Townsend and Anor and Shire of Donnybrook/Balingup
[2005] WASAT 276
•12 OCTOBER 2005
TOWNSEND & ANOR and SHIRE OF DONNYBROOK/BALINGUP [2005] WASAT 276
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 276 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:307/2005 | 25 MAY 2005 | |
| Coram: | MR P McNAB (MEMBER) | 12/10/05 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | 1. Application for review dismissed 2. The decision under review is affirmed | ||
| B | |||
| PDF Version |
| Parties: | SHANE TOWNSEND ALANA SHAW SHIRE OF DONNYBROOK/BALINGUP |
Catchwords: | Town planning – Rural-residential zoning – Freestyle motocross motorcycle jumping facility – Discretionary approval – Noise and visual aspects under scrutiny – Characterisation of activity – Whether incidental – "Usual" noise in rural areas – Whether noise of the facility usual – Motocross activity pursued largely as a career – Application dismissed – Words and phrases "freestyle motocross" |
Legislation: | Control of Vehicles (Off-road Areas) Regulations 1979 (WA) Environmental Protection (Noise) Regulations1997 (WA) Road Traffic (Vehicles Standards) Rules 2002 (WA) Shire of Donnybrook – Balingup Town Planning Scheme No 4 Town Planning and Development Act 1928 (WA) Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld) |
Case References: | AAT Case 6793 (1991) 22 ATR 3073 Australian Racing Drivers Club Ltd v Baulkham Hills Shire Council (1981) 2 APA 127 Kaard and City of Nedlands [2005] WASAT 2 Krasenstein and Western Australian Planning Commission [2005] WASAT 201 Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190 McBain v Reyne (1997) 27 MVR 163 Nankiville v Shire of McIvor (1985) 19 APA 156 Saunders and City of Nedlands [2005] WASAT 190 Scott v Numurkah Corporation (1954) 91 CLR 300 Self and Shire of SerpentineJarrahdale [2005] WASAT 140 Shepherd and Anor v Shire of Murray [2004] WATPAT 71 Stuart J Castle Pty Ltd v Shire of Cardinia [2004] VCAT 2158 Wright v Shire of Chittering (2003) 33 SR (WA) 182 Nil |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : TOWNSEND & ANOR and SHIRE OF DONNYBROOK/BALINGUP [2005] WASAT 276 MEMBER : MR P McNAB (MEMBER) HEARD : 25 MAY 2005 DELIVERED : 12 OCTOBER 2005 FILE NO/S : DR 307 of 2005 BETWEEN : SHANE TOWNSEND
- ALANA SHAW
Applicant
AND
SHIRE OF DONNYBROOK/BALINGUP
Respondent
Catchwords:
Town planning – Rural-residential zoning – Freestyle motocross motorcycle jumping facility – Discretionary approval – Noise and visual aspects under scrutiny – Characterisation of activity – Whether incidental – "Usual" noise in rural areas – Whether noise of the facility usual – Motocross activity pursued largely as a career – Application dismissed – Words and phrases "freestyle motocross"
(Page 2)
Legislation:
Control of Vehicles (Off-road Areas) Regulations 1979 (WA)
Environmental Protection (Noise) Regulations1997 (WA)
Road Traffic (Vehicles Standards) Rules 2002 (WA)
Shire of Donnybrook – Balingup Town Planning Scheme No 4
Town Planning and Development Act 1928 (WA)
Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld)
Result:
1. Application for review dismissed
2. The decision under review is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr S Bain
Respondent : Mr R Quinn
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
AAT Case 6793 (1991) 22 ATR 3073
Australian Racing Drivers Club Ltd v Baulkham Hills Shire Council (1981) 2 APA 127
Kaard and City of Nedlands [2005] WASAT 2
Krasenstein and Western Australian Planning Commission [2005] WASAT 201
Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7
Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28
Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190
McBain v Reyne (1997) 27 MVR 163
(Page 3)
Nankiville v Shire of McIvor (1985) 19 APA 156
Saunders and City of Nedlands [2005] WASAT 190
Scott v Numurkah Corporation (1954) 91 CLR 300
Self and Shire of SerpentineJarrahdale [2005] WASAT 140
Shepherd and Anor v Shire of Murray [2004] WATPAT 71
Stuart J Castle Pty Ltd v Shire of Cardinia [2004] VCAT 2158
Wright v Shire of Chittering (2003) 33 SR (WA) 182
Case(s) also cited:
Nil
(Page 4)
Summary of the Tribunal's decision
1 Shane Townsend applied to the Tribunal for a review of the Shire's decision not to permit him to operate a motorcycle jump facility.
