Lilley v Lithgow City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Lithgow City Council (the council) of a development application to establish a helipad on lot 5 DP 244899, known as 4675 Castlereagh Highway, Capertee.

The site 2 The site is 12.6ha in area, located on the Castlereagh Highway, 3km north of Capertee. It is mostly cleared of vegetation. Adjoining properties are of similar size and in rural-residential occupation. There are several national parks nearby, including the World Heritage area of the Blue Mountains National Park.

The proposal and its history 3 The applicant proposes to establish a helipad on his property for a single engine Robinson R44 II or similar helicopter. The helipad includes a lockable compound, fuel containers, security and lighting systems, a bund for chemical spills, parking, toilets and a hangar. None of these facilities is in contention. 4 The applicant proposes to operate joy flights between 7am and 6pm Monday to Saturday and 8am to 6pm on Sundays and public holidays. He proposes a maximum of 20 flights a day, with an annual maximum of 1500. 5 The applicant lodged the application in December 2006. Following notification, the council received 60 objections. The council referred the application to the then Department of Environment and Conservation, which provided its General Terms of Approval. The council also referred the application to the Roads and Traffic Authority, which indicated that it would agree to the proposal subject to conditions relating to access and signage. Those requirements are reflected in the conditions of consent. 6 In June 2007 the council's Finance and Services Committee considered a report prepared by the council's planning staff, which recommended approval, though with a lower limit on the number of flights. The committee rejected the recommendation and refused the application. The applicant filed the appeal in May 2007.

Zoning 7 Local Environmental Plan 1994 (the LEP) zones the site, and areas around General Rural 1(a).

Matters in contention 8 The council submitted its Statement of Contentions listing nine matters. During the hearing, the council's advocate, Mr S Griffith, reduced these to the following three: · The impact of aircraft noise (take-off and landing) on nearby properties is unacceptable and inconsistent with the zone objectives. · The impact of airborne noise on the environmentally sensitive areas over which the helicopter joy flights will fly is against the public interest. · If the consent is granted, it should be limited to five years.

The objectors' evidence 9 During the visit to the site the Court visited the properties of two neighbours who objected to noise impact. Mrs Wilma Barry, who lives at "Capertee Kraal", 4739 Castlereagh Highway, said that she is now disturbed by the helicopter flights undertaken by Mr Lilley, though she added that recently the noise nuisance has been less than it used to be. On weekends she was aware of two to three flights a day. 10 Mr Karl and Mrs Marianne Stockmann, who live at 4718 Castlereagh Highway, said that they were now disturbed by the three flights per day on weekends. During the week there were fewer flights. They referred to a red helicopter that flies in at low altitude. 11 The Court also heard the evidence of objectors who did not wish the Court to visit their property. Ms Veronica Nolan, representing the Capertee Valley Environment Group, said that the proposed site was an inappropriate location for a helipad, being in the midst of rural residential holdings and close to national parks. Mr Keith Muir, who represented the Colong Foundation for Wilderness, said that helicopter noise would have an adverse impact on World Heritage areas and national parks. The application did not indicate the proposed flight path, once the helicopter was over the national park. The proposal was an example of private gain against public loss. Dr Brian Marshall, the President of the Blue Mountains Conservation Society, said that the noise of helicopter flights over national parks is a well-recognised threat. 12 Mr Bill Sanday, who lives at lot 2, Coorain Street, Glen Davis, objected to noise and said that there would be no policing of the activity, once it was allowed. Mrs Susan Bennett, who lives at lot 4 Vincent Street, Capertee, and who also represented Mr N and Mrs P Bennett, said that she lived in an idyllic location and fears that the helicopter noise will reduce the quality of her life. The flights that now occur do disturb her. Ms Elizabeth Cutajar, who lives at "Kanangra" 4839 Castlereagh Highway, Capertee, said that values of properties within 2km of the site would be lowered, if the application were approved. Mr Thomas Ebersoll, who owns the Newnes Hotel at Wolgan Valley, said that helicopters would destroy his environment. He does allow the occasional helicopter to land at his property. Mrs Sharon Freeman, who lives "Wongaburra", 4861 Castlereagh Highway, Capertee, said that she could hear Mr Lilley's helicopter now, as well as the red helicopter. Mr Jim Bennett, who lives at "Bungaree", Airly Street, Capertee, said that he feared that the activity, once given consent, would expand. Mr Alfred McGhee, who lives at 4918 Castlereagh Highway, said that he was concerned about accidents. Ms Ariel Elliott, who lives at 6 Spring Street, Lithgow, said that she was concerned that no attention was paid to charter flights that might use the helipad.

