Larry Karlos v Tweed Shire Council; Matthew Karlos v Tweed Shire Council

The site and the locality

1. The hearing commenced with a site inspection. The site is legally described as Lot 1 in DP 735658 with a street address of 477 Urliup Road, Bilambil. It is irregular in shape, with an area of 14.41ha and a frontage of approximately 110m to Urliup Road.
2. The site is intersected by Bilambil Creek, which the driveway passes over to provide access to an existing dual occupancy with associated buildings including a chapel, swimming pool, pool shed and storage tanks. The site is relatively flat adjoining Urliup Road, sloping steeply to the south east.
3. Surrounding land uses comprise rural land holdings used primarily for cattle grazing and residential dwellings.

The planning controls

1. The site is located within Zone RU2 Rural Landscape pursuant to the provisions of Tweed Local Environmental Plan 2014 ("TLEP 2014"). Development for the purpose of "helipads" is a specifically nominated use that is permitted with consent in Zone RU2 Rural Landscape pursuant to the provisions of TLEP 2014. Bilambil Creek is zoned W1 Natural Waterway.
2. A "helipad" is defined as "a place not open to the public used for the taking off and landing of helicopters".
3. Clause 2.3(2) of the TLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives for the RU2 zone are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.
4. Clause 7.8 concerns airspace operations for Gold Coast Airport, and provides as follows: 7.8 Airspace operations (1) The objectives of this clause are as follows - (a) to provide for the effective and ongoing operation of the Gold Coast Airport by ensuring that such operation is not compromised by proposed development that penetrates the Limitation or Operations Surface for that airport, (b) to protect the community from undue risk from that operation. (2) If a development application is received and the consent authority is satisfied that the proposed development will penetrate the Limitation or Operations Surface, the consent authority must not grant development consent unless it has consulted with the relevant Commonwealth body about the application. (3) The consent authority may grant development consent for the development if the relevant Commonwealth body advises that - (a) the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or (b) the development will not penetrate the Limitation or Operations Surface. (4) The consent authority must not grant development consent for the development if the relevant Commonwealth body advises that the development will penetrate the Limitation or Operations Surface and should not be carried out. (5) In this clause - Limitation or Operations Surface means the Obstacle Limitation Surface or the Procedures for Air Navigation Services Operations Surface as shown on the Obstacle Limitation Surface Map or the Procedures for Air Navigation Services Operations Surface Map for the Gold Coast Airport. relevant Commonwealth body means the body, under Commonwealth legislation, that is responsible for development approvals for development that penetrates the Limitation or Operations Surface for the Gold Coast Airport.
5. Whilst it is unclear if cl 7.8 applies to the proposed development in circumstances where the proposed development does not include any construction and concerns only the use of a helipad, both the National Civil Aviation Safety Authority ("CASA") (on 5 December 2017 and 10 October 2018) and Gold Coast Airport (on 18 December 2017) nevertheless provided written confirmation that they do not object to the proposed helipad.
6. Pursuant to cl 2(b) of Sch 3 to the Environmental Planning and Assessment Regulation 2000 ("EPA Reg"), aircraft facilities that are helicopter facilities are designated development if they have an intended use of more than 7 helicopter flight movements per week (including taking-off or landing) and are located within 1km of a dwelling not associated with the facilities. By limiting the flight movements to 7 or less in the first DA, the proposed helipad in the first DA is not designated development.
7. Pursuant to cl 37A of the EPA Reg, development of a kind specified in Part 1 is not designated development if it is ancillary to other development, and "is not proposed to be carried out independently of that other development". The Statement of Environmental Effects accompanying the second DA sets out that the operation of the helipad is for personal transport to and from work for Mr Matthew Karlos, who resides at a dwelling on the site and is a helicopter pilot. The Council considers, and I accept, that the helipad proposed in the second DA is ancillary to the dwelling in circumstances where it is for private use to and from work and given the small scale of its operations, which is limited by the agreed conditions to 8 movements in a 7 day period. This is consistent with the decisions in Warringah Shire Council v Raffles (1978) 38 LGRA 306 and Christopher Peter Walker v Warringah Council [1998] NSWLEC 276. As such, the proposed helipad in the second DA is similarly not designated development as a result of the operation of cl 37A of the EPA Reg.

Evidence of resident objectors

1. The objectors to the development applications were notified in accordance with paragraph 99 of the Practice Note - Class 1 Development Appeals.
2. The hearing commenced on site with evidence heard from two objectors to the development applications. A number of written submissions from resident objectors also formed part of the evidence. The following is a summary of the issues raised concerning the proposed development in the evidence given on site and in the written submissions:

• The acoustic impact of the helipad is unacceptable given the rural character of the area, and will cause a loss of the peaceful amenity of the area.
• The operation of a helipad is not consistent with the rural zoning of the area and the rural landscape character of the area.
• There will be adverse impacts on the natural fauna and its habitat, and it will create a risk to biodiversity.
• There is no need for a helipad given the close proximity of Gold Coast Airport.
• There is a risk to safety and a pollution risk with storing fuel on the property.
• The time of operation of the helipad is not acceptable given that some residents work in Queensland, which does not operate with daylight savings time.

