to day operations is managed by a suitable sized and operated stormwater quality improvement device (SQID);
• Capture 100% of any large hydrocarbon or chemical spills for removal off-site and treatment/disposal; and
• Capture 100% of firefighting water including diluted firefighting foams in the event of a fire emergency, for removal offsite and treatment/disposal.”

The Stormwater Management Plan included plans depicting the system and structures for managing stormwater and controlling erosion and sedimentation.

Conditions of consent would require finalisation and implementation of the finalised Stormwater Management Report (Condition 1). Condition 11 requires:

“Stormwater runoff from the apron, refuelling and storage tanks must be adequately treated to remove pollutants prior to discharge into the catchment. Significant fuel spills (being spills which cannot be dealt with by the use of a single spill kit) and fire-fighting foam shall be collected and retained on site and discharged of by pump out, via a contractor. The pump out truck is to operate from the hard stand area. The details of the proposed system to treat pollutants shall be submitted to and be approved by Orange City Council prior to the issue of a Construction Certificate.

Mr and Mrs Alston suggested a rewording of this condition to require that:

“Stormwater runoff from the apron, refuelling and aviation fuel tanks must not be permitted to be discharged into the catchment and must be collected and discharged off-site in accordance with EPA and NSW Water Quality Objectives (WGOs)…”.

Other conditions of consent require the operator of the heliport to comply with the general terms of approval issued by the Environment Protection Authority and included as conditions of consent. These include the following conditions 50 to 52:

“50. The applicant must provide storage on site of appropriate and suitable biodegradable fire-fighting foam that does not contain per-and/or poly-fluoroalkyl substances (PFAS) in a sufficient quantity to respond to a fuel or chemical incidents including a fuel or aircraft fire or fuel spill, and stored in a manner so as to be accessible by Fire and Rescue NSW in a fire incident. Such arrangements to be provided to the satisfaction of Fire and Rescue NSW prior to the commencement of the use.
51. Fuel storage and refuelling areas and the landing apron are to be designed, installed and maintained in accordance with AS1940 as applicable to the satisfaction of Council or the EPA, to ensure containment of fuel, chemicals, oil and fire-fighting products, including but not limited to fire-fighting foams. Design details are to be provided and approved by Council prior to issue of a construction certificate.
52. The fuel storage and refuelling areas and landing apron are to be designed to discharge any potentially contaminated stormwater to a containment device for treatment prior to discharge. Significant fuel spills (as defined in condition 11) and fire-fighting foam shall be collected and retained on site and discharged of by pump out, via a contractor. The pump out truck is to operate from the hard stand area. Such system is to be designed, installed and maintained to the satisfaction of Council. Design details are to be provided to and approved by Council prior to issue of a construction certificate. Such systems must have sufficient capacity to accommodate a spill volume (at least) equal to or exceeding the maximum fuel storage volume.”

Mr and Mrs Alston suggested a rewording of condition 52 to be consistent with their view that there should never be any discharge to the catchment and everything must be collected and discharged off-site.
I find that the system and management measures to deal with site stormwater runoff, contaminated stormwater, hydrocarbon or chemical spills and firefighting water are now adequate. The conditions of consent proposed by Nessdee are satisfactory but their wording needs to be clarified to be consistent with each other and to ensure the finalisation and implementation of the stormwater management plan (to be implemented at all times and not just before issue of the construction certificate).
The fourth area of disagreement was the duration of the consent. Mr and Mrs Alston submitted that a condition should be imposed that:

“The use permitted by this consent will cease at the expiration of five (5) years from the date this consent is granted. Any further development application to continue the use must be lodged before the end of the five year period.”

Mr and Mrs Alston noted that such a condition was imposed by the Court in granting consent to a heliport in Lilley v Lithgow City Council [2007] NSWLEC 608.