The supporters' evidence 13 The Court heard nine persons speak in favour of the proposal. Mrs Karen Alston, who lives at 4654 Castlereagh Highway, one of the properties identified by the acoustic consultants as receiving noise impact from the proposal, said that she supported the joy flights. The noise from existing flights is not bad. The noise from the road is much worse. 14 Mr Geoffrey Moon, who lives at 102 Mudgee Road, Capertee and is the secretary of the Capertee Progress Association, said that the Progress Association supports the proposal. Capertee must go forward. Given the trucks on the highway, there is nothing peaceful about Capertee now. Mr Peter Mills, who lives at Glenbrook, said that he was the owner and operator of the red helicopter that others have referred to. He pointed out that, once his helicopter was over 500 feet, he could hover over an area for hours without breaking the law. If the application were refused, helicopters could take off from Bathurst or Mudgee airports, about half an hour from Capertee, and fly over the Capertee Valley. 15 Mr Gorrell, who lives at the "Waterhole", Glen Alice and is a grazier in the region, said that he supported the application because there are already many flights over the area, including training flights from Richmond Air Base, which fly quite low. His focus is to get tourism into the area. Mr Graham Annavazzi, who lives at "Noika", Glen Davis Road, Glen Davis, said that his property is frequently overflown and this has not disturbed his cattle or the wildlife on his property. Mr Col Ribaux, who lives at "Airly Mountain", Capertee, said that he wanted to "share the valley" and therefore bring in tourism. Mr Grant Willis, who lives at 5162 Castlereagh Highway, Capertee, said that he could hear the existing helicopter flights, but the annoyance was minor. His main objective is to keep the town going and this needs the influx of tourism. The advantages outweigh the drawbacks. Mr Peter Docker, who lives at 39 Razorback Road, Running Stream, about 8km west of the site, pointed out the need for tourism. He considered that rural areas are already subject to many other kinds of noise. Stock and wildlife do not react to helicopter noise. Mr Roy Pearce, who lives at Lithgow, said that if the application is refused, the joy flights will take off from Bathurst or Mudgee and those towns will receive the tourist dollar.

Consideration of public comment 16 It is clear that public opinion on the proposal is divided. In general it appears that many of the supporters live further from the site than the objectors, though this is not the case for Mrs Alston, whose property was assessed as one of the two worst affected, and who supports the proposal. The division of opinion is basically between two views of the world: one that wants tourism to liven up the economy of Capertee, and the other, which places a higher value on a quiet lifestyle. It is a debate that occurs throughout society and this appeal is not the forum to resolve it. In effect, support for and opposition to the proposal cancel each other out, except to the extent that the opposition comes from persons who are directly affected, ie from Mrs Barry and Mr and Mrs Stockmann.

