McCuskey v Upper Lachlan Shire Council

Land and Environment Court (NSW)|2016-06-30

Solicitors: Bradley Allen Love Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/00166500

Judgment

Shannon McCuskey has appealed from the Council's refusal of his development application (DA 84/2014) for the construction of a motocross recreation facility on rural land at 111 Lade Vale Road, Gunning (the Site).
The appeal is brought pursuant to s97 (1) of the Environmental Planning and Assessment Act 1997 (EPA Act), and was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). As agreement was not reached during the conciliation phase of the conference the parties requested that I terminate that process and determine the appeal after a further hearing pursuant to s34 (4) (b).
Before the conference was terminated the applicant was granted leave to rely upon an amended application that reduced the size of the facility and removed the proposed permanent structures (Exhibit A). He also agreed, in the event of that consent, to accept as condition of such consent that he enter into a voluntary planning agreement (VPA) with the Office of Environment and Heritage (OEH) for the conservation and protection of the conservation areas on the site. While the amended application and proposed VPA had the effect of narrowing the issues between the parties, it did not overcome the Council's objection to the development on other grounds. Those grounds raised the following issues: 1. whether the development is suitable for the site, having regard to the relevant provisions of the Upper Lachlan Local Environmental Plan 2010; 2. whether the acoustic impacts generated by of the development, particularly upon the surrounding rural properties, are acceptable; 3. whether consent to the development is in the public interest?

Background

The Council's Amended Statement of Facts and Contentions dated 4 May 2016 (SOFC) sets out the background facts and the relevant statutory controls and contentions.
The SOFC records that the site is located about 6.5km southwest of the township of Gunning within a rural location, surrounded by active farms. It fronts Lade Vale Road and is comprised of several lots, having a total land area of 195 hectares. The site is undulating to hilly in topography is covered in grassland with patches of woodland.
The area has a long history of livestock grazing although the site has not been used for productive agricultural purposes for many years. The absence of grazing has had a very obvious positive effect on the regeneration of native trees and ground cover, both of which now characterise the site (Conservation Management Plan at p1 (Exhibit D)).
That said, the site has been the subject of regular and routine land management programmes and is capable of an agricultural use.
According to the Council, the active component of the outdoor recreation facility is proposed on that part of the site with the greatest agricultural production potential, but is not for an agricultural, primary production or related use. For his part, the applicant contends that the proposed use is consistent with the aims of the State Environmental Planning Policy (Rural Lands) 2008 (SEPP 2008) in that the proposed use facilitates "the orderly and economic use and development of the rural lands for rural and related purposes". The applicant further contends that the proposed use is a related rural purpose for the purposes of the SEPP 2008; and in any event an approval of the application would not preclude or sterilise the land from its return to agricultural production at some time in the future.

The Proposal

For the purposes of this application the site is made up of two precincts: the conservation (offset) areas and the Motocross facility. These precincts are identified on the plan in Figure 1 below (taken from the ecologists' joint report (Exhibit 6)).
The motocross facility is proposed to cover sixty six hectares (66 ha) of the Site. The remaining one hundred and twenty nine hectares (129 ha) will be set aside for its biodiversity conservation values as offset areas under the VPA.
As stated, the amended proposal is a scaled down version of the original application which was based on the established "Queensland Moto Park" located at Wyaralong. Originally the applicant sought approval for a motocross facility which operated seven days a week - to service approximately 20,000 visitors each year with a weekly average of 385 riders.
The development, as amended since the Council's determination of the original application, presents a much reduced operation with only 3 tracks. The permanent structures originally proposed are now replaced with "transportable amenities and ablutions facilities" (Applicant's draft deferred commencement condition B - (Exhibit M)). For the most part, the facility will operate three days per week and be restricted to recreational/social riding. There is no longer any motocross racing allowed on the site (Operational Plan of Management dated 16 April 2016 (OMP) (Exhibit C)).
The elements of the amended application are described as follows:

Senior Moto cross track MX1 for a maximum of 40 experienced bike riders (40 bikes);
Intermediate Moto Cross track MX 2 for a maximum of 30 intermediate riders (30 bikes );
Junior Moto Cross track MJ for a maximum of 20 junior riders (20 bikes);
Three helipads (each labelled "proposed emergency evacuation location") ;
Spectator viewing areas;
A new vehicle entry/ exit point, internal access roads and designated vehicle parking facilities (with overflow parking);
On-site sewerage management facilities;
Expansion of existing dams;
Fire fighting storage facilities;
Three (3) conservation offset areas totalling 126.4 ha.

