Ward v Rockhampton Regional Council - [2014] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ward & Anor v Rockhampton Regional Council & Anor [2014] QPEC 67

PARTIES:

JEFFREY GORDON JAMES WARD and LEANNE MAREE LEVER

(appellants)

v

ROCKHAMPTON REGIONAL COUNCIL

(respondent)

and

R C TOOLE PTY LTD

(co-respondent)

R C TOOLE PTY LTD

(appellant)

v

ROCKHAMPTON REGIONAL COUNCIL

(respondent)

and

JEFFREY GORDON JAMES WARD and LEANNE MAREE LEVER

(co-respondents by election)

FILE NO/S:

205 of 2013 and 4896 of 2012

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18, 19, 20, 21, 24, 25, March, 26, 27 May, 6 June 2014 with further submissions received to 3 July 2014

JUDGE:

Rackemann DCJ

ORDER:

1. Appeal no. 205 of 2013 is allowed and the development application is dismissed.

2. Appeal no. 4896 of 2012 is dismissed on the limited basis that there will be no development approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – application to regularise use for airstrip and associated facilities in the Rural Zone – airstrip proximate to neighbours – submitter appeal against approval – applicant appeal against conditions – whether conflict with the Planning Scheme – whether use would adversely affect livestock – whether use is a major utility as defined – meaning of “navigation aids” – whether it satisfies criteria for consistent use – whether “recreational activity” – whether “community facility” – whether compatible with surrounding Rural Purposes – whether developed to support preferred uses – whether adverse impact on perceptions of amenity – use of expert and non-expert evidence – reasonable expectations – sufficiency of grounds to warrant approval notwithstanding conflict

COUNSEL:

R Litster QC and N Kefford for the appellant in appeal no. 4896 of 2012

B Job for the appellants in appeal no. 205 of 2013

S Fynes-Clinton for the respondent

SOLICITORS:

McCullough Robertson for the appellant in appeal no. 4896 of 2012

Hopgood Ganim for the appellants in appeal no. 205 of 2013

King & Company for the respondent

Table of contents

1.	The appeals	4
2.	The site	5
3.	The neighbours	6
4.	Submissions	7
5.	Decision framework	7
6.	Council’s decision	7
7.	The issues	8
8.	Conflict with the Planning Scheme	9
(a) The DEOs	9
(b) The Rural zone	10
(i) Purpose of the Zone Code	11
(ii) The elements of the Zone Code	13
9.	Amenity	26
(i) Perceptions	26
(ii) Noise	26
10.	Enforceability	44
11.	Need/Benefit	47
12.	Other grounds	52
13.	Consideration	56
14.	Conclusion	57

The appeals

Appeal number 205 of 2013 is a submitter appeal in which Jeffrey Gordon James Ward (Ward) and Leanne Maree Lever (Lever) challenge the decision of the former Rockhampton Regional Council (which is now the responsibility of Livingstone Shire Council) (“Council”) to conditionally approve a development application made by R C Toole Pty Ltd (Toole). The application sought a development permit for the making of a material change of use to facilitate a private airstrip including hangars for six aircraft and an aviation fuel storage and dispensing facility (airstrip). The airstrip is not lit. It would operate in daylight hours only. The airstrip is “private” in the sense of it not being open to the public. It would only be available to those whom the operator permits to use it. The airstrip would be operated in accordance with a management plan and conditions of approval.

Appeal number 4896 of 2012 is an appeal by Toole against some conditions of the Council’s approval. Those conditions may generally be described as intended to restrict the use to a “low key” facility. The Council wants the facility to be for “private use” in the sense of being restricted to use by the owner for his/her purposes and excluding the rental of hangars and the sale of fuel.

The Council’s position is that the use of the airstrip for Toole’s purposes does not exclude occasional bona fide social visits by personal friends who also happen to be pilots. It does not exclude a personal friend who is visiting the Yeppoon locality, and who happens to be a pilot, from landing at the airstrip and leaving his or her plane parked there for the duration of the visit. To the extent that any person who has some genuine business to conduct with Toole travels by light plane, that use is also not excluded under the position advocated by the Council. It is opposed, however, to the Toole proposal which involves other aeroplane operators being able to hangar their planes on the subject site, in a lockup facility, coming and going as they please for their own purposes, which have nothing to do with any use of the land by the owner, or for the purposes of the owner, and nothing to do with any personal, social or business interaction with the owner.

Mrs Lever and Mr Ward are wholly opposed to the airstrip.

The site

The subject site is:

· situated at 360 Keppel Sands Road, Tungamull, which sits east of Rockhampton and west of Keppel Sands;

· an irregularly shaped lot of approximately 210 hectares in area;

· generally flat to gently sloping;

· located in a valley of rural land featuring predominantly grazing activities;

· adjacent to Lot 10 on RP898684, which is improved with the Toole residence and an adjacent existing private airstrip known as the Mill Iron airstrip (the lawfulness of which was not in issue) which Mr Toole has used for some years. The Tungamull airstrip, the subject of the development application, is to be in addition to, rather than in substitution, for the Mill Iron airstrip.

· improved with the following facilities which were established without the necessary approval:

(a) two grassed intersecting runways, delineated by cone markers and generally constructed on an east-west alignment and described as:

(i) runway 09/27, being approximately 900 metres long and 45 metres wide;

(ii) runway 07/25, being approximately 600 metres long and 40 metres wide.

(b) two wind socks;

(c) four secure, fully enclosed, cyclone-rated aircraft hangars complete with concrete floors, phone, power and lighting and able to accommodate up to six aircraft;

(d) a facility for storing and dispensing avgas to aircraft using the airstrip.

The application was made consequently upon enforcement proceedings brought by the Council. Those enforcement proceedings were brought notwithstanding that the Council had acquiesced in the development of the airstrip and had informed Toole that no approval was required on the basis that the operation of a “low scale private airstrip and hangar on a rural property is exempt from the planning and development requirements.”[1] An application for interim enforcement orders was refused[2] in circumstances where undertakings were given to limit the operation to a very constrained use by Mr Toole himself for no more than three flights per week, pending determination of the proceeding. That was later amended to allow use by another person[3] and for a total of six flights (i.e. six take offs and 6 landings) per week.[4]
[1]see exhibit 23 annexure 3.
[2]Rockhampton Regional Council v R.C. Toole Pty Ltd & Anor [2012] QPELR 87.
[3]Mr Bate.
[4]Exhibit 88.

The applicant gains no advantage, in relation to an assessment of the application, from that fact that the facilities have been developed.

The neighbours

The airstrip sits in relatively close proximity to four residences being:[5]
[5]Exhibit 9 figure 10.

1. the Lever residence which overlooks the airstrip (which runs generally parallel to their southern boundary) from a distance of just 292 metres to the north;

2. the Miller residence, to the southeast, which is 485 metres from the airstrip and 458 metres from the hangars;

3. the Ward residence which is 700 metres east of the hangars and 785 metres from the airstrip, from which it is generally due east;

4. the Collins’ residence, which is 520 metres to the north of the airstrip and 561 metres from the hangars.

The respective occupiers of the Ward, Lever and Miller residences have, in the past, found the use of the airstrip to be annoying. Mr Collins is a business associate of Toole and a supporter. The Toole residence is further removed (to the north) from the airstrip than each of those residences which will be most exposed to impacts from its operation.

Submissions

The development application was publicly notified. It attracted some 208 submissions of which only 25 were supportive of the proposal. The number of submissions was, no doubt, affected by the efforts of the Levers and Wards to encourage or at least facilitate submissions. A number came from persons who live in places remote from the site and included grounds which could not sensibly apply to them. Ultimately it is the substance of the submissions rather than their number which is of most significance. The relevant issues of substance are dealt with below.

Decision framework

The application was made under the Sustainable Planning Act 2009 (SPA). The appeal is by way of a hearing anew.[6] The court’s decision must not conflict with a relevant instrument, unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.[7] Here, the relevant instrument is the Livingstone Shire Planning Scheme 2005 (the Planning Scheme).
[6]s 495.
[7]s 326(1)(b).

Toole, as the applicant for development approval, bears the onus of establishing that the submitter appeal ought be dismissed.[8]
[8]s 493(2).

Council’s decision

The Council’s conditional approval was on the basis that there were sufficient grounds to approve the application notwithstanding conflict with the Planning Scheme. The grounds were specified in the Decision Notice[9] as follows:
[9]Exhibit 2 pages 253-254.

“1) The proposal is for an undefined use under the Livingstone Shire Planning Scheme 2005, being a Private Airstrip and Private Airstrip Storage. Although this use is not considered a preferred use within the Rural Zone, it is considered that the use can be conditioned to operate in a manner that does not compromise the Overall Outcomes sought for the Zone. In addition, the nature of the use is considered to be most appropriately located within the Rural Zone as the proposal is for a use which in part supports the cattle grazing and breeding use on the site, being a preferred use within the zone.

2) The provision of operational restrictions via conditions of approval, specifically, for a maximum number of aircraft movements, the installation of a noise monitoring station and a limited register of users, will limit the adverse impacts caused by the development on the rural amenity of the locality. Such operational restrictions will provide increased control over the operations of the use.”

The issues

The Ward and Lever grounds of appeal may be summarised generally as follows:

(a) the proposal results in an unacceptable amenity impacts to surrounding areas;

(b) the proposal is inconsistent with reasonable expectations;

(c) a decision to approve the proposal would conflict with the Planning Scheme; and

(d) there are insufficient grounds to justify approval including that there is no community or public need for the proposal.

The Council’s position is that, even with the limitations imposed by its conditions, there remains an identifiable conflict with the Planning Scheme but that, with its proposed conditions:

(a) the conflict may fairly be assessed as minor in a factual sense, given that a private airstrip for personal use is neither unusual nor unexpected in a rural area and not something which cuts across the planning intent for the Rural Zone in any strong or fundamental way;

(b) at that level of conflict, the existence of the airstrip as one available for use in emergencies is a substantive matter of public interest sufficient to support approval despite the conflict;

(c) to the extent that a low level amenity impact is relevant to the process of weighing up conflict and grounds (without being a ground as such), the evidence before the court indicates that the operation of an airstrip for personal purposes, as has been done for some years from Iron Mill, does not cause amenity impacts which are intrusive to a material degree from the perspective of residents of the locality.

It was contended for Toole that:

· the proposal is within reasonable expectations and would not unduly impact upon amenity;

· there is no conflict with the Planning Scheme, but

· there are sufficient grounds to warrant approval of the application notwithstanding any conflict which might be found to exist.

Conflict with the Planning Scheme

The issues fall for consideration in the context of the relevant provisions of the planning scheme. That relevantly includes both:

1. Shire wide outcomes, in Part 2 of the Planning Scheme; and

2. Development assessment for categories and provisions for zones and special management areas, in Part 3 of the Planning Scheme.

(a) The DEOs

The Shire wide outcomes are expressed as Desired Environmental Outcomes (DEOs). The DEOs are said to be based on ecological sustainability and are the basis for the measures in the Planning Scheme[10] (discussed later). It is stated that ecological sustainability for the Shire will be advanced if each of the DEOs are realised “to the extent practicable having regard to all other DEOs.”[11]
[10]s 2.1(1).
[11]s 2.1(2).

The DEOs to which attention was drawn in the course of the evidence and submissions were the following:[12]
[12]s 2.2(1).

“(e)Development provides a benefit to and satisfies an economic demand of residents of the area in which it is located;
(j)Development occurs in an area:
(i)which is intended for the development as identified by the outcomes for zoned land; and
(ii)in which services of the facilities required in respect of the development are existing, planned or provided by the development.

(k) Development does not adversely affect:
(i) the community’s health safety; or
(ii)the amenity enjoyed by people in different areas of the Shire.

(l)Development reflects the community’s reasonable expectations and harmonises with the natural environment and does not prejudice the Shire’s existing scenic amenity particularly along the Capricorn coast.”