2 Essentially, the Tribunal found that Mr Townsend's motorcycle activity went beyond that of a hobby, and produced noise from a specialised facility that went beyond that reasonably contemplated by the planning framework for this rural-residential area.
3 His application for review was therefore dismissed.
Introduction
4 Shane Townsend (the applicant) is the owner and operator of a Honda motocross-type motorcycle. He is the co-owner with his partner, Ms Shaw, of land at Lot 138 Howlett Ramble, Donnybrook. The land comprises some 2 hectares. The land is surrounded by approximately 50 rural residential lots. It is a few minutes drive from the heart of Donnybrook.
5 Mr Townsend had sought approval from the respondent Shire of Donnybrook-Balingup (the Shire) for the construction of a "motor cycle ramp to be erected on the [subject land]", characterised also as a "motor cycle practice facility" or "motorcycle jump facility", consisting of two fixed earth mounds (that is, landing ramps) and a moveable run-up steel ramp. The mounds are proposed to be approximately 5 metres wide and 3.5 metres high. They would run roughly west to east replacing some "old" jumps running north to south (as shown on Mr Townsend's sketch plan submitted to the Shire).
6 Mr Townsend's is an enthusiastic jump rider, a proponent of what is sometimes known as "freestyle" riding. This activity appears to consist mainly of riding a motocross motorcycle at substantial speed over either man-made or natural gaps. Cf the definition for this activity that appears in G Martin and G Mullins, Motor Vehicle Law (Qld) at [14255] reproduced from the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld), (emphasis added):
" '[F]reestyle motocross' means a competition to compare competitors' skills, or an event to demonstrate a rider's skills, in performing motorbike acrobaticson a motorbike that has been ridden off a ramp."
(Page 5)
7 See also, AAT Case 6793 (1991) 22 ATR 3073 at [14]–[19] where the Commonwealth Administrative Appeals Tribunal discusses in detail "the principal branches" of the "sport" of competitive motorcycling.
8 The motorcycle practice Mr Townsend engages in produces noise in the form of his motorcycle doing the jump circuit and, in particular, in relation to the run-ups on that circuit. He first used this circuit for about 10 months until October 2004, but has not ridden there since then.
9 The noise produced by his training has upset one close neighbour and as result of this and for related reasons, just before Christmas in 2004, the Shire refused planning consent on the basis that "[t]he proposed development was inconsistent with their [town planning scheme]", to which further reference will be made below.
10 Mr Townsend sought a review of this decision in this Tribunal in January 2005.
The planning framework
11 Mr Bain, for the applicant, first argued as follows (emphasis added):
"The activity of riding a motor cycle is considered to be a normal activity associated with a rural or rural-residential property. The use is incidental to the predominant use of [a] 'Dwelling House' or 'Single House' [in The Shire of Donnybrook-Balingup Town Planning Scheme No 4 (TPS 4)]. The use would be similar to riding a push bike [sic] on a residential property. Such an activity would not be determined to be a separate use class."
12 The argument was developed or extended to suggest that the riding of motorcycles included jumping involving such bikes. Mr Bain submitted:
"One of the issues raised during the Hearing concerning the riding of motorcycles was whether the activity of 'jumping' falls under the broad definition of 'riding'. It is important to consider this in the context that the bike involved is an off-road bike. The bike is specifically designed for riding and jumping. The bike has tyres and suspension to cater for such activities. The motorcycle ridden by Mr Townsend is a Honda CR250 and is standard from the factory … The [user] Guide [for the bike] shows that jumping/landing is a standard feature of the
(Page 6)
- motorcycle. … [E]xtracts from the brochure for an off road motorcycle, [show this] as a feature of the bike."