The facility is intended to operate in accordance with the OMP. It states that on arrival at the facility all riders will attend the Sign In Office (located in a small portable shed at the first car park inside the property) to register and sign an indemnity form and pay the user fee .Riders under the age of 18 years will need to be signed in by a parent or guardian. All riders will be required to provide emergency contact details. Each rider will be inducted into the Site and provided a copy of the Site Rules, maps of the Site and advised as to an available car park. Some booking will be taken via the internet and these riders will present an executed admission form on entry.
Vehicles will then proceed to an identified carpark where riders can unload their bikes and put on their motocross safety gear on.
Bikes and riders will then proceed at a walking pace/ in 1st gear to a slip lane leading onto a track. All bikes will be checked for noise emissions prior to being allowed on a track to ensure the maximum noise emitted (when measured in accordance with the testing requirements of the Motorcycle Australia standards at 2m from the bike exhaust) does not exceed 110dBA.
No motor bike without a muffler will be permitted on the track or even to be started on the site.
Staff wearing fluoro suits will act as track supervisors and also attend to maintenance. The facility project managers will co-ordinate emergency evacuation procedures and the provision of any necessary medical treatment.
Weather permitting, the facility will operate three (3) motor bike tracks simultaneously. Spectators (generally family members) will occupy designated spectator areas around the tracks and in the car parks. The use of the Mx 2 track will be restricted in unfavourable wind conditions (being westerly winds with a wind speed of between 1-5m / s).
The maximum number of persons permitted on the land at any one time including participants, spectators, employees and volunteers is not to exceed 600.
Generally, the facility will operate between the hours of 9am and 4pm on Wednesday, Saturday and Sunday and also public holidays except for Good Friday, Easter Sunday, Anzac day and Christmas Day. It is anticipated that some 200 motor vehicles (some towing bike trailers) will enter and leave the site via Lades Vale Road when the facility is operating.

Statutory controls

Notwithstanding the parties' disagreement about the characterisation of the amended development - as either a "recreation facility (major)" or a "recreation facility (outdoor)", it is agreed that the development is permissible with consent under the Upper Lachlan Local Environmental Plan 2010 (LEP). The land is within the RU2 -Rural Landscape zone of the LEP and because the development is not expressly prohibited within the relevant land use table it is deemed to be a permissible use with development consent.
The land is also identified as "sensitive land" on the Upper Lachlan Environmental Plan 2010 Natural Resources Sensitivity - Biodiversity Map and this classification invokes cl 6.2 (Biodiversity) of the LEP. Relevantly, the clause provides that the Court cannot grant consent to a development unless it is satisfied about the matters listed in cl 6.4 (2). Originally the Council told the applicant that cl 6.2 was at issue, however, its position changed after the receipt of the ecologists' joint report (Exhibit 6). The report, prepared by Dr Mills (the Council) and Mr Lembit (Applicant), records the experts agreement that "the documents accompanying the DA, exclusive of the CMP, provide adequate description and assessment of the biota occurring on the Site and its conservation importance" and that "the impact of the proposal is not of a magnitude that warrants the preparation of a Species Impact Statement". That said, the experts recommended the protection the conservation areas of the site and endorsed the use of a VPA as an appropriate mechanism to ensure the long term protection of the offset areas. Subject to OEH accepting the proposed VPA and the draft CMP (including the proposed weed management programme and the engagement of an ecologist for a period of years to supervise the works) - the ecologists do not raise any issue with the development being conditionally approved. Following this report the Council withdrew its contentions in respect of cl6.2 and the Council's case focussed on provisions in the SEPP, the LEP and the Upper Lachlan Development Control Plan 2010 (DCP).
The Court is required, in its assessment of this application under s79C of the EPA Act to consider the terms of the relevant provisions of the SEPP 2008 and the LEP and also the relevant provisions of the Upper Lachlan Development Control Plan 2010 (DCP). And, given the express terms of cl 2.3 (2) of the LEP I have had particular regard to the RU2 zone objectives.
The relevant aims of the LEP according to the Council include those stated in cl1.2 (2)(c), (d) and (g) in as much as the development fails:

to promote the use of rural resources for agriculture and/or primary production;
to protect and conserve the environmental and cultural heritage of the Upper Lachlan and;
to promote and coordinate orderly and economic use and development of land in Upper Lachlan.