The need/benefit issue (subparagraph (e)) and amenity issue (subparagraph (k)(ii)) are discussed later. Whether the proposal represents intended development (subparagraph (j)(i)) and/or development within reasonable expectations (subparagraph (l)) is also discussed later. There is no difficulty with required services and facilities (subparagraph (j)(ii)). Whilst safety (subparagraph (k)(i)) was initially in issue, the submitter appellants ultimately accepted[13] that, in light of the work of Mr Tonkin (an expert engaged by Toole), there is no longer any matter of safety which calls for refusal.
[13]Submissions of the appellants/co-respondents Ward and Lever paragraph 27.

The DEOs are Shire-wide outcomes. Although not irrelevant to assessment of an individual application, they do not provide very specific guidance in relation to how the DEOs are to be achieved in the different areas across the Shire. Further, the subject application, even if at variance to some of the DEOs, will not materially affect their achievement on a shire wide basis. It has already been observed that the DEOs are the basis for the more detailed measures in the Planning Scheme[14], including the zoning provisions. It is the latter provisions which provide greater guidance.
[14]See s 2.1(1).

(b) The Rural Zone

The subject site, and other land in the locality, falls within the Rural Zone. It is common ground that the proposal is impact assessable development within the Rural Zone. The Planning Scheme includes a Rural Zone Code. That code includes provisions in relation to:
(i)         the purpose of the Code, which includes Overall Outcomes; and
(ii)        the elements, which include Specific Outcomes.
(i)     Purpose of the Zone Code

The stated purpose of the Zone Code is the achievement of the overall outcomes sought for the Zone. Those overall outcomes relevantly include the following:

“(i)Land used for rural activities such as grazing, agriculture and horticulture is protected from development, which in Council’s opinion would significantly infringe on the landscape setting and rural amenity of the Shire;
…

(iv) Agriculture, including both extensive and intensive activities is protected from land use conflicts resulting from the location of non-rural activities on rural land;”

I accept that grassed airstrips and associated facilities have the potential to be located within the Rural zone in a way which does not, in fact, unduly infringe upon landscape setting and rural amenity (sub-paragraph (i)). The impact of the subject proposal in this locality is discussed later.

Insofar as the protection of agricultural land from land use conflicts (sub-paragraph iv) is concerned, the submitters pointed to the potential for aircraft movements adversely to affect livestock. Mr Miller gave evidence of his experience of noise impacts from planes affecting his goats, which he subsequently sold as a result.[15] Evidence of disturbance to livestock was also given by both Ms Lever and Mr Ward.[16]
[15]T4-43/1-16.
[16]Exhibits 28 and 29.

Dr Thorne (the acoustic expert retained by the Council) observed that goats on the Ward property that were present prior to audible aircraft noise disappeared when the aircraft flew the circuit on 2 September 2013.[17] Ms Richardson (the acoustic expert retained by the submitters) considered, based on anecdotal evidence, that there was potential for aircraft noise impacts on livestock when the animals were penned as opposed to in larger fields that provide space to run freely when startled.[18]
[17]Exhibit 11 para 58.
[18]Exhibit 11 para 63.

In order to assess these concerns, Toole retained Dr Carol Petherick, a senior research fellow at the University of Queensland who is an expert in the study of animal behaviour (an ethologist). She has been researching such behaviour for almost 40 years, with particular focus on livestock, albeit not specifically with goats. Her report[19] canvassed the available research, had regard to the reports and advice of other experts in the appeal and also considered the claims of the residents. Her evidence is to the effect that there should be minimal disturbance and stress, with habituation to overflights. She was not required for cross-examination.
[19]Exhibit 14.

It should be noted that the anecdotal evidence was not all one way. As it was pointed out in the submissions for Toole:

“Dr Petherick’s opinion accords with:
(a)Mr Russell Brown’s observation that livestock (including goats, cattle and sheep) showed no discernible reaction to the noise from Mr Toole’s aircraft when he completed a fixed wing aircraft circuit to enable noise measurements to be jointly undertaken[20] nor was there any reaction of sheep and cattle during the transit of the helicopter (unrelated to the airstrip) even though it was relatively loud and of quite long duration[21]; and
(b)the observations of Mr Toole – he has seen over 200 aircraft movements at the Tungamull airstrip, has never seen any of his or the Lever stock become frightened or ‘spooked’ as a result of the aircraft movement[22].”

[20]Exhibit 11 p 9 paras 57-59.

[21]Exhibit 11 p 10 para 60.

[22]Exhibit 23 page 20, paras 122-126

As was pointed out for Toole, the evidence of the lay witnesses related to their observation with respect to the previous operations at Tungamull airstrip. These operations of the airstrip is proposed to be subject to a proposed management plan which formed part of the subject application and which provides that aircraft do not fly within 800 feet (250 metres) of nearby residences, a restriction which has only applied since an undertaking to that effect was given in the context of the enforcement proceedings.

Whilst there is potential for some effects (and some have been experienced in the past) the evidence of Dr Petherick satisfies me that the potential for long-term significant adverse impact is not such as to raise a land use conflict of any great significance.

(ii) The elements of the Zone Code

The “elements” part of the Rural Zone Code contains provisions for land use and development. In that regard, it provides specific outcomes for, relevantly:

“(i)        Consistent uses
(ii)         Inconsistent uses
…
(iv)        Character and Amenity”

The specific outcomes for “consistent uses” are relevantly as follows:

“O1(a) Only uses consistent with the overall outcomes for, and preferred for development within the Rural zone are established in the zone.
(b) The following uses and use classes are consistent with, and preferred within the Rural zone:
(i) All Rural Purposes.

O2 Provided the following uses are developed:
·to be compatible with surrounding Rural Purposes by being of similar scale, intensity and character, and
·to support preferred uses, and
·to not adversely affect the amenity of the locality; or
·to provide recreational or community facilities that are more appropriately located in the rural area;

they are consistent uses within the Rural zone:
…
(g) Major utility,
…”

The Specific Outcome for inconsistent uses is as follows:

“O3 Uses other than:

·preferred uses nominated in O1, or
·consistent uses developed to comply with the provisions set out in O2;

do not establish in the Rural Zone, do not comply with the overall outcomes sought for the Rural Zone and conflict with this code.”

“Rural Purposes” is defined in Schedule 1 of the Planning Scheme. It was (rightly) common ground that the proposal is not a Rural Purpose. Accordingly, the proposal does not meet the description of a use which is both consistent with and preferred within the Rural Zone for the purposes of Specific Outcome 1.

Specific Outcome 2 identifies uses which are “consistent” within the Rural Zone. Although Specific Outcome 1 states that “only” uses that are consistent and preferred are established in the zone, the case was approached (rightly) on the basis that the Planning Scheme should be construed as also contemplating within the Rural Zone those uses which are both listed and pass the criteria for a consistent use in Specific Outcome 2. That sits well with Specific Outcome 3 which seeks to exclude uses other than preferred uses nominated in O1 or consistent uses developed to comply with the provisions set out in O2.

The case was run (correctly in my view) on the basis that for a use to be a “consistent use” for the purposes of Specific Outcome 2, it must:
(i) be one of the listed uses, and
(ii) either satisfy each of the first three criteria or the fourth.
It was submitted, on behalf of Toole, that whilst the application was assessed on the basis that it was an undefined use (and hence not a consistent use), it is in fact a form of “major utility”. It would be surprising if a private grass airstrip for invitees were to be properly described as a major utility and it might be thought to result in something of an anomaly in the context of the definition otherwise, but it was submitted that the proposal nevertheless falls within the following definition in the Planning Scheme (underlining added):

“Major utility Premises for the purposes of any installation or undertaking for:

(a)       the generation and/or supply of electricity or garbage;
(b)       the storage and/or treatment of water, sewerage or garbage;
(c)       the provision of Shire-wide or regional community services such as major multipurpose venues for sport, culture and entertainment activities;
(d)       public transport facilities by way of depots, workshops or offices;
(e)       a goal, reformatory or similar penal establishment;
(f)       any State or Federal government infrastructure/utility purpose not defined as a Special Use;
(g)       a depot operated by or for the Council, other public authority or statutory corporation;
(h)       rail or water based transport;
(i)        air craft landing facilities (including a heliport) and associated navigational aids;
(j)        any infrastructure or utility activity which requires an environmental license, or is a ‘notifiable’ activity, under the Environmental Protection Act 1994; and
(k)       telecommunication facilities which are not determined to be low impact facilities, and which are of a scale or nature likely to have a significant adverse impact on the natural or built environment, including (but not limited to) any of the following:
(i)        towers or other structures more than 15 metres in height;
(ii)       any aboveground facility on or adjoining a site of cultural heritage significance, and
(iii)       aerial cabling in or immediately adjoining urban areas.

The term does not include Local utility as separately defined.”

It was submitted for the Council, and for Lever and Ward, that the proposal does not fall within (i) because it has no “associated navigational aids” in the sense of facilities which assist a pilot to navigate a course to the destination. Such ground based facilities must be certified or registered and are usually found in larger airports (such as at Brisbane or Archerfield) operated by a government or government-associated entity or larger private operators.[23] The evidence of Mr Tonkin is that with the advent of satellite based navigation, such facilities are now “effectively old and redundant technology.”[24] That the definition refers to facilities ordinarily associated with more substantial airports is however, unsurprising.
[23]T6-14-15.
[24]T6-14.

It was submitted, for Toole, that the definition does not require the landing facilities to have associated navigational aids in order to be a major utility. It was contended that the provision simply makes it clear that any navigational aids are to be regarded as part of this type of public utility and that the definition should be read as if the word “and” meant “including” or “including any”. That is not the language used. Further, the use of the word “and” may be contrasted with the use of the word “including” in the brackets where reference is made to a heliport. There is nothing about the context which justifies the interpretation contended for on behalf of Toole.

It was also submitted, for Toole, that the windsock and the cones delineating the landing strips are visual “navigational aids,” because they assist the pilot in determining how to “navigate” the aircraft from the sky to the landing strip once it gets to Tungamull. The other parties contended that such devices are landing aids only, rather than navigational aids.

The expression “navigational aids” is not defined either in the Planning Scheme or in the Sustainable Planning Act, has no accepted technical meaning,[25] and should be given its ordinary meaning.[26] That meaning is something which aids navigation and more particularly, in this context, the navigation of aircraft. The ordinary meaning of “navigation,” in the context of aircraft, is the art or science of directing the course of the aircraft.[27] The windsock and cones, whilst assisting the pilot in directing the movement of an aircraft onto the landing strip once it has reached its destination, are not aids for directing the course of aircraft to the destination and are not, in my view, properly characterised as navigational aids.
[25]Tonkin T5-92 and T6-61.
[26]See also s 1.15(5) of the Planning Scheme.
[27]See Macquarie Dictionary.

Accordingly, the proposal is not for a major utility. It was rightly characterised as an undefined use for the purposes of the Planning Scheme. This itself raises a point of conflict with the Planning Scheme, and, in particular, with Specific Outcome O3 which only contemplates uses within the Rural zone of the kind referred to in Specific Outcomes 01 or 02. The definitional debate is not, however, critical to my ultimate conclusion as to whether the proposal ought be allowed or refused. That is so because:

1. as I have acknowledged, grassed airstrips in fact can, depending on circumstances, exist in rural areas without necessarily unduly infringing on the landscape setting or rural amenity. Notwithstanding the strong language of Specific Outcome 3, if the use, although undefined, otherwise met the criteria in Specific Outcome 2, I would regard the gravity of the conflict arising by reason of a grassed rural airstrip not being within the listed uses as not being major in a practical sense, but

2. for the reasons which follow, the proposal does not meet the criteria in Specific Outcome 2 and so is not a consistent use, even if it were a major utility.

It has already been observed that Specific Outcome O2 requires fulfilment of all the first three criteria or, alternatively, the fourth. The latter refers to uses “developed to provide recreational or community facilities that are more appropriately located in the rural area.”

That the fourth criterion is an alternative means that Specific Outcome O2 contemplates such uses even if they are not compatible with surrounding Rural Purposes, do not support preferred uses and adversely affect the amenity of the locality. That is is understandable, given the benefit which ordinarily derives from recreational or community facilities. The proposal is however, neither.