13 Thus, the argument went that it was not necessary to obtain planning consent.
14 With respect to Mr Bain, the Tribunal does not agree with this argument. TPS 4 defines "development" to mean "the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be of any building, excavation, filling or other works on any land": see the definition in Schedule No 1. Clause 6.1.1 requires "planning consent" where a person commences or carries out development or commences or changes the use of any land.
15 In Stuart J Castle Pty Ltd v Shire of Cardinia [2004] VCAT 2158 planning approval was required for "an outdoor recreation facility specifically a motorcycle training track" where "the intent was to provide for a training facility for the son of the owner of the land who [was] pursuing a professional career in motor-cross riding". Unlike the case here (see below), the land there "was contained within the Rural Zone" and the need for approval for the facility was specifically dealt with in the Victorian planning instrument. Nevertheless, that case indicates that such use will be far from incidental.
16 It is clear that planning consent is required for the applicant's motor cycle jump facility as it a relevant "use or development" of the land regulated by TPS 4.
17 Mr Bain's first argument having not succeeded, it then became common ground that the applicant's proposal required the respondent's discretionary planning consent under the local planning instrument (that is, TPS 4): see both cl 6.7.2(c) ("… or for such other use as the Council may approve pursuant to this Scheme") and cl 6.1.1, referred to above.
18 The subject land is zoned rural residential and thus, according to cl 3.4.1(a) of TPS 4, has been selected for closer subdivision "to provide for such uses as hobby farms, horse breeding, rural-residential retreats and also to make provision for retention of the rural landscape and amenity in a manner consistent with the orderly and proper planning of such areas". Further, development is controlled by the Shire in accordance with the following "major objective": "[T]o ensure … that the landscape is retained as much as possible in its natural form, or improved … " (cl 6.7.1.). Land use will not be permitted for a purpose that would "detract from the
(Page 7)
- rural/residential amenity of adjoining lots", or that would "detract from the rural character of the area generally" (cl 6.7.2).
The assessment of the proposal by the respondent
19 The December 2004 proposal was assessed – and found wanting – by the respondent as follows.
20 First, the physical structure was described as two earth mounds (that is, motorcycle ramps) and moveable steel ramps (for access to the mounds). The mounds were described "as 3.4 metres high and covered in clay to prevent dust". The "facility" was "for a single rider only and [was] to be used by the proponent and not for public use". The proposed use was to be limited to 2.5 hours per day between 10 am and 2 pm, Monday to Saturday and 1 hour between 10 am to 2 pm on Sundays.
21 Secondly, the respondent's officers contended that the development proposal most closely resembled the town planning use concept recognised by the planning category or label "recreation – private".
22 Such a use is not expressly contemplated in or regulated by TPS 4. As has been mentioned, it is common ground that planning approval for such an activity or use (however categorised) is discretionary, and is to be assessed in light of the objectives and purposes of the particular zone (ie, rural residential): see cl 3.2.5 of TPS 4, and see above.
23 Thirdly, the proposal was specifically judged by reference to two main criteria: its visual and noise impact on amenity. (By reason of the findings of the Tribunal set out below, it will be only necessary to focus on the possible noise impact of the proposal.)
Conduct of the review
24 The Tribunal travelled to Donnybrook in April and took evidence; visited and inspected (with the parties) the subject land, the objecting neighbour's property, and the surrounding area. A directions hearing was held in late May and the Tribunal received written submissions filed later in Perth, the last submission received in early June.
Visual impact of earth mounds
25 At this point it is convenient to mention that the earth mounds are, in the Tribunal's view, not inconsistent in character with the general landscape in the immediate vicinity of the subject land. The respondent's position was that the "[e]xisting earth mounds in the area are generally
(Page 8)
- incidental to residential development therefore [sic] not consistent with the surrounding landscape in the area". They were also "not consistent with existing topography".
26 With respect, the Tribunal does not agree with this assessment. The Tribunal is satisfied from the photographs supplied and the inspection carried out that there are a number of natural and man-made mounds and retaining structures, earthworks, and similar types of structures, which make the mounds generally not out of place in the subject locality.