Take-off and landing noise over neighbouring properties 17 The Court heard the evidence of Dr Robert Bullen for the council, Mr Robert Fitzell for the Capertee Valley Environmental Group, and Mr Steven Cooper for the applicant, all three acoustic consultants. It was common ground among the experts that there was no single recognised criterion for airborne noise. One criterion, the ANEF, had been devised to deal with the need to insulate buildings already affected by aircraft noise. Mr Fitzell and Dr Bullen considered it unsuitable for this reason. These two experts agreed that the most suitable (or rather, the least unsuitable) criterion was to be found in the AirServices Australia document Environmental Principles and Procedures for Minimising the Impact of Aircraft Noise (the AirSerices document). Principle 5 of this document indicates that aircraft noise is not considered significant if it is less than 40dB(A) LAeq(24 hours). The criterion is intended to refer to a long-term average rather than a worst-case day. A Fly Neighbourly Guide issued by AirServices Australia includes a recommended range of 40-50dB(A) LAeq(24hours). 18 In the experts' joint report Dr Bullen wrote that aircraft noise below the above figure would not be relevant for selecting preferred flight paths and similar options, although it may still cause annoyance to some people. In his oral evidence he agreed that, if the noise impact were at or below this figure, he would have no reason to advise against the proposal. Mr Fitzell wrote in the joint report that the 40dB(A) represents a useful criterion for consideration of a new operation. Mr Cooper thought that the criterion was too onerous. 19 Between the first and second day of the hearing the three experts met and agreed to a Table identifying the noise impact on neighbouring properties of various combinations of flight numbers and take-off paths. The Table came to the Court as Exhibit F, and, though it was fitted on a single page, it was the most useful piece of information among the mountain of paper devoted to presenting and defending the appeal. 20 The experts identified five residential properties on which the noise impact would fall. They were: · Mrs Barry's property, Capertee Kraal, No 4739; · Mr and Mrs Barnes' property, Bandanora; · Mr and Mrs Alston's property, No 4654; · Mr and Mrs Stockman's property, No 4718; and · Mr and Mrs Manne's property, No 4613. 21 The applicant's counsel, Mr Chris McEwen, suggested that the Court should accept the general criterion of 40dB(A) LAeq(24 hours) for neighbouring properties, with the exception of Mrs Barry's property, where the raising of the 40 criterion by one decibel to 41 would allow the applicant an average of two additional flights a day. Mr Fitzell agreed that the difference between 40 and 41 would not be perceptible. Dr Bullen was less keen to raise the criterion (and thereby lower the standard), though he agreed that the difference between 40 and 41 was not significant. 22 Mr and Mrs Alston's property is a special case, since it is one of the most vulnerable to the noise and Mrs Alston, who supports the proposal, indicated that she found road noise far worse than aircraft noise. Mr McEwen suggested that the criterion for the Alstons' property should be raised to 45dB(A). Given that the AirServices document suggests that aircraft noise between 40 and 50dB(A) is acceptable, in my opinion the acceptance of 45dB(A) for a supporter's property is reasonable. 23 The application of the above criteria results in a limitation of 20 flights per day and 110 flights per week. The applicant accepts a limitation of 1,500 per annum. This last limitation does not arise out of the expert evidence, though it is supported by it. 24 Dr Bullen and Mr Fitzell supported the inclusion of a further limitation, namely a maximum number of 34 flights spread over the weekend and a maximum number of 12 movements using the eastern flight path and a maximum number of 56 movements using the western and curved flight path. Mr Cooper thought this was unnecessary. I take into account that the proposal is in a rural-residential area where some residents place a high value on quiet, particularly on the weekend. In addition, they are unlikely to have anticipated, when buying their property, that they will be living close to a helipad. I am therefore inclined to accept the recommendation of the acoustic experts, Dr Bullen and Mr Fitzell. I do not consider that the limitation is onerous on the applicant, as it allows an average of 17 flights a day during the weekend.

Noise over wilderness areas and national parks 25 It was common ground between the experts that the noise emanating from up to 26 helicopter flights a day would result in LAeq(24 hours) of 40dB(A). A lesser number of flights would be below 40dB(A). As mentioned above, it was also common ground that at that level, noise disturbance would not be significant. I conclude therefore that the noise impact of the proposal on wilderness areas is acceptable. 26 I note that the council has not brought expert evidence to suggest that helicopters, at any level of noise, have an adverse impact on flora and wildlife in national parks. In identifying it as an issue, the council relied presumably on the evidence of objectors, such as Capertee Valley Environment Group, the Colong Foundation for Wilderness and the Blue Mountains Conservation Society. While helicopter flights certainly disturb the peace of those who try to experience nature from the ground, this is not the same thing as having an adverse impact on flora and fauna. Helicopter flights over the Capertee Valley and the Blue Mountains National Park are possible from other nearby airports. If helicopter flights over these areas are harmful to the environment or disturbing to bush walkers, they should be prohibited by more effective and more appropriate means than the refusal of this application.