It was submitted on behalf of Toole, that the proposal would be developed to provide recreational facilities because there are those who would wish to use the airstrip for recreational flights. The airstrip is not to be dedicated for flights for that purpose. The airstrip will be used by the operator and anyone the operator to whom gives permission. The purposes for which those authorised to use the airstrip will be flying are not mandated. The premises are not provided for any particular recreational activities. There is a range of possibilities. It is conceivable that the operator, or someone authorised by the operator to use the airstrip, might use it to land/take off in conjunction with a flight made for recreational purposes, but that does not render the facility one which is developed to provide recreational facilities. Similarly, the fact that some of the motorists who use a public road do so to undertake a recreational drive does not constitute the road a recreational facility.

The proposal is also not a community facility. In support of a submission to the contrary, Senior Counsel for Toole pointed out that the Planning Scheme uses the “descriptive term” of “Community Purpose” to refer to a range of defined terms including “major utility.”[28] It was contended that, if the proposal does meet the definition of major utility (which it does not), then it is described by the Planning Scheme as a Community Purpose and therefore should be regarded as development to provide a community facility.
[28]see s 1-17, 18 of the Planning Scheme.

The difficulty with that submission however, is that the expression “Community Purpose” is not that used in the fourth criterion in Specific Outcome O2. The relevant provision refers instead to uses developed to provide “community facilities.” That is an undefined term. It should be noted that the provisions elsewhere use other descriptive terms (“Rural Purposes” is used in O1(b)(i) and “Residential Purposes” is used in O2(a)). In those circumstances, the descriptive term is capitalised, indicating that the defined term is being used. The fourth criterion in O2, however, uses the different expression “community facilities” which is in lower case and undefined in the Planning Scheme. Section 1.15(5) of the Planning Scheme provides that “terms otherwise undefined in the Planning Scheme shall have the meaning assigned to them in common usage, unless the context otherwise indicates or requires.” The context does not indicate or require a departure from the ordinary meaning of the expression.

It was said, on behalf of Toole, that the aviators who may use this facility are members of the community. A collection of individual invitees is not however, synonymous with the community in the context of indentifying community facilties. The subject facility is not to be generally available to the community or indeed to aviators. It is a private airstrip available only to such persons, if any, the operator chooses to permit to use it. The proposal is not properly characterised as a community facility.

The fourth criterion also speaks of the provision of recreational or community facilities “that are more appropriately located in the rural area.” In a general sense, private airstrips might be more appropriately located somewhere within the rural area (treating that term as referring to the whole of the rural lands within the Planning Scheme area), than in some other area. For the reasons discussed later, however, the location of the subject facility in this relatively closely settled rural area, within which the subject site falls, is problematic.

The first criterion of O2 is that uses are developed “to be compatible with surrounding Rural Purposes by being of similar scale, intensity and character.” The criterion requires not compatibility with surrounding uses generally, but with surrounding Rural Purposes. The expression Rural Purposes is, as has already been observed, defined.[29] It is limited to the defined purposes of animal keeping, aquaculture, intensive animal husbandry, rural service industry and agriculture. Accordingly, the criterion requires compatibility with surrounding uses of that kind. Further, the proposal is to be compatible in a particular way, namely by being similar in scale, intensity and character with those purposes.
[29]Planning Scheme s 1-2, 3.

Insofar as scale is concerned, the airstrip is grassed, and the hangars may be said to be of a similar scale to farm sheds. The other facilities are of a modest scale. The evidence does not however, justify a conclusion that the intensity and character will be similar to surrounding Rural Purposes.[30] It will be similar in character to the Mill Iron airstrip, but that is not a Rural Purpose as defined and the use of Mill Iron is of a lower intensity than is sought to be permitted in this case. It was pointed out that Rural Purposes includes rural service industries, which are defined to include “crop spray establishments,” but this is not such a facility and no such facility exists in the surrounding area. The evidence does not otherwise establish that the intensity of the subject proposal, with its potential to be used regularly for multiple takeoffs and landings of aircraft, is similar to surrounding Rural Purposes. I acknowledge, however, that the intensity of the use could be reduced were stricter controls in the number of permitted movements to be applied.
[30]something not denied by Reynolds T8-74.

The second criterion is that uses are developed “to support preferred uses” which are, as has been observed, Rural Purposes. The proposal does not meet that description.

Mr Toole is an aviation enthusiast who has been flying since he was 17 years of age. He purchased his first plane in 1989 (having previously hired planes) and has used aircraft as a means of private transport. Prior to his retirement in 2008 he operated an equipment hire company with 12 branches through the State. He used his aircraft extensively. He currently owns a Cessna 182 aircraft and is a member of the Cessna 182 Club, which has a nationwide membership of persons from all walks of life. They get together from time to time at “fly-ins.” He has friends and acquaintances who are also aviators.

Mr Toole moved to the Tungamull area in 1978. He purchased land at 142 Keppel Sands Road in 1996. He built the Mill Iron airstrip (and hangar) at that property in 1996 as his first home based airstrip and hangar facility and has used it ever since. It consists of one airstrip and one hangar. It provides him with the convenience of hangaring his plane beside his residence. Mill Iron is a relatively short airstrip which, because of its orientation, is subject to cross-winds, but Mr Toole has no problem using it[31] and it has proved satisfactory for his purposes.[32] Helicopters have no trouble landing at Mill Iron.[33]
[31]T4-96.
[32]T4-95.
[33]T7-17.

Mr Toole says that for a number of years he had “numerous people expressing interest in using the Mill Iron airstrip,” but “due to its constraints, I was not prepared to let people use it generally… This high level of interest led to broader investigations for a possible airstrip locality (sic).”[34]
[34]Exhibit 23A paragraph 43, 44.

After purchasing the subject site in 2009, Mr Toole identified the opportunity (physically) to develop an airstrip on it and, in January 2010, decided to proceed. After communicating with the Council, he proceeded. Construction of the Tungamull airstrip was completed in August 2010 at a cost of in excess of $400,000.00.[35] Whilst friends and acquaintances have, in the past, used Iron Mill to visit him, Mr Toole proposes to direct visitors to Tungamull if it is approved.[36]
[35]T7-54.
[36]T4-97.

Mr Toole’s expressed intention in relation to the operation of the Tungamull airstrip is as follows:[37]
[37]Exhibit 23.

“20 The Tungamull Airstrip is to be operated as a private facility, to cater for me as an aircraft owner, and other members of my family and friends who predominantly live in the Rockhampton area or who have a holiday house or unit or family located on the Capricorn Coast.

21 Any person who intends to use the Tungamull Airstrip must first obtain my permission.

22 I consider light aircraft to be the best mode of transport throughout rural Queensland. The Tungamull Airstrip has assisted me in the development of my cattle breeding business.

23 The Tungamull Airstrip is also intended to cater to my friends who fly Recreational Aviation Australia (RAA) Registered Aircraft who are not allowed to enter controlled airspace such as Rockhampton Airport.”

The approval sought would, however, allow use by anyone the operator permits to use it for whatever their purpose might be. It must be remembered that any approval would run with the land. Mr Toole’s present intentions cannot be relied upon in relation to those who might get permission to use the airstrip in the future.

Leaving Mr Toole’s business use to one side, it is difficult to see that the Tungamull facility was developed to support any of the defined Rural Purposes. It is a facility for whomever the operator chooses to allow to use it. It is conceivable that it might be used by someone who is making a trip associated with the conduct of a business that is a Rural Pupose,[38] but that does not lead to the conclusion that the facility was developed to support Rural Purposes.
[38]see Mr Collins’ submission exhibit 35 page 531.

Mr Ovenden asserted that the facility would provide an “indirect way of advancing the rural economy” but acknowledged that the vast majority of rural activities in the area, including grazing, are in no way dependent upon aircraft or associated facilities.[39]
[39]T9-30/1-8.

Insofar as the Toole rural business is concerned, the development application asserted that:

“The Tungamull Airstrip is of considerable assistance to the applicant in running their business of cattle breeding on the subject site. It will be particularly useful for attending all relevant field days, bull sales, commercial sales, and stud sales in the Central Queensland Area as light aircraft is the most appropriate mode of transport given the significant distances between towns and cities in the area for sales being located in Mackay, Gin Gin, Duaringam Longreach and Roma.”

A similar claim was made in Mr Toole’s statement of evidence.[40]

[40]Exhibit 23 paragraph 119,120.

That claim was repeated by Mr Reynolds, the town planner retained by Toole. The evidence, however, fell short of establishing that “considerable assistance” or that the purpose of the Tungamull airstrip was to support the operation of a cattle business on the subject site.

Mr Toole is, by his own description[41] “fairly new to the grazing industry.” He did not purchase his first cattle until 2011.[42]As has already been observed, his decision to develop the Tungamull airstrip was taken in January the previous year.[43] Whilst Mr Toole might look to do more with his business in future, his evidence regarding flights for his cattle breeding activities to date involve attendances at a clearing sale, and at a field day in Emerald each year and little, if anything, more. He has not flown to any sales, but instead has bought his breeding stock at Gracemere nearby, and his bulls from his next door neighbour, Mr Collins.[44] In fact, his cattle business currently holds only 100 head of stock. He has not sold any cattle.[45] Further, he purchases molasses and bulls from his neighbour, Mr Collins.[46]
[41]Exhibit 23 paragraph 121.
[42]Exhibit 23 paragraph 121.
[43]Exhibit 23 paragraph 14.
[44]T7-50/36 to T7-51/47.
[45]T7-50/12 and T7-52/6-9.
[46]T4-6/5-9 and T4-6/46.

I have no doubt that were Mr Toole to choose to make a flight for reasons connected with his cattle business, that he might do so from the Tungamull airstrip, but any nexus with Toole’s modest cattle business bears no apparent correlation to the number of movements sought. There is no evidence that support for Mr Toole’s cattle operations would comprise any significant part of total strip use and there is no logical connection between such support and making the strip available for use by others for their own purposes.

Despite Mr Reynolds considering that Mr Toole’s cattle business was a “material consideration” in his support for the proposal, he did not know how many flights Mr Toole undertook per annum that were associated with fostering his cattle business, nor that he had not sold any cattle at all since establishing the business.[47] Mr Reynolds was also unable to identify[48] why Mr Toole would do anything differently from what he does now if the application were not approved, in terms of his cattle business. He did accept that so long as Mill Iron was available he could use that.[49]
[47]T9-5/10-29.
[48]other than by conjecture
[49]T9-6/23-31.

Further, when asked to explain how allowing other people to use the strip for their own purposes would improve, or give rise to, a viable cattle operation, Mr Reynolds responded, “I can’t do that because I don’t know the operators of the (planes) who (would) take the hangars, but it is possible that it could have that benefit, but I can’t confirm because I don’t know who they are.”[50] The best that Mr Ovenden (the town planner retained by the Council) could do was to suggest “there is some connection with the working of the property, and the operations broadly that are associated with Mr Toole’s business.”[51]
[50]T8-90/46 to 8-91/2.
[51]T9-30.

Aircraft are not always an incidence of cattle breeding operations. Mr Bate, a fellow member of the Cessna 182 Association and someone to whom Mr Toole turns for advice in the cattle business, gave evidence of his use of aircraft, but that only served to illustrate the vast difference between his circumstances and those of Toole.

Mr Bate has four cattle properties, two of which are 700km from his home base. Mr Bate has a hangar on his homestead property with room for one plane. His fuel storage tank holds about 2,000 litres. He has visitors from time to time, approximately every 6 to 8 weeks. His homestead property comprises 4,400 hectares, and his nearest neighbours are about 4½ km away. His other properties contain 8,000 acres, 4,800 acres and 10,000 acres respectively. On average he runs around 3,000 head of cattle. His properties are spread 700km apart. Whilst he may stay on other properties for up to 2 to 3 weeks at a time, he does not have hangars on them. The airstrips on the properties are gravel. The other properties do not have Avgas facilities (other than fuel drums for helicopters).[52]
[52]T4-64 to 66.

The proposed facility is an aviation facility for the operator and for those allowed by the owner to use it for whatever their purpose might be. As was submitted on behalf of the Council, it introduces something of a transport “hub” for use by invited, but nevertheless potentially numerous, members of the light aircraft flying fraternity including potentially from far away.