The RU2 Rural Landscape zone objectives 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 preserve environmentally sensitive areas including waterways and prevent inappropriate development likely to result in environmental harm.
to protect the Pejar catchment area from inappropriate land uses and activities and minimise risk to water quality.
to minimise the visual impact of development on the rural landscape.
to minimise the impact of development on the existing agricultural landscape character.
to protect and enhance the water quality of watercourses and groundwater systems and to reduce land degradation.
to maintain areas of high conservation value vegetation.

The Council's Manager of Environment and Planning, Mr Wong, also believes that the aims and Rural Planning Principles expressed within SEPP 2008 are relevant to the Court's assessment of this DA. The applicant's consultant town planner, Mr Blackburn-Smith disagrees. He believes that the Rural Planning Principles in the SEPP 2008 are only applicable to the making of environmental planning instruments and in the assessment of applications for the subdivision of land and dwelling houses, neither of which are relevant in this case. The planners' competing views about this issue are discussed in their joint planning report (Exhibit 11at p8). Following a consideration of that evidence it seems to me, having regard to the expressed purpose of SEPP 2008, that Mr Blackburn-Smith's reasoning about the Rural Planning Principles is correct. For that reason, I have not had any particular regard to the Rural Planning Principles in the SEPP 2008 in my assessment of this application.
The planning experts' views about these matters (including cl2.3 (2) and the RU2 zone objectives of the LEP) are recorded in a joint planning report (Exhibit C p12) and their statements (Exhibits G and 10).
Before I deal further with the planning evidence it is useful to appreciate the objectors' submissions and the acoustic evidence first.

The local residents (objectors)