1. Additionally, Mr Weir expressed concern about his property at 487 Urliup Road not being included in the properties above which the helicopter is prevented from flying by the proposed conditions.

Evidence of supporters

1. A number of letters of support were also tendered at the hearing, demonstrating support of the proposed helipad by 7 local residents. The letters of support include the following:

• The residents of the adjoining property to the west do not have any objection to the helicopter flying over at a low level,
• Some residents take delight and find amusement in the helicopter flying in and out of the valley, and
• The residents closest to the flight path consider that the helicopter can only be heard for 30 seconds, isn't noisy, and is far less intrusive than the noise from dirt bikes along the road or neighbours playing loud music for long hours.

Acoustic impacts

1. The development applications were accompanied by acoustic reports by Craig Hill Acoustics, which were not considered by the Council to apply the correct assessment criteria. Consistent with the decision of Preston CJ in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 ("Nessdee"), the appropriate assessment approach for assessing helicopter noise is to use the ANEF (Australian Noise Exposure Forecast), with the target for residential amenity being ANEF 13 at residential receivers that are newly exposed to aircraft operations.
2. The Council engaged the services of Mr Cooper, an acoustic consultant, to review the application and provide an independent acoustic assessment of the second DA. A summary and extracts of that acoustic assessment is contained in the Council officer's assessment report for the Division 8.2 Review of Determination for the first DA, and is considered relevant to both development applications. Mr Cooper used measurements of a Bell 206 JetRanger II obtained for a number of Sydney CBD Heliport assessments and adjusted the measurement for distance attenuation to determine the contribution from different components. As a result of this analysis, his report, as is quoted in the assessment report, is as follows: "From the above results it can be seen that the proposed operations with a take-off before 7am and a landing between 7am and 7pm on each day would result in an ANEF less than 13, which is the appropriate criterion for a new flight path in an area not previously exposed to helicopter noise. Under the requirement to consider potential adverse impacts under the Environment Planning and Assessment Act, the maximum noise from the helicopter operations significantly exceeds the "ambient Leq" of 45 dB(A) identified in the second acoustic report (for unspecified times) and has the potential to give rise to sleep disturbance at the residential dwellings identified as R1 - R5 inclusive. Based upon the maximum level from helicopter movements recorded at locations R1 - R5 (Table 5.2 of the second acoustic report) there is the potential for sleep disturbance during the "night period". The maximum levels are greater than the 65 dB(A) limit proposed in the Nessdee P/L matter… and significantly more than background +15 dB(A) being the general sleep disturbance limit provided by the EPA in their Noise Guide [for] Local Government, or the 52 dB(A) limit nominated by the EPA in the Noise Policy [for] Industry document. If the helicopter operations were restricted to daytime operations under AS 2021 (between 7am and 7pm Monday to Saturday) and 8am to 6pm on a Sunday (to accord with the EPA's definition of daytime) then the issue of sleep arousal would be resolved and the resultant ANEFs would be reduced. For that scenario I have determined the highest ANEF being a value of 7.7 would occur at location R1."
3. The proposed conditions of consent limit the acoustic impact by the hours of operation, which are more constrained than that recommended by Mr Cooper. The proposed conditions of consent also manage the acoustic impact by limiting the time that the engine is idle before take-off, by limiting the number of movements in a 7 day period, by limiting the number of movements each day, by maintaining a single flight path for take-off and landing, and by listing a number of properties above which the helicopter cannot be flown. Based on the extract of the report above, it is clear that the operation of the helipad in accordance with these conditions will meet the target for residential amenity used in Nessdee, being ANEF 13 at residential receivers.
4. Contrary to the submissions and evidence of the local residents who object to the helipad, the mere fact that you can hear a helicopter during the daytime period does not make it an unreasonable or unacceptable acoustic impact. Further, the residents' recent experience of acoustic impacts cannot be quantified in circumstances where the helipad has not yet operated in accordance with the proposed conditions of consent. That is, it is unknown whether the acoustic impact experienced was one that will be experienced when the consent is in operation and the helipad is operating in accordance with the conditions of the consent.
5. On the basis of the evidence of the independent acoustic assessment by Mr Cooper (as contained in the Council's report), I am satisfied that with the imposition of the above described conditions of development consent the proposed helipad will not have unreasonable or unacceptable acoustic impacts.