I am not satisfied that the substantive purpose for which the Tungamull facility was developed (or is proposed) is in order to support preferred uses in the Rural Zone. Even if the use of the airstrip could be limited to Mr Toole, his friends and those doing business with him, as the Council wishes (a matter discussed later), the conclusion does not change. It has not been demonstrated that, even operated within such constraints, the substantive purpose would be to support preferred uses, rather than to support flying for the more general lifestyle, social and other interests of Mr Toole and his friends.

The third criterion is that the use be developed “to not adversely affect the amenity of the locality.” Such provisions are often interpreted as subject to an implied qualification such as “unacceptability” or “unduly” rather than as requiring absolutely no adverse impact however insignificant.[53] Amenity is discussed later. As presently proposed by Toole, the airstrip would likely have undue amenity impacts. Even if amenity impacts could be contained to within acceptable limits by further constraints, the proposal nevertheless fails to meet all of the first three or alternatively the fourth criteria in O2.
[53]see e.g. Di Marco v Brisbane City Council [2006] QPELR 731 at 735 paragraph 28.

Even if the proposal were for a consistent use complying with the criteria in O2, it would still have to conform with the character and amenity provisions in O5 in order to not to conflict with the Planning Scheme. In that regard Specific Outcome O5 provides:

“O5 Uses and works are located, designed and operated to minimise adverse impacts on:

· Existing environmental conditions relating to air, water and soil,

· the amenity of adjacent properties and public spaces,

· visual quality of landscapes in terms of:

- reducing ribbon development and sprawl,

- loss of green break separations,

· obstructing significant local and distant views of prominent natural features and landmarks, and

· the health and safety of people using the premises and adjacent premises.

The self-assessment solutions to that Specific Outcome provide no guidance in this case.

I have already observed that the safety issues (the last bullet point) have been satisfactorily addressed. The nature of the facility is such as not to pose any significant visual or environmental issues (first, third and fourth bullet points). There is, however, conflict with the second bullet point. Amenity is discussed later. As proposed by Toole, the facility would have undue impact. However, even if the likely amenity impacts were constrained there is nevertheless conflict with this provision. The objective requires the minimisation of adverse amenity impacts in the way that uses and works are:

· located;

· designed, and

· operated.

Specific Outcome O5 does not countenance an approach which locates a use in a way which is insensitive to potential amenity impacts in reliance upon strict operational measures to reduce impact. That is what the subject proposal does.

The locality within which the subject site sits is rural, but certainly not remote. It is relatively closely settled by Rural standards. It was not unreasonably described by Mr Ovenden[54] as toward the “hobby farming” end of the rural spectrum. This makes the location of a use that is productive of potentially intrusive noise (such as the subject proposal) problematic. The subject proposal, with its proximity to residences, does not evidence any sensitivity to that. It is not a good location for such a use.[55] As Mr D. Brown (the town planner called by the Ward/Levers) attested:[56]

“the general settlement of the locality juxtaposed with the type of use which is proposed, which is extensive aircraft movements, is inherently incompatible.”

[54]T9-28.

[55]Brown T2-14, Thorne T3-28.

[56]T9-69.

Senior Counsel for Toole submitted that the provision is concerned with location of a use within a particular site, rather than with the location of the chosen site. He effectively conceded[57] however, even on that approach, the evidence did not establish minimisation of impacts by location.

Amenity

[57]T10-93.

(i) perceptions

The submitters alleged both direct and psychological (or perception) amenity impacts. The former is discussed below. The latter in this case relates particularly to the fear of safety implications and the fear of impact on livestock. It is well settled that amenity impacts can include impacts on the perception of amenity.[58] However, as de Jersey J (as he then was) made clear in Broad v Brisbane City Council,[59] the weight to be ascribed to that is a different matter.
[58]Broad v Brisbane City Council [1986] 2 Qd R 317.
[59]Supra at page 325.

Given that the evidence demonstrates that the fears in relation to livestock will, with habituation, likely prove to be without substantial foundation, there is potential for the fears to abate over time. In any event, I am not inclined to give these fears significant weight.

The fears in relation to safety are understandable. Indeed, Australian Standard AS 2021-2000 (discussed later) acknowledges that “Human reaction to aircraft noise is known to depend not only on the amount of noise, but also on psychological factors such as …. fear of aircraft crashing.” Mrs Lever and Mr Ward expressed concerns.[60] Whilst the evidence satisfies me that the Tungamull airstrip would be sufficiently safe for use, aircraft crashes can, of course, occur even at relatively safe facilities and the consequences for nearby residents are potentially serious. I accept that the airstrip is likely to have some psychological amenity impact in this regard. That is part of the likely amenity impact, although I would not give that determinative weight in and of itself.
[60]Exhibit 28 paragraph 23, Exhibit 29 paragraph 33.

(ii) noise

The direct amenity impact related to acoustic amenity.[61]
[61]Some witnesses also expressed a concern about privacy, but that issue was not urged in submissions.

The proposal would bring additional aircraft noise into the locality. It would not introduce a substantially different type of noise. Aircraft noise, both from aircraft passing overhead (at cruising height) and taking off/landing to/from Iron Mill is part and parcel of the existing amenity of the broader locality. That activity does not seem to be having any undue impact. The concern about amenity is most particularly in relation to the houses which are most exposed to activities associated with the Tungamull airstrip, being the Lever, Ward and Miller residences, although evidence was also given by others who reside somewhat further away, but also have been annoyed by past activities and/or have concerns about future operations.[62]
[62]See statements of Sawtell exhibit 31, McKillup Exhibit 32, Parter Exhibit 33, Ellrott Exhibit 34.

The Tungamill airstrip operated, in an unconstrained (albeit apparently unlawful) way from 27 August 2010 until the last week of August 2011, when Toole gave undertakings about its use, in the context of the enforcement proceedings. As has been noted, those undertakings ultimately restricted the number of flights to a maximum of six per week (i.e. six take offs and six landings).

There was evidence from Mrs Lever, Mr Ward and Mr Miller about the annoyance which the use of the Tungamull airstrip caused them in the past. The Levers purchased their property in 2003. It is a 40ha parcel. They were aware of the Mill Iron airstrip when they purchased.

The Levers originally lived in a shed on their property while they built their house, which stands on a hill overlooking what has since become the disputed airstrip. Their enjoyment of the property was not unduly affected by Toole’s use of the Mill Iron airstrip. Although planes using the Mill Iron strip fly over the Lever residence, the use of that airstrip was relatively infrequent and its separation from the Lever residence greater. Mrs Lever was however, annoyed by the use of the Tungamull airstrip. Insofar as the use of the airstrip prior to the undertakings given in the enforcement proceedings, Mrs Lever’s statement says.[63]
[63]Exhibit 28.

“11. Noise intrusion from planes and helicopters using the airstrip has a major impact upon the enjoyment of our property. When the airstrip was being used (before the Court order restricting its use), the noise from aircraft taking off, landing and warming up was very annoying, especially because those activities often happened on the part of the strip closest to our house. I can also hear the aircraft as they fly away, particularly if the prevailing wind is to the east.

12. Before the enforcement proceedings against Mr Toole, we frequently had planes and helicopters flying over and near the house. The multiple planes taking off and landing during any one day were noisy and very intrusive, especially on a still morning, whether on weekends or school days. The aircraft would often taxi down the runway and stop parallel to our house and do their engine warm ups. Helicopters also used to hover along the strip.

13. On occasions when my husband was on night shift, and was sleeping during the day, the planes taking off would wake him. One particularly bad occurrence was a helicopter flying over the house at 5:20am one morning after my husband came back from a night shift. The helicopter landed at the Tungamull airstrip, refuelled and took off.

14. Sunday sleep-ins were sometimes disrupted with planes warming up and taking off around 7:30am or earlier. Planes and helicopters would fly in, refuel, and leave. At times there were planes and helicopters lining up and waiting for fuel.

15. Flights on weekends and in the mornings were the worst, due to their frequency and the fact that we were at home, trying to enjoy the peace and quiet of our rural lifestyle.”

The Wards purchased their property in April 2005 and operate a small farm. They recently purchased another 30 acres to extend their paddocks. They also operate a family business specialising in high voltage cable joining, although the actual splicing and joining of cables does not take place on their property.

Insofar as noise is concerned, Mr Ward said in his statement:[64]
[64]Exhibit 29.

“18. Prior to the use of the Tungamull airstrip we had not been affected by noise from planes at all.

19. While the airstrip was operating, there were regular flyovers of our house (often by more than one plane on any one day). There was also early morning noise from helicopters warming up before take-off. The noise from the aircraft echoed through the mountains and valleys whether they flew directly overhead or not. Sometimes, the aircraft were very low over our house and property.

20. The noise from the planes using the Tungamull airstrip is obvious and irritating. I can hear planes take off and land, and can hear them as they fly around (whether they are directly over our property or otherwise). I feel that the noise of the planes is accentuated by the topography of the land because the mountain ranges boarding the area causes aircraft noise to travel and echo through the valley, especially on still days.

21. Being a shift worker, I sometimes try and sleep during the day. Noise from aircraft using the airstrip has disturbed me on many occasions. Even when I am on a break from shift work and want to take an afternoon nap, noise from planes and helicopters has disturbed me. The aircraft also disturb my elderly father who resides with us since the passing of my Mother. My grandson has also been disturbed sleeping during the day. This is not something we expected when we moved into this peaceful rural area.”

The Millers purchased their 877 acre property in 1999. They built a new home in 2006, which was located away from the road to escape traffic noise. It was to be their home for retirement. Mr Miller, in his statement,[65] said as follows in relation to noise from the Tungamill airstrip:
[65]Exhibit 30.

“9. Before the restriction of one plane only was imposed by the Court order, the Tungamull airstrip was operating with multiple aircraft. During that time there was a substantial disruption to our previously pleasant lifestyle. There were planes landing, re-fuelling and taking off. Planes were also being stored in the hangars which are approximately 50 metres from our boundary. The noise was troubling both our livestock, and our ability to live a normal rural lifestyle.

10. Part of the problem was that aircraft did not follow the right path from the Tungamull airstrip. As an example, on the afternoon of Sunday, 22 September 2013 a plane (not belonging to Mr Toole) took off from the airstrip. The pilot did not follow the set route and came over our paddock within 100 metres of our home then turned north. The pilot then did a return flight and flew west to east 25 metres from our home at low altitude. On the third flight the pilot flew directly over our home at very low altitude. The three flights all took place within a 20 minute timeframe. It was quite frightening.

11. The noise that comes out of Mr Toole’s plane is deafening at close range, let alone all the aircraft he proposes to have taking off from this strip. The noise from an aircraft is very different to truck noise. The house at Mijovi is 300 metres away from Keppel Sands Road and we seldom heard the traffic. We could always hear the planes and helicopters on the airstrip though.”

As a result of the stress associated with the operation of the airstip, the Millers decided to sell their property[66] and relocate to Barcaldine.

[66]which they did in January this year.

Mr Collins, on the other hand, who lives approximately 400m from the airstrip, is unconcerned about it. In his statement he described the airstrip as “a beautiful set up.” Whilst he can hear aircraft activity from the strip, he does not consider it to be excessive or intrusive. Similarly, Mr Raleigh was not troubled either by the operation of the Iron Mill strip (which is only about 200m from his residence) or Tungamill (which is about 2kms away).

That some residents might not be bothered by the activities associated with the airstrip does not mean that others should be unconcerned. Different people can have different tolerances to noise.

Whilst Senior Counsel for Toole pointed out that the evidence of the annoyed residents somewhat overestimated the past use that had been made of the Tungamull airstrip and whilst he also suggested that they were over-sensitive, none of the acoustic engineers was prepared to brand the neighbours’ past reactions as unreasonable.[67]
[67]Brown T2-102, Thorne T3-26.

It was pointed out that Mrs Lever claims to be sensitive to noise associated with aircraft movement from the Tungamull airstrip, but not by mechanical noise generated on her own property, such as the noise of a petrol or diesel fuelled pressure cleaner.[68] That is, however, unsurprising. Noise from occasional activity of that kind on their own property is in a different category to noise from an adjacent airstrip. Both airplane and helicopter noise result in annoyance.[69]
[68]T8-33; Exhibit 11 page 6 paragraph 41.
[69]T3-60 – see later discussion of helicopter noise.

