Clearihan and anor v Cooma - Monaro Shire Council [2011] NSWLEC 1155

Land and Environment Court New South Wales

Medium Neutral Citation: Clearihan and anor v Cooma - Monaro Shire Council [2011] NSWLEC 1155 Hearing dates: 12 May 2011 Decision date: 12 May 2011 Jurisdiction: Class 1 Before: Brown C Decision: By consent, appeal upheld Catchwords: CONSENT ORDERS - development application for a private air strip and storage facility - resident objections relating to noise - visual impact - impacts on lifestyle and amenity - whether proposed conditions are adequate Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 437 Category: Principal judgment Parties: APPLICANT Mr Chris Clearihan and Ms Cheryl Love

RESPONDENT Cooma - Monaro Shire Council Representation: APPLICANT Mr A Seton, solicitor

RESPONDENT Mr A Bradbury, solicitor APPLICANT Marsdens Law Group

RESPONDENT Williams Love & Nicol File Number(s): 10923 of 2010

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to DA No. 66/10 for the use of lot C in DP 334335 at Baroona Road, Michelago, for a private air strip and storage facility. The property has an area of 86.26 ha and a frontage of 1.7 km to the Monaro Highway. The aircraft to be operated by the applicant only from the site are: * 3 x motorised gliders, * 2 x ultra lite aircraft, * 1 Gruman Tiger fixed wing 2 seater, and * 1 Mooney 252 fixed wing 4 seater. 2The storage facility comprises 7 x containers arrange in an L - shaped formation with barrel shaped roofing between the containers to a height of 6.45 m. The storage facility is to be used for the storage of: * a grader, * a bobcat, * a compactor, * a water cart, * 2 x 2 agricultural bikes, * 2 x caravans, * a tractor and attachments, * a box trailer * a car trailer * 3 x racing vehicles and spares, and * other agricultural equipment and products. 3The appeal was subject of a conciliation conference on 1 February 2011 under s 34 of the Land and Environment Court Act 1979 (the Court Act). Some adjoining properties, as well as the site, were inspected and viewed at the on site conference. The conference was adjourned to allow the council to further consider the contentions. The resumed s 34 conference was held by telephone on 22 February 2011 and a s no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 4Prior to the hearing, the parties agreed to enter into consent orders. As I understand, the council's decision to enter into consent orders was based on amendments made to the original application. The principal changes were: * the relocation of the storage sheds to the south of the lot in a location behind a knoll so that the sheds would not be visible from the Monaro Highway; * the provision of mounding and landscaping to screen the sheds from the west; * the main runway being changed to the backup runway that is located further to the east, closer to the Monaro Highway and further from the nearest residential property; * the relocation of the new backup runway further to the north; and * reduced number of flights from 226 to 156 over a calendar year. 5In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (par 36) provides: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval, having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the court to consider making the proposed consent orders; and (iii) the opportunity for any person to be heard of that in the circumstances of the case, notification is not necessary. 6In response to the Practice Note, the council filed a bundle of documents that included the relevant planning controls, some Class 1 appeal documents, including expert noise reports and consultations with the Civil Aviation Authority, the Roads and Traffic Authority and the Rural Fire Service. Letters of objection to the development were also provided, as was the council staff assessment report from 11 October 2010. 7In accordance with the Practice Note, five local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as: * unacceptable noise; * unacceptable visual impacts, * unacceptable impacts on lifestyle and amenity; * whether the conditions of consent are appropriate; and * whether the applicant will comply with the conditions of consent, given past activities on the site. Noise 8The applicant provided three separate noise assessments; one report from Mr Gus Anderson and two reports from Mr Heath Chester with noise measurements taken on 13 June 2010, 16 June 2010 and 17 August 2010 respectively. These reports were considered by the council staff in their report to the council meeting on 11 October 2010 where the officer stated, in part: The noise assessment provided shows that the noise generated by single aircraft movement at the site would not significantly impact on the nearest residents. 