Action Paint Ball Games Pty Limited v Hornsby Shire Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; BGP Property v Lake Macqurie C (2004) NSWLEC 290

Applicant Mr A Galasso, barrister Instructed by LEGAL REPRESENTATIVES: Mr J Hones, solicitor of Hones Lawyers Mr I Woodward, solicitor of Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11188 of 2005 Action Paint Ball Games Pty Limited v Hornsby Shire Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Hornsby Council's refusal of a development application for a leisure tourist facility known as Action Paint Ball Games.

2 The subject land is lot 22 in Canoelands Road. It has a frontage to Canoelands Road of some 95 m and to Old Northern Road of some 153 m. On the Old Northern Road, opposite Old Northern Road, is the local government area of Baulkham Hills and the suburb is known as Glenorie.

3 The subject site is in the area known as Canoelands. The site is an irregular shape and is some 14 ha. The surrounding area can generally be described as rural residential. The zoning of the subject area has a minimum allotment size of 10 ha.

4 There are many other properties on Old Northern Road in the vicinity of 5 ha and the Rural Bushfire Brigade Service is located in Canoelands Road opposite the subject site.

5 The development application includes the demolition of sheds on the subject property and retention of a cottage that would be used as a caretaker's residence on the subject property. All vehicular access is from Canoelands Road.

6 The proposal is for the carrying out of a recreation facility under the Hornsby LEP 1994 and the subject site is zoned Rural AR known as large holdings rural landscapes. The facility is for some five playing fields and the paint ball games are played in teams such that there is about 20 to 30 persons per playing field. The duration of each of the games is 10 to 15 minutes and they are supervised by referees. The paint ball is a round thin skinned gelatine capsule, non-toxic, non-caustic, water soluble and biodegradable and the paint guns have an effective range of 40 m.

7 There are a number of issues that have been identified by the council in these proceedings and there are Court-Appointed experts to assess some of the areas of speciality.

8 Dr Perrens is the Court-Appointed expert for stormwater effluent disposal, Dr Peter Smith is the Court-Appointed expert in ecology, Mr Graeme Pindar is the traffic consultant and Mr Gross is the acoustic engineer that gave evidence in the proceedings.

9 The applicant also provided a landscaping plan and Ms Narelle Sontar gave evidence to the Court. The council's planners Ms C Williams and Mr Fryar also provided evidence to the Court. Mr Glendinning, the Applicant's planner, provided evidence to the Court and the Court also had the benefit of a number of expert reports on planning and on the landscape issues.

10 The Court met on the site and when I returned to the Court I provided on the record a summary of all the objections received to the development proposal. It is also noted that there were a number of supporters who gave evidence to the Court and their comments were also recorded.

11 The residents who oppose the development are concerned about the quiet rural lifestyle being interfered with in terms of their amenity and the noise from the subject development. They are also concerned about traffic that would be generated by the proposed development and that it would not be consistent with the rural lifestyle they have enjoyed over many years.

12 The Court heard from supporters in terms of it would provide for a recreation facility within the area and also the employment opportunity for locals.

13 The Court undertook an extensive site inspection of the subject site and its environs and there is no dispute that the subject site is a fragile environment. The site inspection included understanding the location of the threatened species that are existing on the subject site. I also had the opportunity of asking the Court-Appointed experts on the view and in Court for their considered opinion on many of the issues raised.

14 When the Court met on site the council had resolved that, provided the applicant was prepared to comply or rather accept the conditions as they had drafted, they would enter into consent orders. However, the applicant did not accept the terms of some of the conditions. At the end of the day there were a number of conditions contested and they go to the location of the playing fields and also in terms of the other experts' reports concerning noise.

15 The Court adjourned last Friday to allow the noise expert to provide additional evidence to the Court because the findings at that point appeared to be rather inconclusive because of additional material provided by the applicant in terms of what was observed during the noise testing. The acoustic engineer, Mr Gross has now provided an additional report to the Court, known as Exhibit Z, and this provides for an assessment of the Rouse Hill activities where there is a similar paint ball establishment and the whistles that are required for the games were also tested at the subject site in terms of the nearest residence located on Old Northern Road and also in Canoelands Road.

16 The Court has heard further evidence from Mr Gross this afternoon. Mr Gross is of the opinion if what is known as the 'duck quackers' or 'duck callers' are used on the subject site he is satisfied that this will not impact on the amenity of the properties on Old Northern Road and Canoelands Road.

17 There were other whistles also tested on site. The Court does not need to describe these but at the end of the day Mr Gross said that the duck quackers were not intrusive and that they were barely audible and, in his opinion as an expert, would not interfere with the amenity of those properties. He had regard to background noise that is the traffic on Old Northern Road and there is a difference in terms of background noise for the weekday and weekends.