Consistency with the LEP 27 It is in the light of the above findings that I turn to those parts of the LEP with which the council contends that the proposal is inconsistent. First, the council refers to the aims under 2(a), (b)(iv), and (c)(vii) of the LEP. 28 The aims of the LEP under those subclauses are: 2(a) to recognise and promote the City of Lithgow as a desirable and viable place in which to live and to visit and invest; 2(b) to encourage the proper management, development and conservation of natural resources and the built environment within the City of Lithgow by protecting, enhancing or conserving: (iv) places or features of high scenic or recreational value, and (c) to replace the former local planning controls with a comprehensive local environmental plan to help facilitate growth and development of the City of Lithgow in a manner which is consistent with the aims specified in paragraph (a) and which: (vii) encourages the separation of conflicting land uses. 29 The council contends that the proposal is antipathetic to the conservation of natural resources and the separation of conflicting land uses. Given the expert evidence as well as the limitations on the number of flights and the use of taking-off paths, I do not accept that this contention can be upheld. 30 Clause 9(2) states: The Council must not grant consent to development unless it is of the opinion that such development is consistent with the objectives for the zone in which it is proposed to be carried out. 31 The council contends that the proposal is inconsistent with the objectives of the 1(a) zone, in particular with (a)(1), (a)(vii) and (f). 32

The objective of the 1(a) zone is to promote the proper management and utilisation of natural resources by: (a) protecting, enhancing and conserving: (i) rural land, in particular prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential, and (vii) localities of significance for nature conservation, including places with rare plants, wetlands and significant wildlife habitat, and (f) providing for the separation of conflicting land uses. 33 There was no evidence before the Court that the proposal is inconsistent with any of the above objectives. 34 Clause 11 deals with general considerations for development in rural areas. Clause 11(1) states: 11(1) Before determining a development application relating to land within Zone No 1 (a) or 1 (c), the Council must take into consideration the effect that the proposed development would have on: (d) the protection of areas of nature conservation significance or of high scenic or recreational value, and of items of heritage significance, (f) development on adjoining land and on other land in the locality, including any cumulative impact. 35 The only concept introduced here that differs from those already discussed under other parts of the LEP is that of cumulative impact. I do not see how cumulative impact can be an issue, given that there is no other helipad proposed, nor is it suggested that one might be in the future. If the contention is that cumulative refers to the sum total of all flights over the Blue Mountains National Park (including those originating from Richmond Air Base, Mudgee and Bathurst), then I have no evidence on the number of existing flights on which to base an opinion.

Time-limited consent? 36 The council suggest that there be a time limitation of five years on the consent. The joint planning expert agreed to by the parties, Mr Paul Grech, supports the time limitation. He points out that there is little investment required to implement the consent. A five-year limitation would allow an assessment of the actual aircraft noise rather than the hypothetical one undertaken for the appeal. For obvious reasons, the applicant does not want the limitation. 37 I am persuaded by Mr Grech's reasons. The need to renegotiate the consent in five years' time will give the objectors some comfort. It will also motivate the applicant, or another person who has taken over the consent, to observe the conditions of consent and keep aircraft noise to a minimum.

Conclusions 38 The expert evidence in this appeal has demonstrated that the aircraft noise generated by the granting of the appeal will be kept to a level that is not considered significant. It is common ground that the conditions imposed on the consent are the most stringent yet imposed on the flying of helicopters in Australia. In the circumstances there is no reason to withhold consent and the appeal is upheld.

2. Development application to establish a heliport lot 5 DP 244899, known as 4675 Castlereagh Highway, Capertee is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 8, A, B and F.

      Dr John Roseth
      Senior Commissioner

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