There was some reference to some commercial/industrial activities carried out on the Lever and Ward premises. Mr Toole had Mr Reynolds investigate the lawfulness of that.[70] The activities on the Lever premises have ceased. Mr Reynolds ultimately did not make any point about the nature of impact on amenity of activities on either the Lever or Ward properties.[71]
[70]Exhibit 82.
[71]T8-89.

I accept that the past use of the Tungamull airstrip caused undue annoyance to the residents of the Lever, Ward and and Miller residences, at least prior to the undertakings given to the Court.

Approval of the airstrip carries the obvious potential for future annoyance of residents. Toole proposes to address that potential by a management plan (and conditions of approval) to impose operational constraints including the following:

(a) limiting the number of movements;

(b) designating flight paths, with minimum lateral separation distances from the three residences;

It was contended, for Toole, that the amenity impact of the proposal would be acceptable if it were operated in accordance with the operational restrictions.

The potential for noise impact was assessed by three acoustic engineers, Mr Brown (retained by Toole), Dr Thorne (retained by the Council) and Ms Richardson (retained by Ward and Lever). They agreed that the following average maximum noise levels would be typical at the following residences:

Light Plane (take-off)

Helicopter

Lever

74

74

Ward

56

64

Miller

68

71

Collins

72

70

As Ms Richardson (with whom Dr Thorne agreed in this respect) pointed out, average maximum noise levels for take offs[72] could increase somewhat under adverse meteorological conditions.[73]
[72]Light plane landings do not produce intrusive noise levels.
[73]Exhibit 11 paragraph 55.

Helicopters create concern in terms of the character of their noise.[74] Helicopter noise is tonal. “Blade slap” is a particular feature that can be annoying.[75] People can become annoyed very quickly by such noise.[76]
[74]Dr Thorne – T3-19/24-25.
[75]Dr Thorne –Exhibit 25 paragraphs 60 and 62; Mr Brown T2-76-77.
[76]Dr Thorne – T3-23/13-36.

In assessing the noise likely to be generated the experts considered the use of runway 09, because that is the runway expected to be used most often. The noise generated by use of runway 27 (east to west) has not been assessed, although that runway is to be available and, on Ms Lever’s evidence,[77] is frequently used. Certainly Toole has not established that the noise from the use of that runway would not also be intrusive.
[77]T8-25.

The above sound levels are significantly above the prevailing background. Each of the acoustic experts saw the levels as clearly noticeable and intrusive, or potentially so[78] for the nearest residences.
[78]Dr Thorne T3-21; Richardson T3-50; Mr Brown T2-60.

Dr Thorne considered (and I accept) that an indoor maximum sound level of 55 to 60 dB(A) was a reasonable range for testing potential noise intrusion, disturbance and annoyance. With an external level of 74 dB(A) at the Lever residence, Mr Brown would have expected an internal noise level of about 64 dB(A). The only measurement within the Lever house was a noise level of 72 dB(A) measured in a semi-enclosed indoor/outdoor (but previously external) room at the rear corner of the Lever residence overlooking the airstrip. There was debate between Mr Brown and Dr Thorne about whether that should be regarded as a level obtained from an internal or external space. Mr Brown attributed the low level of attenuation from outside to inside for that room as likely being due to largely open windows and a reverberant floor.[79] That debate is ultimately of little assistance. The room is used by the Levers. Their amenity when using it is entitled to be considered. The noise level is sufficiently high, against the background[80] to be very noticeable and intrusive.
[79]T2-59.
[80]The measured sound levels show that maximum levels of aircraft noise (LAS max) on take off are in the order of 24 dB(A) to 30 dB(A) above the background (L90) – Exhibit 25 paragraph 58.

It should also be noted in relation to internal noise generally, that the living areas of the Lever home, including not only the indoor/outdoor room but the kitchen, lounge and verandas are on the southern face of the house, overlooking the airstrip. Mrs Lever’s evidence as to her perception of the noise experienced from within the lounge room, with open windows facing the runway, suggests that the attenuation is insufficient to avoid annoyance.[81] The Levers ought not be expected to close their windows and doors to protect themselves from noise from the airstrip. They should not be forced to adjust their lifestyle to accommodate the airstrip. Even assuming an indoor noise level of about 64, Mr Brown acknowledged that the noise would be clearly audible and such that a person could regard it as intrusive.[82] I am satisfied that there is potential for noise annoyance, within the Lever residence, from activities on the airstrip.
[81]T8-20 – see also the reference to an open door.
[82]T2-61.

Each of the acoustic experts was conscious that the noise from a plane take off is of relatively short duration and all were of the opinion that the impact might be acceptable if the number and frequency of the events was sufficiently constrained. In this regard each of the acoustic experts looked to identify a constrained level of use which, whilst not providing a complete protection of existing amenity, represented what they considered to be a “reasonable balance” in the circumstances.[83] Mr Brown[84] described the exercise as endeavouring:
[83]for other references to achieving a “balance” see T2-79, T2-87, T2-99, T2-100, T3-69.
[84]T2-66.

“to find a balance where there is some give and take. Live and let live. Some reasonable basis on which you can allow a development to proceed and preserve a reasonable degree of acoustic amenity. Not a pristine level, but a reasonable level.”

Ms Richardson described it as follows:[85]

“It relates to achieving a reasonable balance between – amongst the community in terms of acoustic amenity and what may well be reasonable for a neighbour, such as Mr Toole, to have the ability at his property to operate and make noise. It’s something all of the experts have considered. It’s a test of reasonableness and of achieving a balance within the community.”

There is, of course, no imperative to accommodate the proposed airstrip.

[85]T3-59.

Counsel for the Council pointed out that limiting the number of events over a given day may reduce the average noise energy, across the day, but does nothing to reduce the intrusive effect of each individual event. That may be true, but an intrusive event which is very infrequently experienced is unlikely to have as great an impact upon overall amenity as one which is experienced more often. To take an analogy accepted by Dr Thorne,[86] a single dog bark on a given day might be intrusive, but a dog that barks once a week is unlikely to have the same impact upon amenity as a dog that barks all night. I accept that the impact on acoustic amenity would not be undue as long as the frequency were sufficiently constrained and other appropriate controls could be imposed and enforced. I note that the use of Tungamull carried out pursuant to the undertakings does not appear to have caused undue annoyance.
[86]T3-22.

Toole’s current proposal would permit a combined total (for helicopters and fixed wing aircraft) of 520 takeoffs and 520 landings per year[87] (on average, approximately 1.4 take offs and 1.4 landings per day). That may be contrasted with the records of past use of the airstrip. According to Toole’s records[88] there was a total of 43 movements (i.e. take off or landing) from the last week of August through to 31 December 2010, 172 movements in 2011, 120 in 2012 and 98 in 2013. The proposal would obviously permit much greater use of the facility than has occurred in the past. That is of obvious concern.
[87]Exhibit 72 s 4.4.
[88]Exhibit 85.

Notwithstanding the proposed increase in usage, the acoustic experts were generally in agreement that total movements of about the magnitude proposed could achieve a reasonable outcome.[89] The views of the noise experts about the extent of the restriction on movements necessary to achieve a reasonable outcome ultimately came down to matters of judgment, since there is no directly applicable standard or guideline which provides the answer in the present circumstances.
[89]The annual combined maximum under the conditions suggested by each of the experts is not significantly different from an acoustic perspective.

Mr Brown gained some comfort from the fact that the average frequency of use and the noise generated is very comfortably below the figure of 80dBa for 20 movements per day referenced in AS 2021-2000. That is, however, concerned with a different situation, where it is proposed to carry out new construction in the vicinity of an existing facility, rather than where a new private facility is proposed in an area with established residences. It identifies that where there are 20 movements per day at levels of 80dB(A) or more, building insulation should be provided for reduction of intrusive noise impacts.

A perusal of the standard reveals the following (bolding added):

“(a)its purpose is associated with ‘building siting and construction.’ It provides ‘guidance’ about that for the construction of buildings in the vicinity of airports to minimise aircraft noise intrusion (page 2, Preface);
(b)it includes a Foreword which provides the aircraft noise intrusion within a building depends substantially on a range of factors and that:
‘Human reaction to aircraft noise is known to depend not only on the amount of noise, but also on psychological factors such as personal sensitivity to noise, fear of aircraft crashing and attitudes towards aviation. Thus some individuals will be seriously disturbed by aircraft noise even when the building is sited and constructed according to the Standard.’
Some experience has shown that communities which are newly exposed to aircraft noise (eg as a results of the construction of new runways, or the redesign of flight paths near an airport) tend to be more sensitive to such noise than communities which are accustomed to it. Land use planning must by necessity use a long term horizon, and the building siting acceptability recommendations and the standard are based on the reactions of noise accustomed communities. Regulatory authorities are cautioned that a transit heightened reaction could result from substantial new noise exposure.’
(c)‘The acceptability of outdoor spaces is not covered by this standard’ (page 5, scope);
(d)The recommendations for building construction are based on the assumption that external windows and doors are shut (page 5, scope, notes);
(e)The standard is not intended to be applied for the purposes of assessing the effects of noise from aircraft (page 5, s 1.2 objective);
(f)The ‘indoor design sound level’ within the standard represents the recommended maximum level indeed be B(A) inside a building from an aircraft flyover (page 8, s 1.5.8); and
(g)In circumstances where, appendix D applies (page 10, s 2.1.2) it is ‘informative’ only (page 53). And ‘informative’ appendix ‘is only for information guidance’ (page 2).”

I am not persuaded that much guidance can be taken from AS2021-2000 for present purposes.

The report by Mr Brown for the development application stage referenced the Environmental Protection Noise Policy of 1997 (EPNP 1997), but that set levels for “beneficial assets”, which the proposal is not. That policy was superseded by the 2008 version which did not apply to noise from aircraft movements.

I am not critical of the noise experts for doing their best in reliance upon their professional judgment. Published standards or guidelines do not provide the answer in every situation. However, once the reference to inapplicable documents is put in one side, the views of the experts about the number of movements which might produce a reasonable outcome in amenity terms appears to lack any compelling scientific or other intellectual basis, within the field of their specialist knowledge, for the conclusions reached.[90]
[90]see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

The evidence of the experts is not the totality of the evidence before me in relation to acoustic amenity. Counsel for Lever and Ward referred to the following words of Jones DCJ in Bassingthwaite v Roma Town Council[91]:

“While the evidence of appropriate experts must of course be respected and given due weight, the Court is not obliged to fall in with their assessment of what impacts other people ought find acceptable. (Australian Capital Holdings Pty Ltd v Mackay City Council (2008) QPELR 224 at [51]). Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses. (Mooloolah Commercial Pty Ltd v Caloundra City Council (2005) QPELR 648 at [61] and [92]).”

[91](2011) QPELR 63 at 61-63.

It was submitted, both on behalf the Council and on behalf of the Levers/Wards, that I should give weight to the evidence of the annoyance caused to neighbours by the past use of the airstrip for fewer movements than would be permitted under the approval sought. That was said to be appropriate, particularly in circumstances where there is no benchmark to support the opinions of the experts.