Nessdee opposed the condition.
I do not consider it is necessary to impose a condition limiting the duration of the consent. There has now been adequate description of the development, the environment likely to be affected by the development, the likely impact on the environment of the development, and the measures proposed to mitigate any adverse effects on the environment of the development. This has permitted an assessment and a finding that the development can be carried out without resulting in unacceptable environmental impacts. Conditions of consent can ensure that this occurs. These conditions can be enforced. In these circumstances, it is not necessary to fix, in effect, a trial period of 5 years for the operators to establish that the development can be carried out without causing unacceptable environmental impacts.
The fifth area of disagreement was the enforceability of the conditions regulating helicopter operations. Mr and Mrs Alston queried whether the various conditions regulating helicopter operations, particularly the flight paths, minimum distances to residential receivers and helipads to be used, are within power and enforceable, having regard to the federal aviation authorities’ functions to deal with these matters. I do not share these concerns. A consent authority determining a development application under the EPA Act and the Court exercising the functions of the consent authority on appeal have power to impose the conditions in granting consent to the heliport. The functions of the federal aviation authorities to regulate aviation are not in conflict and do not displace the functions of the consent authority and the Court.

Directions to finalise the proceedings

The parties need now to finalise the documentation (such as the plans of management) and conditions of consent so as to enable the Court to grant development consent to the proposed heliport. I will make directions for this to occur. I will fix a return date before the Court in case a party wishes to make any further submission about the revised documentation and conditions of consent. The parties should prepare and provide on that occasion agreed or competing minutes of the orders that the Court should make, including granting leave to amend the development application, ordering the payment of costs under s 97B of the EPA Act, upholding the appeal and granting consent on conditions.
The Court orders:

The applicant is to prepare, file and serve a Plan of Management for Orange East Airport, a Stormwater Management Report for the Proposed Heliport and any further plans by 8 December 2017.

The parties are to confer and agree on the conditions of consent (revised in accordance with the Court’s rulings) by 13 December 2017 and file the revised conditions by 14 December 2017.

The proceedings are listed on 19 December 2017 at 9:30am for further hearing and disposal of the proceedings.

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Decision last updated: 28 November 2017

Medium Neutral Citation:	Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158
Hearing dates:	15–18 August, 3 and 6–7 November 2017
Date of orders:	28 November 2017
Decision date:	28 November 2017
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1) The applicant is to prepare, file and serve a Plan of Management for Orange East Airport, a Stormwater Management Report for the Proposed Heliport and any further plans by 8 December 2017. (2) The parties are to confer and agree on the conditions of consent (revised in accordance with the Court’s rulings) by 13 December 2017 and file the revised conditions by 14 December 2017. (3) The proceedings are listed on 19 December 2017 at 9:30am for further hearing and disposal of the proceedings.
Catchwords:	APPEAL – heliport – acoustic impacts of helicopter operations – proposal amended to confine helicopter operations and reduce acoustic impacts – amended proposal will comply with accepted numeric noise criteria – whether still unacceptable acoustic impacts on residential amenity and aesthetic values of locality – whether acoustic impacts unacceptable because of availability of alternative site at nearby airport – visual impacts of helicopter operations – whether unacceptable visual impact on aesthetic values of locality – environmental impact statement for designated development of heliport – adequacy of EIS consideration of need and justification for heliport and alternative sites – public interest – whether public interest favours refusal – development consent should be granted on conditions – conditions to be settled
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 77A(1), 78A(8)(a), 97, 97A Environmental Planning and Assessment Regulation 2000 Sch 2 cl 3(8), 7, Sch 3 cl 2(b) Orange Local Environmental Plan 2011 cll 2.3(2)
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Helman v Byron Shire Council (1995) 87 LGERA 349 Lilley v Lithgow City Council [2007] NSWLEC 608
Category:	Principal judgment
Parties:	Nessdee Pty Limited (Applicant) Orange City Council (First Respondent) Mr Gavin Alston (Second Respondent) Ms Esme Alston (Third Respondent)
Representation:	Counsel: Mr C McEwen SC and Mr M Staunton (Applicant) Mr P Clay SC and Ms J Reid (First Respondent) Ms B Scott as Agent for the Second and Third Respondents Solicitors: Cheney Suthers Lawyers (Applicant) Crennan Legal Pty Ltd (First Respondent)
File Number(s):	2017/70619
Publication restriction:	Nil