In response to the notification of the application the Council received 56 written submissions, all objecting to the proposed development. Generally, the submitters believe that the motocross facility will generate unacceptable acoustic and amenity impacts for the properties proximate to the site. They are of the collective opinion that the use is incongruous with the existing rural landscape. Some of the objectors are landholders who carry out substantial commercial farming enterprises nearby. A few of them believe that the negative impacts of the development will be so great that they will suffer economic loss. This in turn, they submit, will have negative social and economic impacts for the township of Gunning. There are other residents who are concerned about noise, dust and the capacity of the local road network to deal with the additional traffic generated by the development and the safety issues that will be occasioned to local traffic (SOFC at p4 Exhibit 1).
Several of the residents who had earlier lodged written objections with the Council addressed the Court orally after the view at Gunning. Notes of that oral evidence are before the Court in (Exhibit 12). These residents' properties are identified on the map marked A below.
Gary Prattley, speaking on behalf of his wife told me that he operates a Murray Grey Beef Cattle Stud situated approximately 900m from the proposed development site. While he described himself as a lifestyle farmer he represented that he has extensive planning experience at an executive level in Australia and New Zealand. This was apparent. Mr Prattley said that the development is totally inconsistent with several of the RU2 Rural Landscape zone objectives and consequently will have unacceptable impacts on the locality. He raised concerns about the potential impacts on the quality of his residential amenity and economic impact on his beef farm. Mr Prattley said that the there is a strong consistency in the Council's vision, economic statements and the objectives of the zone on the importance of quality of lifestyle and environment. Council has been diligent in not creating large areas of small rural lot developments and the 80ha minimum lot size has attracted a wide cross section of residents including many professionals who run significant rural enterprises, often supported by off-farm income but who choose to live here for the lifestyle and environment.
Those lifestyle farmers are critical to the survival of the local economy and businesses as well as the schools and social services. According to his research, current businesses are 68% lifestyle farmers, 12 % traditional farms and 20% other. If the peaceful rural environment does not survive, new residents will not be attracted and existing residents would seek to leave if the impacts are unacceptable.
While the proposed use is permissible with consent in the RU2 Rural Landscape Zone under the LEP it is because it falls into the category of "any other development not specified in the zone". Mr Prattley is of the opinion that the proposed use has considerably greater impacts than many of the uses prohibited in the zone such as camping grounds, caravan parks eco tourist facilities tourist and visitor information, recreation facilities (indoor) or water recreation structures. He submitted that any application under the "permitted category" must be considered against the zone objectives of the zone. He then listed them and suggested that this development is not consistent with at least 7 of the identified zone 9 objectives.
Based on information received from Mr Rodger Willoughby from Gunning Agricultural and Water Solutions Mr Prattley said that over a ten year period traditional "rural farm" purchase had declined from around 70% of gross profit to 32% and that the shortfall had been made up by "lifestyle "residents enabling the businesses to survive and continue to provide services to the rural community.
The next resident to speak was Michelle Storey who resides with her husband in Berrebangelo Road, Gunning.
Ms Storey is a retired scientist with a PhD in theoretical physics. She said that she had critiqued the Noise Impact Assessment Report prepared by GoMoto lodged with the application and believed the presented analysis was flawed in that the characterisation of the noise impact in the report did not accurately reflect the negative impact of the noise on surrounding properties. Given that racing motocross bikes do not produce a steady hum sound but a series of highly variable tonal sounds (as bikes with high revving engines move between gears), Ms Storey said that the average sound energy over 15 minutes modelled seriously underestimated the noise impact of the development. She believed that the LA max should have been used in this situation. In addition, she said that the modelling did not take into account the fact that the noise levels of the bikes will also be influenced by the location of the tracks on the hill and wind changes. In this regard she believed that the development would be audible 10km away from the site as she had observed that the site was clearly visible from her neighbours' property located about 6kms away.
Ms Storey pressed upon the Court the quiet rural environment where the development is proposed. Noting that the background noise is presently dominated by birds and insects without any regular aircraft noise from the Canberra airport (she attached a map showing aircraft arrivals and departure flights paths for the last 12 months in the area which clearly by-passed the site). After assessing the development against the NSW EPA Noise Guide for Local Government Part 2 (NGLG) criteria for assessment of offensive noise rather than the "average sound energy" method adopted by GoMoto Ms Storey said that the answers to the checklist recorded in her submission demonstrate that, according to every criteria, in the NGLG there will be offensive noise from the proposed motocross circuit audible at nearby residences up to 10km on occasions. Ms Storey's written critique of the applicant's acoustic evidence was tendered without objection.
Gregory Meaker is the nearest resident to the development site. He resides with his family in a newly constructed home on a rural property called 'Cowl Cowl'. Mr Meaker's submission focussed upon the fragility of the soil on the site and surrounding area. He is concerned that the use of the site for a motocross facility will exacerbate the existing erosion on the site and cause significant change to the existing topography, biophysical and environmental ecosystems. He believes in the dryer summer months the land will be subject to greater erosion in areas where there is minimal track maintenance proposed. And, in the winter months the driving of vehicle to and across the site will be difficult.
Andrew Basnett and his extended family live on the properties called 'Woodbine' and 'Nerragundah' situated on the northern side of the proposed motor cross park. The run a merino wool and a meat business on 1200 hectares and have done so for 52 years.