27 The visual impact of the steel ramps, on the other hand, is tied up with the central question of the characterisation of the development or use of the land and, if it arises, the discretionary aspects, including the imposition of conditions, which follow from such characterisation.
Conditions
28 The respondent's view on the conditions that ought to be imposed, if the applicant were otherwise successful, was as follows (so far as is material):
"4. Prior to the use [of] lot 138 Howlett Ramble Donnybrook as a 'Motor Cycle Jump Facility' the proponent submit a noise management plan compiled by a suitably qualified acoustic engineer to the Shire of Donnybrook/Balingup for approval by the Chief Executive Officer demonstrating that the Motor Cycle Jump Facility at lot 138 Howlett Ramble Donnybrook meets [the standards in the] Environmental Protection (Noise) Regulations 1997. No use as a 'Motor Cycle Jump Facility' shall occur until the submitted noise management plan has been approved by the Chief Executive Officer.
5. Prior to the use [of] lot 138 Howlett Ramble Donnybrook as a 'Motor Cycle Jump Facility' the proponent submit a landscaping plan compiled by a suitably [sic] professional for approval of the Chief Executive Officer demonstrating the 'Motor Cycle Jump Facility' will not visually impact upon the surrounding area. Landscaping areas shall be established prior to the use of the site to the satisfaction of the Chief Executive Officer.
(Page 9)
- 6. The Motor Cycle Jump Facility at lot 138 Howlett Ramble Donnybrook shall only be used between the hours of 10 am and Noon, Mondays to Fridays with no use whatsoever on Saturdays and Sundays.
7. The Motor Cycle Jump Facility at lot 138 Howlett Ramble Donnybrook shall only be used by the applicant and no other use of the facility by other persons whatsoever is permitted."
29 The applicant's view is that these conditions are "open ended, non-specific and onerous". In the alternative, the applicant proposes conditions dealing with noise compliance by reference to the Environmental Protection (Noise) Regulations1997 (WA); use to be restricted to a maximum of three hours a day (only on weekdays) between 10 am to 5 pm; certain vegetation cover; clay cover of the ramps; and a restriction to personal use by the applicant.
30 The question of the conditions to be imposed, if any, (and if the issue is reached) will be returned to below.
The applicant's evidence
31 The applicant told the Tribunal that he had ridden motorcycles since a very early age. He was now a proficient rider who had both received awards, and exhibited and travelled overseas in connection therewith, once apparently for some months. He claimed that, although he had sponsors, he did not receive any actual income – in a direct commercial sense – from riding. Sponsorship provided him with travel in return for promoting, say, a brand of specialised clothing (a clothing brand "Anything Evil" was specifically mentioned).
32 He said: "The use of the jumps at my property is purely for my own recreation." He described it as "a hobby".
33 The hours that he had initially requested approval for (that is, 2.5 hours Monday to Saturday, and one hour on Sundays) were, in effect, somewhat notional because of considerations such as the weather, the physical strain of continuous riding, his absences at riding events, and his absences due to his ordinary part-time or casual ("occasional") work as a boilermaker.
34 Mr Townsend was asked whether there was any practicable alternative site for his practice. He replied that there was not.
(Page 10)
35 Mr Townsend told of his planting of "over 400 native fast growing trees and shrubs" on his property. The two mounds of dirt on his property were clay capped to prevent dust.
36 He pointed to the strong community support that he had received in a petition, and the many letters from his neighbours (which the Tribunal received into evidence), many of whom resided on Howlett Ramble. (The Tribunal notes that, taking such material at its face value, and notwithstanding the pro forma nature of much of the material, it nevertheless indicates some degree of local support for the applicant. The respondent says that "[t]wo other neighbours have made written complaints regarding the proposal", but no evidence was received or led from these possible witnesses.)
37 Mr Townsend said that only 14 metres (that is, on the run up to the ramp) of a 130 metre circular course would require substantial "revving [up]" of his motorcycle.
38 He had tried to negotiate with his neighbour, Dr Blake, but this had been unsuccessful.
Ms Shaw's evidence
39 Ms Shaw supported Mr Townsend's evidence, saying that she heard "other motorbikes in the area at all sorts of hours". She added that "[t]here are tractors and farm machinery that make more noise than any motorbike … ".