In considering the evidence of the residents (or, in the case of the Millers, past residents) I have been mindful that:
(i)         different people can have different sensitivities and reactions to noise. I note that Dr Thorne’s evidence was that whilst, with appropriate controls on frequency, his “personal feeling” is that there would not be an undue impact on amenity, he did not pretend that residents would necessarily have the same view;[92]
[92]T3-20.
(ii)        the Levers’ direct line of sight would tend to make the impacts all the more annoying;[93]
[93]T2-100.
(iii)       it was pointed out for Toole, there are other sources in the locality which produce noise at or above the levels produced by aircraft. Noise from aircraft is, however, of a kind known to elicit a strong adverse response[94];
(iv)       it has already been observed that helicopters not only produce higher levels of noise, but can be particularly annoying;
(v)        the views of residents must be judged in terms of reasonable expectations, which must include the prospect of such change to their environment as is contemplated by the planning scheme. As was pointed out for Toole, the planning scheme provides for a wide range of uses within the rural zone, some of which would be potential noisy. As was pointed out on behalf of the other parties, however, the planning scheme does not dictate an expectation of all such uses being developed on all or any particular site, or part of a site, within the area so zoned, irrespective of site suitability or potential impact. The rural locality within which the subject site falls is relatively closely settled by rural standards; there are no animal keeping, agriculture, forestry, intensive animal husbandry or rural service industry uses nearby; there are immediate neighbours to the subject site in close proximity; the airstrip is located on a narrow part of the site, in terms of distance between the northern and southern boundaries, and there is an absence of unacceptable impacts from other activities in this particular locality. Insofar as an airstrip is concerned (and leaving aside the Planning Scheme provisions to one side) it is not uncommon to see airstrips in rural areas particularly where they are necessary or desirable to overcome the tyranny of distance and/or to support a large scale rural business. Mr Ovenden referred to his experience growing up in central western Queensland. Ms Richardson referred to the fact that:
“many farms and stations in rural areas require the use of fixed wing aircraft for crop spraying, mustering and other rural activities. Rural airstrips may also be used for other reasons including emergency services and to allow visits to other rural enterprises, family and friends and nearby towns to be made by light aircraft.”
In this case, however, a person who has an airstrip adjacent to his own house is proposing another airstrip, on another property, proximate to neighbouring residences within a locality which is not remote and in circumstances where the substantive purpose of the development is the provision of an aviation facility which is not particularly for, or targeted at, the operation or support of rural pursuits, but is for the operator and such aviators as the operator chooses to allow to use it for any purpose. Even if it were accepted that the prospect of airstrips being located somewhere in the rural zone should be contemplated and, even if that expectation included an airstrip to be operated as is here proposed, it is difficult to see that existing residents should have reasonably expected the prospect of an additional airstrip located within the same or similar relationship to their homes as the subject proposal.
(vi)       as has been observed, none of the acoustic experts were prepared to say that the reaction of residents to past activities was unreasonable.
[94]T3-60.
I have also been conscious, however, that it is proposed to control other aspects which have previously caused or which would have potential to cause annoyance. In that regard:

· the designated flight paths, with lateral separation distances would, if adhered to, result in no direct overflying of the most exposed residences, although Mr Toole’s evidence is that his previous flight path was typically close to the circuit now proposed;[95]
[95]T7-66.

· helicopter take off/landings would be required to occur in a particular area north of the hangars, with approaches within a designated area. Whilst the helicopter landing/takeoff zone does not represent a significant change from past activities,[96] helicopters are to be prohibited from taxiing along the runways, which is something that has caused annoyance in the past;
[96]T8-22.

· there are to be no take offs from runway 07;

· controls on the type of aircraft will prohibit a particularly noisy aircraft;

· all planes must, upon landing, taxi to the vicinity of the hangar. There is to be no parking on the runway or taxiway;

· aircraft are to be warmed-up at or within close proximity to the hangars. No aircraft is to be warmed-up on ground directly in front of an existing adjoining residence;

· run-ups are to be conducted at the threshold of runways only;

· no commercial aircraft-related activity (including charter flights, flying schools or commercial aircraft maintenance) is to occur;

· aeroclub activities (such as treasure hunts, balloon bursting or flour bombing) are prohibited.

The Council’s position is that, whilst the limit on the number of movements should be as Dr Thorne suggested (discussed later) other conditions should be imposed in effect to restrict the airstrip to one for “personal use” (as that expression was explained in the Council’s case) such that, in practice, a lesser level of use could be expected which would be unlikely to cause significant annoyance, given that the use of Mill Iron is tolerated by the residents. Council’s conditions include prohibiting the sale of avgas or the renting of the hangars.[97] Counsel for the Council submitted that the conditions imposed by the Court on any approval could include conditions “better or more clearly giving effect” to its intention.[98]
[97]condition 1.1.
[98]paragraph 12 of the Outline of Submissions for the Council.

The proposal is obviously not for simply a “personal use” airstrip and there are a number of difficulties with the Council’s submission. First, it assumes that the restrictions imposed would lead to a similar level of use by Tungamull in the future (including under any operator) to that of Toole at Mill Iron. Whilst the restrictions proposed by the Council would tend to decrease activity, no particular level of decrease can be ascertained and a decrease to the same level of use seen at Mill Iron in the past[99] cannot safely be assumed.
[99]which, in 2011 was a total of 85 movements (take off or landing) – exhibit 86.

It might be noted that the personal use which the Council would accept includes use not just by Mr Toole, but extends to use by friends and those doing business with him. Given Mr Toole’s association with the aviation fraternity, the scope of his flying friends may be quite considerable. Enforceability issues also intrude.

Secondly, given the different location and orientation of Tungamull, it cannot be assumed that a given number of movements at that facility will have the same impact as the same number of movements at Mill Iron.

Thirdly, if the limits suggested by Dr Thorne are indeed acceptable, there would seem to be no compelling argument, in terms of noise impact, for conditions designed further to constrain movements by indirect means.

Fourthly, if as Council’s case and indeed the evidence of Mr Ovenden suggests, a lower level of use is necessary to acceptably constrain amenity impacts then it is difficult to see why that should not be done by changing the limits on movements, rather than trying to achieve the same thing by indirect means.

The totality of the evidence in this case does not afford any real confidence in determining the point where the frequency of use of the airstrip crosses from acceptable to unacceptable in terms of its effect on acoustic amenity. I am ultimately left short of being positively persuaded that an increase in use of the airstrip for up to 520 takeoffs and 520 landings, which may include up to 104 helicopter takeoffs and 104 helicopter landings,[100] will not be accompanied by a significant adverse impact on acoustic amenity.
[100]exhibit 72 s 4.4(h).

It has already been observed that the average daily movements proposed is about 1.4 takeoffs and 1.4 landings. Even if it were accepted that movements consistently at about that rate are unlikely to have a substantially degrading effect on overall acoustic amenity, there is a further difficulty because Toole seeks flexibility to have significantly more movements on any given day.

The most recently formulated proposal for Toole is as follows[101] (excluding emergency situations):
[101]exhibit 72 s 4.4.

(a) For fixed wing aircraft:

(i) no takeoffs or landings on Christmas day;[102]
[102]exhibit 72 s 4.4(i).

(ii) a maximum of three takeoffs and three landings on Good Friday;[103]
[103]exhibit 72 s 4.4(a).

(iii) a maximum of five takeoffs and five landings on any other day (other than Christmas, Good Friday or a Special Event day);[104]
[104]exhibit 72 s 4.4(b).

(iv) a maximum of 44 takeoffs and 44 landings per month, but not more than 468 takeoffs and 468 landings in a calendar year.[105]
[105]exhibit 72 s 4.4(c).

(b) For helicopters:

(i) no takeoffs or landings on Christmas day or Good Friday;[106]
[106]exhibit 72 s 4.4(e).

(ii) a maximum of two takeoffs and two landings on any other day (other than Christmas, Good Friday or a Special Event day;[107]
[107]exhibit 72 s 4.4(f).

(iii) a monthly maximum of 10 takeoffs and 10 landings[108] with an annual maximum of 104 takeoffs and 104 landings.[109]
[108]exhibit 72 s 4.4(g).
[109]exhibit 72 s 4.4(h).

(c) For helicopters and fixed wing aircraft combined:

(i) a quarterly maximum of 135 takeoffs and 135 landings;[110]

(ii) one special event day per quarter (not more than six weeks apart), where there may be a maximum of 15 takeoffs and 15 landings (including no more than one helicopter takeoff and one landing).

[110]exhibit 72 s 4.4.

Consequently, on a given day (and indeed on successive days), Toole’s proposal could see seven takeoffs (five fixed wing and two helicopter) and seven landings, with the potential, in a given month, for up to 54 takeoffs (44 planes and 10 helicopters) and 54 landings. Given that fixed wing takeoffs and both helicopter take offs and landings[111] are potentially intrusive and annoying, this could result in up to nine intrusive events (5 plane takeoffs, 2 helicopter takeoffs and 2 helicopter landings) on any given day and up to 64 potentially intrusive events (44 plane takeoffs, 10 helicopter takeoffs and 10 helicopter landings) in a given month. Up to 15 takeoffs and 15 landings are contemplated for up to four special event days with prior notice. The above compares with the highest number of movements (takeoff or landing) in a month at Tungamull which was 45 in January 2011 during the flood. The limits now proposed are acceptable to Mr Brown, but more than what the other acoustic experts thought appropriate.
[111]Mr Brown acknowledged that there is “very little difference” between the noise of a helicopter take off and a helicopter landing, such that “a landing is an event in its own right, as would be a take off.” That is something that was not previously taken into account – see T3-9.

This rather complicated array of limits on movements is sought on the basis of providing flexibility. Obviously Toole wishes to be able to accommodate some fluctuation in the extent to which people (including operators of the hangared planes) wish to use the airstrip at any given time. Further, it was pointed out that weather conditions do not permit flying each and every day and so there should be some flexibility to ensure that flights can be made on days when it is safe to do so.

One can understand Toole’s desire for some flexibility, but:
(i) The evidence did not satisfy me that the extent of flexibility requested was reasonably necessary on safety grounds; and
(ii) The impact of that “flexibility” cannot, in any event, be ignored.
The degree of flexibility sought would allow use of the airstrip for a significant number of movements from time to time throughout the year. Claims that the various maximums would rarely be reached does not provide a sound basis for assessment of that which is sought. Whilst particularly heavy use on some days would have to be balanced with little or no use on others (in order to meet monthly, quarterly and annual limits), there remains the real prospect of use which causes annoyance on a sufficiently regular basis to be of concern. That annoyance could occur both on weekdays and on weekends, when residents could reasonably be expected to be home enjoying their amenity. Mr Brown’s evidence contained no convincing basis for concluding that the flexibility sought would not adversely impact upon acoustic amenity.

Other than for two special event weekends per year, the Council’s conditions of approval limited fixed wing movements to two per day and seven per week and the number of helicopter movements to two per week. There was to be no movements on public holidays. Ms Richardson supported that position. She was, however, influenced not just by an assessment of likely noise annoyance, but by her perception of what the community expectation would be about the way a private airstrip would be operated and by her perception of what would be sufficient for Mr Toole, having regard to the historical use. Her perceptions in this regard fall outside her expertise.

Dr Thorne, having considered the arguments for flexibility on the grounds of safety,[112] was prepared to be more flexible than the Council’s conditions, but not as flexible as Toole wishes. It is difficult to see why an acoustic expert should change his professional view about the acceptable number of movements in order to accommodate an operator’s desire for flexibility. Insofar as daily fixed wing movements are concerned, he attested that[113]:

“… I was happy with two per day. Three is where I’d say is the – I would believe would be the maximum I’d expect to see. Five, I think, is getting to be too many. But that’s simply because I believe the sound is intrusive.”

[112]T3-18.

[113]T3-25.

Dr Thorne’s view that five takeoffs in one day would give a sense of annoyance was explained however, by his impression of what the Levers and Wards would accept as follows:[114]

“I’ve had the opportunity to talk with Mr and Mrs Lever. I’ve seen the DVD of previous flights and I’ve got a thought of what sound levels we’re getting from that. I’m conscious that this is a source of noise that’s come to the residents, not like under an Australian Standard where you go – where the people go to the noise. The noise has come to the people. But I am just trying to make my assessment on they seem to be reasonable people, if I can put it that way; and also Mr and Mrs Ward. The – I got the distinct feeling that one or two flights per day was acceptable, not liked but possibly acceptable, and I could stand to be corrected there. And that’s why I believe that five would be going over the limit – sorry, over acceptability, except on those days where it’s been clearly advertised in advance. And I am just – I don't wish to infer or put into any words that my opinion is correct in accordance with what Mr and Mrs Ward may feel, but I just – that was my feeling.”

[114]T3-44.

Ms Richardson pointed out that, without a weekly maximum, there could be movements in any given month, which she considered could be unacceptable.[115]
[115]T3-51.

On the whole of the evidence I find that:

1. The use of the airstrip would cause adverse noise impacts;

2. Those adverse impacts could potentially be kept within reasonable bounds by controls on the number of movements, but the evidence does not positively persuade me that the quantum of the movements sought would be acceptable;

3. I am not persuaded that the “flexibility” sought by Mr Toole within the monthly, quarterly and annual limits adequately protects residents from annoyance from significant numbers of movements on a regular basis;

4. If flexibility were to be provided, whilst not unduly impacting upon the acoustic amenity, significantly more stringent limits to those proposed by Toole would be required.