The Basnett farm shares a 1.8km common boundary with the site. And, the proposed tracks are as close as 50m to that common boundary. On 18 April 2016 the Council approved the subdivision of his land into 5 x 80ha lots for the "purpose of extensive agriculture and dwelling houses". Mr Basnett believes that the approved subdivision is consistent with the zone requirements of the RU2 rural landscape under the LEP and that the proposed development is not a compatible adjoining use. He is concerned about noise impacts and dust emissions. Given the elevated location to the surrounding countryside Mr Basnett believes that the site is like an elevated natural amphitheatre overlooking his property and many others. He is concerned about noise impacts because lambing ewes will leave a new born lamb in the first day or two of birth if frightened by noise or unfamiliar activity. He checks his lambs from a distance to avoid this happening. Lower lambing percentages have a negative effect on the productivity of the business resulting in a reduced bottom line as does increased dust in the fleeces. As an active rural fire service member for 50 years Mr Basnett said he was concerned about fire hazard from the site particularly in the summer months. He told the Court that in summer it may not rain for three months. Smoking, whilst prohibited on the site, can occur outside the site and should a cigarette be carelessly thrown into the dry grass along the access road then the 1985 Woodbine fire (which resulted in 800 head of sheep being killed in the fire and 8000 ha of bushland destroyed and stopped 10km short of Gunning) is a real risk. With only one entry and exist to the site, Mr Basnett said that there is a real risk to life of people and stock in the event of a fire. There is only one small dam on the site to extinguish a fire and this, in his assessment, is inadequate and another reason why the site is unsuitable for the proposed use. Mr Basnett said that in his opinion the development will have a negative impact on the lives of all residents at home and working in paddocks within a radius of at least 2-10km.
Peter Barlow has resided at 681 Lade Vale Road, Gunning with his wife for 38 years. He is concerned about an increase in traffic along the road which presently has no line markings and is rated for driving at 100km per hour with no suitable opportunity for overtaking. Apart from cars and large trucks moving heavy machinery to the quarry and fertiliser business located at the western end of the road, Mr Barlow said that the route is also a school bus route. He said, as a rural road most people who use it are familiar with its separate use. For example, they know that several graziers regularly drive stock along and across the road as part of their farming practice more often than not at weekends. This is when the facility will be in operation and he is concerned that the bike park will attract people who do not know the area or these rural road uses. Some of them may take short cuts rather than use the most direct route to their destination and use the gravel roads leading onto Lade vale road. Mr Barlow told the Court that the western end of Lade Vale Road is a gravel road and is easily eroded and pot holed with narrow creek causeways and a concrete bridge just wide enough for two cars to pass. The T intersection where Lade Vale Road and Gundaroo Road meet is a well-known "Black spot" for the locals. The site has a narrow frontage and sight lines to the front gate are compromised. The front gate is very close to a 90 degree bend on a rise and visibility is very restricted. There is no space for queuing of cars with trailers waiting to get into the facility. Additionally, the area is prone to fog in winter and this also limits road visibility. At an exit rate of vehicles from the site every 2 to 3 minutes, he estimated that it would take up to 4 hours to empty the motocross of 200 vehicles in his opinion. He also raised concerns about fire egress and fire trucks accessing the site in the event of a fire. He said that the nearest ambulance is in Yass about 30 minutes away and the nearest hospital is in Goulburn 50 minutes away. Canberra hospital is 1 hour away from the site. In the event of a serious injury there is lack of emergency services in the area. In summary, he is of the opinion that the development is not a suitable use of this rural zoned land.
David Roche resides with his wife and 4 children near the site. His family has a wool production business - developed over 145 years - which concentrates on production of superfine wool. Mr Roche is concerned about the economic effect of the motocross on this rural business. In particular, the risk that those young mothers will walk away from their lambs if disturbed by the bikes. He explained his sheep' sensitivity to noise and said that for that reason he chooses not to use his quad bike to muster during lambing periods.
Mr Roche said that the bike facility is proposed to be located on land that adjoins his most sheltered lambing paddock where he keeps all his maiden ewes. He said "This puts the bike race track at odds to my best lambing paddock". Mr Roche is also passionate about wildlife in particular, birds and mammals. He said that is the reason why he purchased the property. He regularly walks his property spraying Tussock weed seedlings that blow in each year and encounters wildlife. The area is rich in fauna and diversity of species. While he is not an expert he believes the bike park will adversely impact on flora and fauna and the quality of life his family enjoys will be destroyed by noise and dust.
Theresa Robinson resides with her family at Mt Dixon Farm 6061 Gundaroo Road, Gunning. Her property is 366 hectares and shares a 2km common boundary with the applicant's land. Mrs Robinson said that her property produces lamb, wool, beef and 3 tonnes of free range eggs a week. The farm business is contracted to supply 4.2 tonnes of eggs per week by Christmas. It supplies some 60 local cafes, restaurants, farmers markets and IGA's in Gunning, Gundaroo, Canberra and Sydney. Mrs Robinson is a member of NSW Farmers, The Australian Egg Corporation and a delegate of the Poultry Information Exchange. She told the Court that there is currently a national egg shortage and she is very concerned about the bio security impacts of the proposed motocross facility on her egg and other farm businesses. In particular, the risks of the spread of disease, weeds and seeds and dust from the applicant's proposed use of the adjoining land. She said that some of these things can be transported onto the Site by car tyres, undercarriages of motorbikes, cars and trailers and spread by wind and animals. She is concerned about Avian Influenza and provided the Court with literature on the topic. Having battled Tussock weed in recent years (which is a noxious weed with a seed bank of 20 years) and spent over $40,000 to control half of her farm effectively for 2 years she does not want African love grass and Phytophora on her land. All freight vehicles that bring stock and fodder to her property are washed down before access. Most companies have a policy with this at their facility. The development has no such policy for its vehicles and bikes. In conclusion Mrs Robinson said: "Disease, weed, seed, bushfires and noise do not stop at fences. Our family works on the farm full time, not in an office or building but outdoors on the entire property. Out animals and family are used to little noise on the farm. The noise generated from this facility is not acceptable regardless of whether it is form the comfort of my home or while I am working in the paddocks. The motocross facility will generate offensive noise. In thunderstorms my chooks will drop their egg production by up to 25%; I have documented this in our daily diary. Chooks don't; like noise as it stresses them out, they run away and hide in their hen house and won't graze or eat. The motocross has an increased risk of fire. In the event of a fire I have no hope of trying to herd my chickens out of danger. We are the eastern side of the block and the first people affected. I have to order my chickens 6 months in advance; it takes a further 2 months for them to lay an egg size that is profitable. Out business could not survive that risk.