Consistency with rural character

1. A number of the residents considered that the operation of a helipad is not consistent with the rural zoning and the rural landscape character of the area. This was similarly raised in the Notices of Determination when the development applications were refused, and when the review application for the first DA was refused.
2. Contrary to this concern, however, helipads are a specifically nominated use that is permissible in the RU2 Rural Landscape zone. That zone confines the range of permissible developments to those identified. One of the objectives of the zone, as the third objective states, is to "provide for a range of compatible land uses, including extensive agriculture." One of those identified land uses is helipads. As such, it is reasonable to expect that permissible uses can be carried out in the RU2 zone and that those uses are compatible with the zoning unless there are identified unacceptable impacts. As stated by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118]: "In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts."
3. In similar circumstances in Nessdee, in dealing with heliports in a zone in which heliports and helipads were permissible, Preston CJ said at [79]: "In these circumstances, residents in the E3 zone cannot reasonably have expected that heliports could not be carried out with consent in the E3 zone or that any additional helicopter operations would be confined to the existing Orange Airport. Similarly, Mr Fletcher's view that whilesoever Orange Airport has capacity for additional helicopter flights, it is unreasonable to approve the establishment of a heliport at another location is at odds with the strategic planning reflected in the zoning and the Land Use Table for the E3 zone."
4. I consider that there is nothing about the operation of the helipad, of itself, that renders it incompatible with the zoning of the land or with its rural landscape character. In circumstances where the acoustic impact of the helipad is acceptable, and no other amenity impacts are raised, the helipad has acceptable environmental impacts and can be considered to be compatible with the zoning of the land.

Availability of alternative location

1. A number of the local residents contended that the facilities at Gold Coast Airport should be utilised in lieu of a helipad on the site. However, that there is some other site that could accommodate the activities of the helicopter is not a basis on which to refuse the development as sought in the present location. Preston CJ makes this clear in Nessdee at [81]: "…the mere existence of an alternative site that has capacity to accommodate a proposed development does not make it unreasonable to grant consent to that development at the proposed site. A consent authority's obligation is to consider and determine the development application that has been made for the identified development on the identified land. If development on that land is permissible and acceptable (having regard to all the relevant matters), it should be approved. Development on that land does not become unacceptable because the development could also be carried out acceptably on other land."
2. As such, the existence of Gold Coast Airport is not a basis upon which to refuse the development applications in circumstances where a helipad is a permissible use in the zone and where the impacts are considered acceptable.

Other impacts

1. There is no evidence to support the residents' concerns with respect to the impact of helicopter operations on fauna and biodiversity. Additionally, the proposed conditions of development consent preclude the refueling of the helicopter on the site.
2. With respect to the residents' concerns regarding the hours of operation, it is clear that the proposed hours allow flights to commence after 8am AEDT, which is 7am in Queensland during the daylight savings period. Even if this was a relevant matter for consideration (which I do not necessarily accept), there is nothing unreasonable about flights starting at 7am Queensland time, given the acoustic 'daytime' period commences at 7am on weekdays.
3. Finally, with respect to Mr Weir's concern about his property at 487 Urliup Road not being included in the excluded properties (above which the helicopter is precluded from flying), the Council says, and I accept, that doing so is unnecessary. Mr Matthew Karlos considers that this property could easily be included in the list of excluded properties, as it is not below the flight path and need not be overflown by the helicopter. Nevertheless, I accept the Council's position that it is unnecessary to do so, given the proposed conditions of consent require compliance with the specified flight path that results in the helicopter departing and approaching the landing site on a path that is to the east and north-east of Mr Weir's property.

Trial period

1. I accept that the imposition of a trial period of 6 months is appropriate. This will allow evaluation of the impact of the consent, once operative. The trial period will enable assessment of the effectiveness of the conditions of consent to limit the acoustic impact of the helipad, and will also allow the Council to monitor any complaints it receives concerning its operation.
2. Additionally, a development application for the permanent operation, or for a further trial period, will be the subject of notification that will bring forward any evidence of an actual adverse impact as experienced by local residents throughout the trial period.
3. If a further development consent or extension of the trial period is later considered appropriate, any complaints or submissions on that application following the trial period could also inform the imposition of additional conditions on the consent, including, if appropriate, the inclusion of 487 Urliup Road in the excluded properties above which the helicopter is precluded from flying.

Outcome of the appeals

1. As set out above, the proposed helipad is permissible with consent in the zone, the acoustic impacts are acceptable, and there is no evidence of any other unacceptable impacts. Accordingly, consent for its operation should be granted, subject to the conditions of consent as agreed between the parties. On each of the development consents I accept that the deferred commencement condition, which requires the surrender of the alternate consent, is appropriate, as this will prevent both helipad consents from operating concurrently.
2. In proceedings 2018/384177, the Court orders that: 1. The appeal be upheld. 2. Development consent be granted to Development Application No. 17/0805 for a helipad for personal use ancillary to the existing dwelling house on the land at 477 Urliup Road, Bilambil (Lot 1 DP 735658) subject to the conditions set out in Annexure "A1". 3. No orders as to costs. 4. Exhibits 2, 3, 4 and 5 are returned.
3. In proceedings 2018/384182, the Court orders that: 1. The appeal be upheld. 2. Development consent be granted to Development Application No. 17/0805 for a helipad for personal use ancillary to the existing dwelling house on the land at 477 Urliup Road, Bilambil (Lot 1 DP 735658) subject to the conditions set out in Annexure "A2". 3. No orders as to costs.

Commissioner of the Court Annexure A1 (163 KB, pdf) Annexure A2 (163 KB, pdf)

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