18 The Court also heard evidence from Dr Perrens, given the environmental fragility of the site, and the fragility of the site is a matter that was also raised by Mr Kiernan, who gave evidence to the Court and he is opposed to the development because of the fragility of the site and the impact on the quiet rural nature of the area. Dr Perrens provided expert evidence to the Court. He was also asked a number of questions by the Court in terms of the proposed development and its impacts on the receiving waters and to ensure that water quality is not degraded in terms of the larger catchment area.

19 Dr Perrens was also asked questions about the stormwater disposal, the effectiveness of the dam and the effectiveness and capacity of the effluent disposal systems that he had proposed and the maximum numbers of persons that could be accommodated on the facility in terms of disposal on the subject site. As such he has recommended the maximum numbers of persons that are recommended for the activities on any one day and week.

20 The Court must assess the development application in the context of the controls and, in that regard, the subject site must be considered against the Hawkesbury Nepean SREPP 20 and this requires that there be consideration to environmental matters.

21 The Hornsby LEP 1994, as I stated, has a number of objectives for the zone. These are: "(a) To restrain population growth and maintain the rural character of the area.

(b) To provide for a range of compatible land uses, including agriculture, which maintain the rural environment of the area.

(c) To ensure development is carried out in a manner that improves the environmental qualities and is within the servicing capacity of the area."

22 The subject development application is categorised as a 'recreation facility', a permissible use in the subject zone. The other planning guidelines the Court must have regard to is the Rural Lands Development Control Plan of the council. This is a comprehensive document and, while I will not cite large extracts from it in this extempore judgment I have considered it in my assessment of the development application.

23 There are a number of elements and objectives contained within the Rural Lands Strategy which include an environmental strategy and it also describes the development application process and the requirements for development applications. In the Rural Strategy includes: "to maintain the rural character of the area and promote the conservation and proper management of existing or potentially productive agricultural land."

24 The economic strategy component is to promote a range of employment opportunities within the rural area to promote the orderly and economic use and development of land by providing direction for housing, business, tourism, et cetera.

25 In terms of land uses in the DCP for tourism the objectives are: to provide controls to mitigate the potential social environmental impacts of tourist facilities, and there are a number of prescriptive measures, including the performance criteria that tourist facilities should be compatible with the rural character, which attracts visitors to the rural lands and tourism should not impact on the amenity of adjacent properties. There is also an element for urban streams to retain and enhance the water quality.

26 The 'flora and fauna' element is to protect bushland, significant flora and fauna habitats and wildlife corridors from the impacts of development. And then there are elements with respect to landscaping, to provide attractive landscapes consistent with the visual landscapes in rural lands. The document also provides for an element on acoustics "to provide a reasonable acoustic environment for residents". Other elements include waste minimisation and management.

27 Other relevant controls include the DCP for car parking and the DCP for outdoor advertising signs. I will deal briefly with the outdoor advertising sign. There was an amended application in terms of the signage and Mr Glendinning and Mr Fryar have today conferred in terms of what would be appropriate signage for the subject site to ensure suitable identification for the facility and also to ensure that it did not impact in terms of the rural residential character of the area. Clearly, a sign is one that identifies the subject property and provides notice in terms of people that would need to turn off Old Northern Road to the parking area for the paint ball facility and the parking area located off Canoelands Road.

28 Dr Smith is the Court-Appointed expert on ecology and he identified for the Court, the area that would need to be precluded from the participants of paint ball activities and identified, for all intents and purposes an exclusion zone which would be required to be fenced with a 1.2 m fence with four strands of wire to ensure that the threatened species located on the site are not threatened. His report details a seven part test in terms of the Act and he is satisfied that the proposed development will not impact on the threatened species, given the conditions he has proposed and given the the flora and fauna are vegetation management plans in Exhibit F.

29 The species that are on the subject site are found in other locations. However, Dr Smith has taken a view of the site in terms of the site itself being the locality and in his opinion the development with conditions can sustain the species that are currently located on the site and he does not rely on the existence of the species outside the boundaries of the site. He is satisfied that none of the species would be threatened on the site by the proposal.

30 The applicant has accepted Dr Perrens' conditions, in terms of the requirements for vegetation and flora and fauna management on the subject site and in terms of the exclusion zones, to ensure that the threatened species or the viability of the threatened species on the subject site itself is maintained.

31 In my consideration of the application I must have regard to the planning regime or the planning framework which the council provides in terms of its controls. That is, the subject site is one that permits recreational facilities and the guidelines that are contained within council's DCPs must be given 'real genuine and proper consideration' in the court's assessment of the application in terms of the controls of council or the guidelines of councils being a focal point for assessment, as identified in the judgment of Zhang v Canterbury, Court of Appeal judgment, where the Chief Justice of New South Wales states that the DCPs must be a focal point for consideration.

32 The residents' concerns are ones that must be carefully considered in an assessment of the application and clearly the fact that the facility is permissible must be looked at in the context of ensuring that the residential amenity and there is an emphasis within the rural lands DCP about ensuring that the amenity of adjoining properties or residents is not unreasonably impacted.