The neighbour's evidence
40 The Tribunal declined to permit a neighbour, Dr Kevin Blake, to make submissions on the review under s 62 of the Town Planning and Development Act 1928 (WA). Cf the differing approaches of the Tribunal to this question in Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 at [35]; Kaard and City of Nedlands [2005] WASAT 2 at [50]; Krasenstein and Western Australian Planning Commission [2005] WASAT 201 at [31]. The application was opposed by Mr Bain.
41 The Tribunal reached its decision principally on the basis that Dr Blake could be called by the respondent at the hearing (and the Tribunal subsequently gave leave for that course, over the objection of Mr Bain), as his proposed evidence was both material and well-known to the parties already. (Dr Blake made his application at the hearing in person, but his attendance at the hearing had been foreshadowed to the parties.)
(Page 11)
42 His evidence was as follows.
43 Dr Blake's home directly overlooks the subject land (on a slight rise, looking down from the north), and is approximately 200 metres from the motorcycle circuit. He purchased his house two years ago. Dr Blake first became concerned when the present circuit was built in October 2004. He was concerned about the visual impact, the noise, the dust emanating from the circuit and the possibility that the area's amenity would be eroded by spectators attending the subject land. He viewed the activities of the applicant as more akin to stunt riding and beyond the scale of mere personal use. He said that if he (that is, Dr Blake) "stands at [his] kitchen window" he can see "two large mounds and ramps". Because of the topography of the land, and with the subject land overlooked by Dr Blake's land, it was a situation akin to being "in a valley or amphitheatre".
44 Dr Blake said that he was not on the property all of the time but when he had a night shift – he worked in a hospital – and had to sleep during the day, his "bedroom [was only] 250 yards from [the] site".
45 Dr Blake was asked how he would describe the noise. He said that it was a "constant drone" not necessarily excessively loud, but a constant "round and round" sound "typically [lasting a] couple of hours". On one afternoon it had lasted "five [to] six hours".
46 As has been indicated above, the major issue before the Tribunal is noise, and the Tribunal will focus on Dr Blake's, and other evidence in that regard.
47 Finally, it should be mentioned that there were some differences between the applicant and Dr Blake in relation to what Dr Blake had observed on the subject property. However, it is unnecessary to resolve such differences given the substantial common ground between the parties as to Mr Townsend's relevant activities on the subject land.
The applicant's expert opinion evidence
48 Mr Bain's expert opinion (and subsequent central argument on behalf of his client) was that the rural nature of the subject land and the activities that would ordinarily be carried on, on such land (for example; hobby farms, horse breeding and rural-residential retreats), were not inconsistent with motorcycle use, which use "would be a reasonable expectation within this Zone" as motorcycles "are commonly used in rural areas".
(Page 12)
49 Mr Bain drew attention to the Environmental Protection (Noise) Regulations 1997 (WA) which prescribe general limits during certain hours for "[n]oise sensitive premises at locations within 15 metres of [certain buildings]". See reg 8 ("Assigned levels").
50 He submitted that there was no evidence to suggest that these limits had been breached. As has been already referred to, Mr Bain's client was prepared to accept a condition limiting noise levels to these specific levels.
Submissions
51 Mr Quinn, for the respondent, argued that the application was for a particular land use that was not expressly dealt with by TPS 4 or, for that matter, in any comparable town planning scheme in WA.
52 In his view, any discretion to be exercised to approve the use ought to focus on the residential aspect of the zoning. He said that "evolving work commitments" would lead to a reasonable expectation that residents would not face "noise pollution" during daylight hours emanating from a "motor cycle jump facility". Other noise from devices such as chainsaws and the like was transient and short term, a form of existing "background noise" which residents "[had] become accustomed to".
53 As appears above, Mr Bain's central argument was to focus on the ambient noise levels already pertaining to rural and rural-residential areas and the existing permissibility of motorcycle riding in rural areas.