9In the absence of any expert evidence to suggest that this conclusion was incorrect, I accept the council officer's conclusion. I am also mindful that these comments are based on the original proposal and given the amendment that now places the main airstrip further away (some 600 m) and behind a knoll, then any noise impacts are likely to be even less than the levels seen as acceptable by the council at the nearest residential dwelling. Visual impacts 10Visual impacts were largely associated with proposed new location of the storage sheds when viewed from the property adjoining to the west. Given the separation distance of around 600 m between this dwelling and the storage sheds and when combined with the proposed landscaping and earth mound, I accept that the visual impact of the sheds would not be a reason to refuse the consent orders. Impact on residents' lifestyle 11The general concern over the impact on residents' lifestyle is, in my view, difficult to support without some tangible, meaningful and measurable impacts. Having found that noise and visual impacts could not support the refusal of the consent orders, the mere presence of planes, particularly given the limitations imposed on their use, is not a reasonable basis for the refusal of the consent orders. Past activities on the site 12Much of the residents' evidence concerned the past activities of the applicant and how the conditions of consent can be enforced if there are breaches. On the first matter, the law is relatively settled, in that past activities are not relevant matters that can be taken into account when determining a development application: see Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 437. In terms of enforcement, the council has adequate power to enforce conditions of consent through different means, depending on the severity of any breach. While the identification of any breach of the conditions of consent may fall on local residents, this is not an irregular or unusual event. Conditions of consent 13The conditions raised by the objectors are: Condition 6 - this condition identifies the number and type of aircraft the subject of the consent orders but was seen to be uncertain and unreliable by the residents. I am satisfied that it is sufficient to allow the proper identification for compliance with the conditions of consent, particularly considering the noise assessment was carried out on the type of plane referred to in the condition. Condition 14 - this condition relates to flight numbers is also acceptable, in my view because of the lack of noise impacts, the overall restrictions on the number of flights per day and maximum annual flights, even though I accept that the potential exists for accumulating some flights based on the requirement for an average of 3 flights per week. Condition 17 - this condition addresses the potential commercial use of the air strip and, in my view ,provides acceptable protection against this potential eventuality, this being a common concern of the residents. I do, however, agree with the residents that the proposed hours of operation are unacceptable, notwithstanding no issue with noise from aircraft. In my view, starting time should be amended to 9.00am on Sundays and public holidays and 8.00am on other days. 14The conditions in dispute between the parties are: Condition 4 - this condition addresses the timing of the agreed intersection works with the Monaro Highway. In balancing the different positions, I accept the applicant's preferred condition 4, in that the roadwork should be completed prior to issuing of an Occupation Certificate rather than an Construction Certificate. Condition 15 - this condition addresses the keeping of log books for the relevant air craft the dispute and I accept that the keeping of a specific log book of aircraft movements to and from the site should be settled in favour of the council, in this case. I do not accept that the preparation of a log book should be any great burden, given the limited number of flights proposed in the application. 15In considering Cooma Monaro- Local Environmental 1999 (Rural) , State Environmental Planning Policy (Infrastructure) 2007 , the information provided by the council and the applicant and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and reasonable to grant the consent orders, as modified by this judgment. 16The orders of the Court, by consent, are: 1. Leave is granted to the applicants to amend the development application to relocate the shipping containers to the southern part of the site in accordance with plans A05, M3 and M4 dated 23 April 2010 (as revised on 7 February 2011). 2. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the applicants are to pay the costs of the consent authority that were incurred in respect of, and proceedings related to, the original development application the subject of the appeal agreed in the sum of one dollar ($1.00). 3. The appeal is allowed. 4. Development Application No 66/10 for the development of a private airstrip and storage facility on the land described as lot C in Deposited Plan 334335 Monaro Highway, Michelago is granted development consent subject to the conditions in Annexure A. 5. The exhibits, except exhibits 3, 5 and A may be returned 6. Other than as provided in order 2 above, there is no order as to costs. ____________ G T Brown Commissioner of the Court