5. If sufficient limits on movements were applied, in conjunction with the other restrictions proposed, there would not be justification, on acoustic amenity grounds, for the additional controls proposed by the Council to restrict Toole to a “personal use” facility.

Enforceability

It has already been observed that the Toole proposal relies upon operational controls to reduce the obvious potential for amenity impacts arising from the proximity of the airstip to existing residences. It is, of course, not unusual for an approval to be given subject to conditions, including conditions which require the ongoing management of activities designed to ensure the acceptable operation of a facility. Indeed, the types of controls which have been postulated would be imposed in the event of an approval of this facility. It is appropriate however, in deciding whether to grant an approval, to consider the nature and implications of the operational regime upon which reliance is to be placed.

Mr D Brown expressed concern about the complexity of the management plan and the enforceability (in a practical sense) of the proposed conditions. One of the complications is that the activities to be controlled include activities not just of the operator, but of those who are permitted to use the airstrip. Further, the controls relate not just to on-site activity, but to what happens in the sky beyond the site boundaries. As Mr D Brown put it:[116]

“If the conditions cannot be, or would not be complied with, then it becomes a task for the nearby property owners to attempt to monitor, and in due course, a task for the Council to attempt to monitor and ensure compliance with the conditions. In this instance, compliance with the conditions relies upon the behaviour of third parties, and the type of use involved is distinct from uses and activities which are conducted in-situ which are more amenable to review and contact with owners and operators at the time the event is occurring, and can be more readily and successfully enforced.”

[116]exhibit 9 paragraph 209.

Untoward “on ground” activities could be the subject of complaint. The proposed management plan provides for an incident register and a complaints register and protocol.[117] Insofar as such activities occurred near the hangars they might also be caught on the proposed CCTV system (discussed below).
[117]exhibit 72 s 4.10,4.11.

As to levels of use, there is to be a register of those who store aircraft in the hangar or are expected to use the airstrip more frequently than once per month. A flight log is to be maintained. Further, it is proposed that:[118]
[118]exhibit 73.

“7.18 A closed circuit television camera system must be maintained at the premises at all times, which must:

7.18.1 monitor and record each Fixed wing aircraft and Helicopter in the vicinity of the hangars.

7.18.2 store data for each of the following three month periods in a calendar year:

(i) 1 January – 31 March;

(ii) 1 April – 30 June;

(iii) 1 July – 30 September; and

(iv) 1 October – 31 December.

7.18.3 If, during any three month period, a request in writing is made for the stored data for the current period, a copy of that stored data must be provided to Council, within 10 business days.”

As Mr Reynolds pointed out,[119] the CCTV system would allow for the accuracy of the flight log to be investigated.

[119]T8-65.

The above are sensible and helpful mechanisms, but they (in combination with other proposed measures) do not entirely obviate difficulty for the residents. Obviously, residents would not want to be left in a situation where they do not know, and cannot themselves reasonably ascertain, whether restrictions are being exceeded such as to warrant a complaint to the Council, to trigger an investigation of the flight logs, checked against CCTV footage.

Insofar as daily maximums are concerned, it should be easier for residents to know whether there has been a breach on a given day. The situation is not so straightforward however, in relation to the other controls on movements.

A resident could not know whether the airstrip is being overused for a given period, until the time during the period (be it monthly, quarterly or yearly) when the aggregate maximum number is exceeded and would only then know if they have kept a comprehensive record of the movements for that period. It would be unrealistic and overly burdensome to expect residents to sit at home diligently observing movements and keeping accurate logs (as indeed the Council suggested to Mrs Lever in the past[120]) in order to ascertain, at the end of any given period, whether the controls were exceeded, such as to warrant a complaint. I note Mr Ward’s evidence[121] that:

“… as neighbours, we are the ones that would be required to monitor aircraft movements, because the Council can’t. I know from past experience that we will be left thinking about when the next plane will come, how many there will be that day (especially on weekends) whether they will fly over our home, whether our livestock will be affected, and even if a plane will crash.”

[120]T8-61.

[121]exhibit 29 paragraph 33.

There is a greater difficulty when it comes to the designated flight paths, adherence to which is an important aspect of controlling potential adverse amenity impacts. The proposed management plan and conditions of approval are formulated to ensure that pilots are made aware of the designated circuits and the need to comply with them. It is then assumed that pilots, being trained and used to following rules and regulations, will comply.[122] Pilots who have previously failed to comply with the management plan are not to be authorised to use the strip. It should be noted however, that:
[122]T6-25.

(1) the management plan is complicated. Indeed Mr Tonkin described it as “quite complicated in comparison with almost any other one that I’ve seen”, and

(2) the flight paths variously require turning manoeuvres (see e.g. Aircraft Circuit Runway 09 and 27) or the adoption of something other than a direct approach (Runway Circuit 25) to achieve the required lateral separation.

(3) The use of Runway Circuit 27 requires quite a precise path to be taken in order to pass between the 800 foot lateral separation from the Ward and Miller residences.

Other than for direct overflying of a residence, it would be difficult, at the very least, for a resident observing a flight to know the degree of lateral separation being achieved or to prove non-compliance.

The Council’s desire to limit the use of the airstrip to Mr Toole, his friends and those doing business with him would also create difficulties. Without investigation a neighbouring resident is not to know the purpose of the journey undertaken by someone using the strip.

Need/Benefit

The nature of the facility, being a private airstrip to facilitate a limited number of movements by those the operator at the time chooses to permit to use it (for whatever their purposes might be), limits the potential of the facility to play a significant role in terms of fulfilling any substantial public or community need or in providing a benefit of significance. It has already been observed that the facility:

(i) is not to be open for use, as of right, to the community or any section of it (permission of the operator being required);

(ii) is not limited to flights for any particular purpose;

(iii) is not needed for Toole’s rural business, although it is possible that it might be used for some flights associated with that business;

(iv) might potentially be used by someone for a flight connected with the conduct of a rural business, but in substance is not developed to support preferred uses in the zone.

The assertion by Mr Ovenden that the facility would provide an “indirect way of advancing the rural economy” was without substantial foundation and even he described that fact as “not strong.”[123] Similarly, whilst in a general sense, viable cattle operations have the potential to create economic demand for services and supplies in the local area, the evidence does not justify a conclusion either that the airstrip is needed to support the viability of Toole’s modest cattle business or that its provision would have any significant effect in creating economic demand for services and supplies.
[123]T9-25.

Airstrips in remote rural areas can provide a benefit in overcoming the tyranny of distance, but the subject locality is hardly remote, being relatively proximate to Rockhampton.

Those in need of landing facilities for light aircraft and helicopters already have a range of options. Mr Tonkin make reference[124] to seven private or public airstrips within 30 kilometres of the site. They are:
[124]exhibit 12 page 20.

(a) Mill Iron (1.5 kilometres);

(b) Rockhampton Airport (24 kilometres);

(c) Hedlow Aerodrome (16 kilometres);

(d) an unnamed aerodrome near Hedlow Aerodrome about which nothing is known (15 kilometres);

(e) Cawarral Aerodrome (10 kilometres);

(f) Emu Park Aerodrome (15 kilometres), and

(g) Great Keppel Island Airport (30 kilometres).

Mr Tonkin drew particular attention to the facilities at Rockhampton, the publicly available aerodrome (outside controlled airspace) at Emu Park and the Hedlow Aerodrome in drawing the conclusion that, given the existing facilities and the intended operation of Tungamull, there is no public or community need for the airstrip.[125]
[125]exhibit 12 page 29 paragraph 5.2.7.

Mr Toole and the witnesses called by Toole[126] made criticisms of existing facilities. For example, Hedlow has a semi-sealed strip with loose stones (with the prospect of damage from flying stones). Emu Park is not well maintained, not fenced, and has no secure hangar space or refuelling facilities. Rockhampton aerodrome is in controlled airspace, charges fees, involves leaving aircraft in the open[127] and is sometimes subject to restrictions due to military operations. Mill Iron is short and exposed to cross-winds (although that is not a difficulty for helicopters and Mill-Iron has been used in the past for fixed wing aircraft) and so is unsuitable for inexperienced pilots.
[126]including Mr Jones – see exhibit 13.
[127]although there are roofed sections.

The Emu Park airstrip has a Special Purpose zoning. Whilst Mr Toole regards Emu Park airstrip as dangerous, he agreed that Emu Park was a popular airstrip, and although it was not used every day of the week, it probably gets “quite a bit of use on the weekends.” People fly from Rockhampton, and the Aero Club go there and have regular “sorties.”[128] Mr Toole’s evidence about Emu Park was as follows:

“The Emu Park airstrip has been there a very long time and has been used extensively by locals. The Rockhampton Aero Club regularly have – taken all their aircraft down there and other members that have their own aircraft … they do go down there quite regularly.”[129]

[128]T7-25/13-22.

[129]T4-92/22-37.

Captain Jones’ evidence that Emu Park was boggy when he inspected it arises from the fact, which he had not appreciated, that he visited after a particularly wet period which included the wettest March day on record.[130] Although Captain Jones sought to contend that the Emu Park airstrip did not comply with particular Standards, he agreed that the Standards to which he referred were different and far more stringent than those which were applied to the private strip at Tungamull.[131]
[130]Exhibit 45.
[131]T5-36/4-28.

Hedlow also has the benefit of an existing approval. Mr Tonkin carried out an inspection of the Hedlow airstrip and concluded (and I accept) that its surface was satisfactory.[132]
[132]T5-70/14-30.

I have no doubt that, if it were permitted to continue, the Tungamull airstrip would hold its own attractions. As was pointed out for Toole, these include the provision of a grassed airstrip, outside of controlled airspace, with east/west orientation suitable from the perspective of flyers, together with fuel facilities and secure fully enclosed hangars without landing fees. That combination of facilities, in the one location, is not currently available.[133]
[133]see Jones – exhibit 13 page 27.

Mr Toole and a handful of his acquaintances gave evidence of the relative attractions of the Tungamull airstrip, from their perspective, but there is not a dearth of facilities. Small aircraft have frequented the region for many years. Captain Jones agreed that anyone flying in to the region, for whatever purpose, can obtain fuel en route.[134]
[134]T5-37/37-40.

As for the Toole acquaintances who gave evidence:

(i) Mr Bate is a grain grower and beef cattle producer from Gindie, who owns a Cessna 182, is a member of the Cessna 182 Association (through which he met Mr Toole) and owns a holiday unit on the northern side of Yeppoon. He visits Rockhampton for business as well as pleasure. He considered that the subject site was “just as convenient to go to” as the Rockhampton Airport for business trips.[135] He prefers not to use Rockhampton Airport for a range of reasons.[136] When he visits his unit, on the occasions he does not drive, he has landed at the private airstrip at Hedlow,[137] and also a small strip to the west of Yeppoon.[138] He has also landed at the public strip at Emu Park several times;[139]
[135]T4-63/4-7.
[136]Exhibit 19 paragraphs 19-22.
[137]Exhibit 19 paragraph 23.
[138]T4-64/12-16.
[139]T4-66.

(ii) Mr Warburton resides at Zilzie, relatively close to the Emu Park Airstrip and was in the aviation industry for most of his working life before retirement. He would like to hangar a plane at Tungamull and use the subject land as a base to travel from, and to fly probably about once a week. He would use Emu Park if he had to.[140] His intention was that his use of the facility would be for his own purpose, not for any purposes associated with doing business, or socialising with, Mr Toole.[141] He purchased a plane (which is being built) with the knowledge that the subject application may not be approved. He regards Emu Park as unacceptable but decided that he could park the plane at Rockhampton if necessary.[142] He would also look at Hedlow if it were available.[143]
[140]T4-12/3-4.
[141]T4-16/1-7.
[142]T4-17/29-30.
[143]T4-17/33-38.

(iii) Mr Lewis is a retiree who owns a Cessna 182, which is hangared at Southport Flying Club’s “Mason Field.” He is the treasurer of that club as well as being a friend of Mr Toole. He has a son who lives in Mackay and would like to use Tungamull to visit the Tooles as a refuelling and social stop. He has used Tungamull once, but has otherwise used Mill Iron.[144] He has also flown into Rockhampton on occasions.[145] His difficulty with the Rockhampton was its $40 landing fee. He considered that “exorbitant”[146] notwithstanding the context of his allowance of $10,000 to $15,000 per annum in maintenance and other costs.[147]
[144]T4-20/36-39.
[145]T4-21/12-13.
[146]Exhibit 20 paragraph 16(b).
[147]T4-24.