Relevant principles
54 The following useful general discussion and observations about the regulation of noise appears in Local Government Planning and Environment NSW, Volume C, at [552,315] - [552,320] (emphasis added):
"What constitutes noise pollution is difficult to ascertain and it is an immense problem which confronts our society. It is impossible to ban all noise, as the activities of society would cease to function. … Noise pollution means the emission of offensive noise [under NSW law]. Offensive noise means noise that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances, is harmful to or likely to be harmful to, or interferes unreasonably or is likely to interfere unreasonably, with the comfort or repose of someone outside the premises from which it is emitted. … The definition of offensive noise is of particular importance in the
(Page 13)
- control of neighbourhood noise. 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, as Cripps J warned in Dunstan v State Pollution Control Commission (LEC [NSW], Cripps J, No 40056/83, 17 July 1985, unreported) this factor is not conclusive (at 12):
'In my opinion, and with the greatest of respect to others who do not share it, an "offensive noise" does not become inoffensive because it is emitted from industrial land … that circumstance [the zoning of the land] cannot deem an "offensive noise" to be an inoffensive noise.'
Offensive noise is not capable of quantification and will depend on the facts of each case. In Scott v Numurkah Corporation (1954) 91 CLR 300 at 316 – 317, Fullagar J adverted to the subjective quantification of noise, when addressing the possible consequences which noise from a variety of bands could have on the patrons of a cinema, in the following terms:
'The strains of a lilting waltz may make no impression on the hero or villain of a raucous and boisterous drama, whereas the pathos of a heroine with a voice like Cordelia's may be murdered by an unholy conspiracy of saxophone and drum. And between these extremes lies a great variety of possibilities.'
Accordingly, it has been aptly said that 'one man's noise is another man's pleasure': Gifford, 1980, p 408."
55 Similar concepts of noise pollution and unreasonable noise are dealt with in Western Australia under the Environmental Protection (Noise) Regulations 1997 (WA).
56 The following observation from the Environment Resources and Development Court of South Australia is a useful reminder and a reference point for general discussion about rural amenity and noise (emphasis added):
"The list of developments [the relevant planning instrument there under consideration] has designated as complying confirms … that the amenity to be expected in the zone might
(Page 14)
- not be free of nuisance of one form or another. Rural areas generate a variety of 'externalities' – mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment. However, [counsel] quite rightly said that the circumstances of the zone should be taken into accountwhen considering the amenity that might be reasonably expected." Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 at [21] cited by this Tribunal in Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140 at [62].
57 See also to similar effect, Australian Racing Drivers Club Ltd v Baulkham Hills Shire Council (1981) 2 APA 127 at 130: "People … who choose to live beyond the urban fringe should do so in the knowledge that they may have to live within a less pleasant environment than they may have originally expected."
58 On the other hand, there are the views of the former Tribunal in WA when it considered the impact of noise associated with certain mechanical operations (not involving motorcycles) in rural areas in Wright v Shire of Chittering (2003) 33 SR (WA) 182 and Shepherd and Anor v Shire of Murray [2004] WATPAT 71. In the latter case, the Tribunal noted, at [10], that "[t]here was no expert evidence called to establish the level of noise". In the former case the Tribunal said, at 186 (emphasis added):
"The [subject land] is part of an area set aside in the Scheme (Sch 5) for uses that are 'rural-residential' in nature, or compatible with those uses. The Scheme aims to ensure that no development detracts from the existing rural character and amenity of the area. Notwithstanding the appellant's willingness to plant further trees to screen the development, the use has the potential to be viewed from some parts of the estate. [The proposal for the parking of heavy vehicles and machines] has the potential to add significantly to the level of noise that would normally be expected in a quiet rural-residential environment, and would add unnecessary heavy vehicle movement. By its very nature the use is incompatible with the intent of the scheme for this area, and would 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."
(Page 15)
59 So too, where the former Victorian appeals Board in Nankiville v Shire of McIvor (1985) 19 APA 156 denied planning permission for a motor racing track, saying (at 161):
"The nature of rural-residential uses is such that people seek to settle in areas where such a use is carried on so that they may enjoy relatively quiet and peaceful surroundings. The question then is, is the use intended to be made of the appeal site compatible with such uses? The answer in our view must be no."