33 There are also requirements to maintain the ecological environment and threatened species of the subject site. It is noted that the subject site today has large cleared areas which, I am advised, was for an orcharding activity which did not commence on the subject site but nonetheless there are large cleared areas and, as stated and which has been taken into consideration by the various experts, the fragility of the site must be given careful consideration in terms of the development not impacting on that environment must be considered.

34 At the same time the rural lands DCP clearly envisages employment opportunities and tourism within the area. It is seen that there are many rural residential properties, some on smaller allotments, some very large allotments.

35 I will say at this point in my proceedings that I must also assume that the conditions in a development consent will be complied with by an applicant and the conditions are attached to developments for a very clear purpose in terms of identifying the areas of concerns and the matters that must be taken into consideration, not just in the development of the site but also in the operation of the facility.

36 The Court has heard the concerns of the residents and when one is locating a recreational facility within an area that has a number of residences, in the context of a rural residential area, one must be assured that the conditions of consent and the operation of the activity do not unreasonably impact on the amenity of the residents. It is a fact that development has some impact but the role of the Court is to assess whether that impact is reasonable and whether it is consistent with and contemplated in terms of the council's planning regime.

37 Council's planning regime does not prohibit the proposed activities and I am satisfied that, with the conditions that have been proposed and now agreed to, that the proposed development is one that would be contemplated in terms of council's controls and guidelines. I am satisfied with the conditions that have been proposed to ensure that the environmental concerns, the fragility of the environment, are considered in the development and also in its long term maintenance that the proposal is satisfactory. In terms of the objectors' concerns, while there will be a change in the environment it is not a change that would not be envisaged in terms of council's controls.

38 The test is not change but whether the proposed development is one that is compatible with the rural area and I am satisfied in terms of the objectives of the zone that the proposed development is not inconsistent and can be accommodated within the zone with the objectives of the zone complied with.

39 The controls include the principles of ecologically sustainable development, that there is no adverse impact on the water quality of receiving waters and the flora and fauna and that the impacts can be managed. In considering the principles of ESD and the planks of ESD. I refer to the judgment of BGP Properties v Lake Macquarie Council (2004) NSWLEC 399 where the then Chief Judge of this Court, McClellan CJ, stated: "Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment."

40 I am satisfied that, with the guidance of this judgment, the proposed development is worthy of approval and the impacts can be managed.

41 The concerns that have been expressed to the Court have also been considered in terms of the comprehensive set of conditions that have been formulated for the development and clearly the development must comply with the conditions for it to effectively and harmoniously coexist with the existing environment in terms of not unreasonably impacting on threatened species and the rural environment and its character.

42 The site will contain the impacts of the proposed development in terms of the activities being clearly confined to certain areas of this relatively large site. I am satisfied that the adverse impacts are reasonably well managed within the boundaries of the site. That does not mean that there will not be some noticeable difference of the use for the subject site. In terms of the cars that access the site, the traffic generation would not warrant refusal of the application and, in this regard, Mr Pindar provided advice to the Court. He is satisfied that the carparking on the subject site and the bus turning bays and circles are ones that are satisfactory for a development of this nature. There is also provision for overflow parking provided that can be accommodated on the site.

43 At the end of the proceedings there was discussion about whether the buffer landscaping was to be provided inside the site to the exclusion of the road widening area and the applicant has accepted that the landscaping buffer be generally provided within what would be the new boundary of the site once a road widening realignment has taken place in the future.

44 The other conditions are with respect to the noise emission and the independent monitoring that is required and also a noise management plan, which must be prepared to the satisfaction of the council for the regular monitoring to ensure that the amenity of the properties within the vicinity of the subject site is not unreasonably impacted. There are also many conditions with respect to ongoing waste management and landscaping works and drainage for the subject site.

45 The ecological conditions of Dr Smith have also been adopted and these will ensure the sustainability or the viability of the threatened species on the subject site.

46 In my assessment I have genuinely considered all the resident objectors' concerns and, with the development application as amended, I am satisfied that the development will not unreasonably impact with the conditions to be complied with. The residents will have the benefit of sighting those conditions as well and I understand from the parties that the recent Court-Appointed experts' reports have also been provided to the residents.

47 On the basis of the Court's assessment, therefore, the formal Orders of the Court are. 1. The appeal in respect of the property known as lot 22 Canoelands Road, Canoelands, is upheld. 2. The development application submitted to Hornsby Council and as amended is approved subject to the conditions in annexure A 3. The exhibits may be returned with the exception of: the amended plans; A; B; P; R; 9 and 16. 48 Following the conclusion of the hearing the Court requested the applicant to amend the plans to show the revised carparking layout, the revised landscaping and the exclusion zone. Amended plans have been submitted to reflect these matters and this provides greater certainty in the implementation of the development.

      J S Murrell
      Commissioner of the Court
      Ljr/as

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