(iv) Mr Bartrop is a retired air force pilot and friend of Mr Toole. He has a daughter-in-law and grandchildren who live near Emu Park. He has a light sports aircraft which is unable to use Rockhampton airport. He does not regard Emu Park or Hedlow as suitable,[148] but has used the Mill Iron strip.[149]

(v) Mr Handley resides at North Rockhampton. He owned a Cessna 182 which he flew occasionally. He previously hangared his plane at Tungamull and later at Iron Mill before selling it. He does not currently have a plane.

[148]T4-27.

[149]T4-27/11.

Subject to the operator’s approval, the facility would be available for a limited number of “fly-ins” for aviators who want to socialise, but that is not a matter to which I would attach great weight in terms of need/benefit.

Notwithstanding the attractions of Tungamull for those who might be permitted to use the proposed private airstrip, evidence does not persuade me that there is an economic demand from residents of the area for the facility nor that there is anything greater than a minor need for the facilities otherwise.

A matter of public benefit upon which reliance was placed, was the willingness of Toole to make the airstrip available for use at no cost in emergency situations, which are proposed to be defined as follows:

“1.10.7 Emergency Circumstances means:

(i) a meteorological event that leads to the closure of the Rockhampton Airport;

(ii) an emergency recognised by the Local Disaster Management Group or a State Agency that results in a genuine need for the use of the airstrip; or

(iii) a genuine need for a landing at the airstrip that is made to ensure the safety of an aircraft (and any associated take-off).”

It was this benefit upon which the Council relied for tipping the balance in favour of approval, notwithstanding conflict with the Planning Scheme, so long as the approval was conditioned, as it contends for, with the intent that it operates as a “low-key” facility for Toole.

There is an obvious benefit in having an appropriate facility in times of emergency, but:

(a) Mr Tonkin’s research indicated that although Rockhampton Airport was closed during January 2011, and for 2 days in January and February 2013, the last time the airport had been closed prior to then was 20 years earlier;[150]
[150]exhibit 12 paragraph 4.5.4.

(b) the evidence does not justify a conclusion that the availability of alternate sites is so unacceptably lacking at present as to regard the availability of Tungamull as a matter of strong benefit. Mill Iron was available to accommodate aircraft during the flood event at Rockhampton.[151] Others went elsewhere, including Emu Park and Hedlow. As Mr Toole put it, “there were aircraft scattered all over the countryside.”
[151]exhibit 23 paragraph 104, 105.

(c) there is no evidence of any support for the proposal on the part of any agency;

(d) emergency helicopters do not require the airstrip at all, but have countless other alternatives, including Mill Iron. Captain Jones confirmed that rescue helicopters would have no difficulty at all landing in the locality.[152]

Other Grounds

[152]T5-40/16-36.

Grounds to justify approval notwithstanding conflict with the Planning Scheme must be matters of public interest. They do not include the personal circumstances of an applicant owner or interested party.[153] I have already dealt with matters of need and benefit and found them to be of minor weight only in the context of the subject proposal.
[153]Schedule 3 of SPA.

In the joint town planning report Mr Reynolds relied on other “grounds” as follows:

(a) It is reasonable to facilitate the use of aircraft in the planning scheme area and the Rural zone is the most appropriate zone within the planning scheme area for that purpose;

(b) The use is of a scale, intensity, character and amenity consistent with that which can reasonably be expected in the Rural Zone, having regard to the consistent uses in the Rural Zone (including crop spraying establishments and Major Utilities) and that private airstrips and the flying of aircraft in rural settings is not uncommon or unexpected;

(c) The proposed use supports the cattle grazing and breeding use on the site, which is a preferred use with the Rural zone, because cattle grazing and breeding commonly requires attendance at agricultural field days, cattle sales and remote cattle properties;

(d) A viable cattle operation in turn creates economic demand for services and supplies in the local areal;

(e) The proposal only gives rise to local issues for consideration in this localised part of the Rural Zone. It does not cut across any planning strategy relevant to land use structure or environmental sustainability of the Shire;

…[154]
[154](f) relates to emergency use, which has been discussed earlier.

(g) Use of the airstrip will relieve demand and congestion at other facilities;

(h) The airstrip will be maintained at no cost to ratepayers or taxpayers because it is a private facility;

(i) The airstrip will be managed in accordance with a detailed management plan, resulting in no unacceptable impacts;

(j) The airstrip provides for the landing, take-off, storage and refuelling of private light aircraft outside controlled airspace;

(k) The airstrip will be safer than the existing Mill Iron Airstrip and other airstrips in the vicinity;

(l) The development provides a high level of safety and security for the storage of light aircraft, as the hangars are fully enclosed and cyclone proof;

(m) The development provides a high level of safety for the storage and dispersal of aviation fuel, via a regulated and fully controlled system; and

(n) The land is of sufficient size to accommodate associated vehicle movements without formalised parking or movement arrangements.

In that regard (retaining the sub-paragraph numbering):

(a) this is an argument which has been addressed earlier;

(b) reasonable expectations have been examined earlier;

(c),(d) for the reasons discussed earlier there is little to support the proposition that the proposal would significantly assist Mr Toole’s cattle grazing and breeding. Similarly there is no basis to conclude that it would have any significant effect on economic demand for services and supplies in the area;

(e) this goes to the scope and gravity of the conflict, particularly in relation to conflict with the DEOs and has been acknowledged earlier;

(g) there is no evidence of any serious congestion or demand at “other facilities.” Under cross-examination Mr Reynolds said that he did not rely on it.[155] It is regrettable that he asserted this “ground” despite being unaware of any demand and congestion problems;
[155]T8-80.

(h) it would be perverse if any private facility were not maintained at no cost to the public. Under cross-examination Mr Reynolds linked this “ground” with the emergency use ground[156] (discussed earlier);
[156]T8-91.

(i) the potential for amenity impacts to be controlled may be considered.[157] The controls proposed by Toole are insufficient. Although it would be possible to apply stricter controls, aspects of the controls would be difficult to enforce at a practical level.
[157]Lockyer Valley Regional Council v Westlink (No 3) (2012) 191 LGERA 452 at 463-4.

(j),(k),(l),(m) these subparagraphs relate to the relative attractiveness of the Tungamull strip compared with other facilities. That topic has been considered above in the context of need/benefit;

(n) Mr Reynolds rightly retracted this as a “ground” in the course of cross-examination.[158]

[158]T8-93.

In the same joint report Mr Ovenden referred to four grounds as follows:

(a) The use contributes to the advancement of the planning scheme intent for rural areas by providing a rural support activity

(b) An on-site water supply will be available for fire fighting purposes.

(c) The proposed use does not prejudice the ongoing or future potential for agricultural activities to take place on the land; and

(d) The site provides the community with an emergency landing location at no cost. Mr Ovenden defers to the aviation experts as to the acceptability of other existing airfields as emergency landing destinations, but understands some may be subject to flooding and in any event, considers an additional facility as a benefit for the community.

The first and last of those have been dealt with earlier. The third is, in substance, an acknowledgment that there is compliance with the Planning Scheme in that respect.[159] In the course of cross-examination[160] Mr Ovenden rightly conceded that the second “ground” was not strong. Indeed he said:

“I could be convinced not to rely on it, yeah. I don’t think it is a ground – a serious ground in the public interest…”

[159]T9-40.

[160]T9-39.

Overall, the grounds to support approval notwithstanding conflict are relatively weak.

Consideration

For the reasons discussed:

1. the proposal does not conform with all aspects of the DEOs, but will not have any material effect on their achievement at a shire wide level;

2. the proposal conflicts with the provisions relating to the Rural zone. In particular it is neither a preferred use nor one which is a consistent use developed to comply with the criteria set out in O2 (even if it was assumed that the imposition of stricter controls on aircraft movements brought acoustic amenity impact to within acceptable limits). Further, even if it were operated in order to minimise adverse impacts (and Toole’s proposal does not achieve that), the evidence does not establish that it has been located to minimise adverse impacts on the amenity of adjacent properties as required by O5. The extent of conflict is not merely minor. It is significant;

3. The location of the airstrip is poor, in terms of respecting amenity and has the potential to cause unacceptable impacts;

4. approval of the airstrip would likely result in some adverse amenity consequences both in psychological and direct terms;

5. the likely psychological impacts are part of the impact on amenity but are not impacts to which I would ascribe determinative weight;

6. I am not persuaded that the operational controls (including as to numbers of movements) proposed by Toole are sufficient to ensure that adverse impact on acoustic amenity is kept within reasonable or acceptable limits (including having regard to reasonable expectations);

7. whilst more stringent controls might, if observed, constrain impact on acoustic amenity to within reasonable or acceptable limits:

(i) the approval of a proposal which is poorly located in reliance on operational controls only is far from ideal and is unsupported by the Planning Scheme, and

(ii) the evidence does not give any real confidence about the point at which the frequency of movements crosses the acceptable/unacceptable threshold in terms of impact on acoustic amenity;

(iii) the operational controls would, at least in some respects, be difficult to monitor and enforce at a practical level;

8. the grounds in support of the application notwithstanding conflict are weak.

Whilst I am conscious that grassed airstrips, such as that proposed, have the potential to be located in a rural area without in fact unduly infringing on the landscape setting or rural amenity and that operational controls can be imposed to reduce direct adverse acoustic amenity impacts, I nonetheless am left short of being persuaded that the balance in this case lies in favour of the approval of the development either as proposed by Toole, as proposed to be conditioned by the Council or even if the number of aircraft movements were more tightly controlled.

Conclusion

Toole has failed to discharge the onus of showing that the application should be approved. The submitter appeal will be allowed. It is unnecessary to deal with the disputes as to conditions. The conditions appeal will be dismissed on the limited ground that there will be no development approval.

CITATION:	Ward & Anor v Rockhampton Regional Council & Anor [2014] QPEC 67
PARTIES:	JEFFREY GORDON JAMES WARD and LEANNE MAREE LEVER (appellants) v ROCKHAMPTON REGIONAL COUNCIL (respondent) and R C TOOLE PTY LTD (co-respondent) R C TOOLE PTY LTD (appellant) v ROCKHAMPTON REGIONAL COUNCIL (respondent) and JEFFREY GORDON JAMES WARD and LEANNE MAREE LEVER (co-respondents by election)
FILE NO/S:	205 of 2013 and 4896 of 2012
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	28 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	17, 18, 19, 20, 21, 24, 25, March, 26, 27 May, 6 June 2014 with further submissions received to 3 July 2014
JUDGE:	Rackemann DCJ
ORDER:	1. Appeal no. 205 of 2013 is allowed and the development application is dismissed. 2. Appeal no. 4896 of 2012 is dismissed on the limited basis that there will be no development approval.
CATCHWORDS:	PLANNING AND ENVIRONMENT – application to regularise use for airstrip and associated facilities in the Rural Zone – airstrip proximate to neighbours – submitter appeal against approval – applicant appeal against conditions – whether conflict with the Planning Scheme – whether use would adversely affect livestock – whether use is a major utility as defined – meaning of “navigation aids” – whether it satisfies criteria for consistent use – whether “recreational activity” – whether “community facility” – whether compatible with surrounding Rural Purposes – whether developed to support preferred uses – whether adverse impact on perceptions of amenity – use of expert and non-expert evidence – reasonable expectations – sufficiency of grounds to warrant approval notwithstanding conflict
COUNSEL:	R Litster QC and N Kefford for the appellant in appeal no. 4896 of 2012 B Job for the appellants in appeal no. 205 of 2013 S Fynes-Clinton for the respondent
SOLICITORS:	McCullough Robertson for the appellant in appeal no. 4896 of 2012 Hopgood Ganim for the appellants in appeal no. 205 of 2013 King & Company for the respondent

Light Plane (take-off)	Helicopter
Lever	74	74
Ward	56	64
Miller	68	71
Collins	72	70