60 The Tribunal turns to the current situation in Victoria.
61 According to Planning and Environment Victoria, LexisNexis Online, at [32,145], under Victorian law, "new off road racing motor cycle[s] designed or constructed solely for use in one of the categories described in the table below must not emit noise exceeding the noise level applying to that category [according to certain standards of measurement]" (emphasis added):
"Category of Use Noise Level [dB(A)]
Motocross 102
Speedway (All Track Racing) 102 [corrected]
Trial 94
Any Other Competition Event 96"
62 For the WA equivalent (but without specific mention of motocross bikes), see the Road Traffic (Vehicle Standards) Rules 2002 (WA), r 144 also the Control of Vehicles (Off-road Areas) Regulations 1979 (WA), reg 25). All of these standards generally permit greater sound levels in respect of motorcycles, in comparison to other motor vehicles.
63 In the Victorian case already referred to (Stuart J Castle Pty Ltd v Shire of Cardinia (supra)), the Tribunal allowed the appeal and permitted motorcycle racing applying the following reasoning (emphasis added):
"Amenity Issues
33 Local residents had a number of amenity concerns specifically related to noise but also with dust and traffic. The applicant intends to suppress dust on site by use of
(Page 16)
- water sprays. The Tribunal considers that to be a reasonable means of control which should be included in the conditions on any permit that might issue. The Tribunal notes in this regard that the roads adjoining the subject site are dirt roads and that farmers are often involved in agricultural activities which result in the raising of dust. The Tribunal however finds it appropriate that measures be in place to ensure no dust nuisance arises from the use of the track.
- 34 The issue with respect to noise needs to be put into the context of the operation of the site on weekdays for three hours at a time with riding only occurring for around half of those hours.
35 The applicant called [expert] evidence from Mr Goddard of Watson Moss Growcott with respect to the noise impact of the proposal. Mr Goddard carried out a number of investigations into noise from four stroke bikes of the type intended to be used here. It was his contention that the four stroke bikes produced a less harsh noise than two stroke motorcycles used for racing in the past. Further the bikes will be fitted with practice mufflers at all times.
36 Mr Goddard carried out two sets of measurements, the first measurements were made at another location when four bikes were operating. The results showed a noise range [that] would translate to a dB(A) level of 44 to 49 at 750 to 800 m. This is the noise level that is exceeded for 10% of the time for four bikes operating together. The measurements therefore represent the expected maximum noise impact at the nearest dwelling to the north of the subject land. The second set of measurements were taken on the site with a single four stroke vehicle operating. This vehicle was fitted with a training muffler, wind direction at that time was to the south. Mr Goddard detected no audible noise at the potentially most affected dwelling to the north, however there was measurable noise at a similar distance to the south of 42 to 44 dB(A) … The [maximum value] translates to 50 dB(A) with four motorcycles operating and would be indicative of the noise level to be heard at
(Page 17)
- the dwelling to the north under unfavourable climatic conditions.
- 37 The above noise levels lie within the [Victorian] EPA's discussion paper recommendations for motorbike noise of less than 50 dB(A) being within the acceptable range. [But cf the prescribed limits for Victoria referred to above.]
38 It was pointed out by Mr Goddard that the noise of the motorcycles is similar to the noise from a farm bike and of the same order as tractor noise making it unlikely that there will be any impact on cattle as a consequence. It was his evidence that the level of noise associated with the aircraft facility which is uncontrolled would travel much further and be much more penetrating than the noise from the bikes and that cattle in the area obviously combated this.
39 The [local government] in their draft conditions suggested that a 2 m high bund to the north of the motorcycle track should be required. The Tribunal is of the view that the this [sic] bund would have a significant additional attenuating impact on the noise receipt at the dwelling to the north. There will be little impact by way of noise to the east given the levee bank located on the opposite side of Wenn Road. The Tribunal finds that the audibility of the activity on site at the most proximate dwelling will be occasional and within reasonable bounds.
40 In conclusion the Tribunal accepts that the proposed use does not advance the policy in the Rural Zone however in the Tribunal's view it does not conflict with it. In the Tribunal's view there are special circumstances relating to this case in that: the permit can be made personal to the operator of the motor cycle track, the level and frequency of use is relatively low, the noise impacts are of an order and quality that are similar to agricultural noise and the land can and will be restored to agricultural use in the future. It is the Tribunal's view in these circumstances that a permit should be granted."
(Page 18)
64 Surprisingly, neither party referred to this case or, for that matter, produced any evidence concerning matters such as the actual measurable noise impact, the likely wind direction or the availability of "training mufflers". It should be noted, however, that the area of the subject land in that Victorian case (21 hectares), and the surrounding rural circumstances (basically non-residential, mainly grazing properties) means that the factual basis of that decision is quite distinguishable from the present case. But for these matters, it seems that the Tribunal there might well have disallowed the appeal.
65 Finally, in the context of a civil claim and the evidence led in the case regarding a motorcycle's noise, Debelle J usefully observed:
"Actual experience of the noise made by the particular cycle in question is more helpful than an assessment based on one's general experience of other cycles. The noise will depend on how the motor cycle is tuned, the condition of the muffler and exhaust system, and other factors. Loudness of noise is admittedly a subjective issue. But a guide is the distance from which the noise can be heard." McBain v Reyne (1997) 27 MVR 163 at 170.
66 As has been mentioned, no such evidence was led by any party.
Findings and discussion of the case
67 Crucial to the resolution of this review, is the proper characterisation of the applicant's activities on the land on the evidence available to the Tribunal. In the Tribunal's view, the applicant is engaged in much more than a hobby. There can be no real doubt that his freestyle motocross activities are a significant, if not a central, part of his life. In fact, they more closely resemble a career, one that is effectively subsidised to some degree by commercial sponsorship, sponsorship that has been generous enough to have taken the applicant overseas for some period of time. He only appears to work part-time or casually; it may be reasonably inferred that such working arrangements are consistent with the pursuit of his freestyle motocross activities. He need not be considered as carrying on a business in order for this characterisation of use to be made.
68 The skill and dedication needed to excel in this sport – which Mr Townsend clearly has – requires regular, substantial and specific training expressed in the use of a special jump facility. That training creates, in turn, a "specialised" noise, and the motorcycle involved is likely to produce significant, although not necessarily offensive or
(Page 19)
- unreasonable noise. However, significant noise can still affect amenity without it being relevantly offensive. It may be inferred here that the use of a training muffler is not a viable option, possibly because it would impair performance and endanger the rider's life. Thus, there is no practical way to ameliorate that noise; none at any rate has been suggested by the applicant.
69 The Tribunal generally accepts the material evidence of Mr Townsend's neighbour Dr Blake. In particular, Dr Blake was careful to complain about the type and quantity of noise he was exposed to; not its loudness per se. Even allowing for his circumstances (such as the location of his property and his shift-work) and his possible subjective sensitivity, and even if he is in the minority as far as his neighbours are concerned, he is entitled to generally expect, like any other owner or resident, to be exposed to no more than the "usual" noise associated with rural-residential living. That is, in the Tribunal's view, the underlying premise of TPS 4: cf Wright v Shire of Chittering (supra) to the same effect.
70 Reflecting the activity that produced it, the noise involved here is not, in the Tribunal's view, comparable to the "usual" but largely transient and intermittent sounds that one might be exposed to in a rural residential area. These would include the noise emanating from "that modern scourge of tranquillity the child trailbike rider" (Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190 at 198 per McPherson J (FC)) and items such as lawn mowers, ride-on mowers, edge-cutters, string-trimmers, brush cutters, "crow guns", chainsaws (and other items of light farm machinery – eg, pumps – and associated vehicles), to name but a few.
71 The applicant bears in effect what this Tribunal has called, in a not unrelated context, the "practical burden of persuading the regulatory authority" (including, on review, this Tribunal) that reasonable expectations as to noise will be or have been protected: cf Saunders and City of Nedlands [2005] WASAT 190 at [38]. Unfortunately for the applicant, that burden has not been discharged here. The question of conditions need not be addressed.
72 For these reasons, the application for review must be dismissed and the decision under review affirmed.
Orders
1. The application for review is dismissed.
(Page 20)
- 2. The decision under review is affirmed.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
5
8
6