Acoustic evidence

The applicant accepts that the noise measurement parameters relied upon to inform the data as presented in the acoustic assessment report prepared by Guz box Design and Audio ( dated 20 May 2014) and lodged with the original application were unreliable (Exhibit 8 p5 Item 4). To overcome this issue and other deficiencies the applicant engaged a different acoustic firm to report on the amended application for the purposes of the hearing. The supplementary report was prepared by Neil Gross, of Wilkinson Murray. In response to that evidence the Council retained Graham Atkins of Atkins Acoustics and Associates Pty Ltd.
Both acoustic experts attended the view at the beginning of the hearing and accompanied the Court to the residences identified as sensitive noise receptors. At that time, and later in the Courtroom in Sydney, the experts provided oral evidence in addition to their written acoustic evidence. Mr Gross's written Statement of Evidence is (Exhibit F). Mr Atkins written Statement of Evidence is (Exhibit 7). The acoustic experts' joint report is (Exhibit 8).
To complicate matters, the acoustic experts relied upon different measures and guidelines to assess the likely noise generated by this recreational bike facility. Put simply, Mr Gross relied upon the guidelines in the Industrial Noise Policy (INP) and adopted an intrusive noise criterion of rating Background Level (RBL) +5dBA =(35dBA) at receivers surrounding the facility. Mr Atkins however, relied upon the ENCM and a criteria of background = (0dBA) because bike noise characteristics were more intrusive and annoying to other environmental noise sources.
The Gross assessment assumed the overall noise from motorbikes would not have annoying characteristics at the residences given their distance and the likelihood that noise will diminish as it blends with the ambient environment. So, in accordance with the INP, it did not warrant the addition of modifying factors. Although acknowledging that unfavourable winds will enhance noise levels by up to approximately 5-6dBA at times, he believed that they do not occur frequently enough to be called a "feature' of the site and therefore in accordance with the INP did not warrant consideration when comparing predicted or measured noise levels to the criteria.

(Wind effect)

Despite his initial view about wind effect as stated at [49], Mr Gross ultimately did consider this matter in some detail. Accepting that wind can have the effect of increasing or decreasing the level of noise at identified sensitive noise receptors - depending on its direction and intensity, Mr Gross undertook some wind analysis in this case in order to determine whether there should be an allowance for wind effect at each sensitive receptor. As there was no wind data specific to the Site, Mr Gross relied upon data from sources located between 50km - 100km away such as the Canberra Airport, Young and Goulburn. This data showed the wind recording at those locations to be about 10% and these reading were attributed to the Site.
Given that the Industrial Noise Policy (INP) assumes no allowance for a wind level of less than 30% Mr Gross concluded that there should be no allowance for wind to increase noise at sensitive residences in this case. However, if the wind meters required by the conditions of consent record unfavourable wind conditions, being westerly winds with a wind speed of between 1-5m/s at Mx2 in the morning, before the track is opened , and again at lunch time then he recommended that the use of that track should be restricted.
Mr Atkins believed that the wind data from weather monitoring stations 50-100km away cannot be relied upon for the Lade Vale Site. In the absence of reliable wind data he told me that wind should be assumed as a feature of the area and source to receiver winds assessed. He relied upon meteorological data which demonstrated that the three sites relied upon by Mr Gross recorded significant variations for the same time periods eg 16 June 8am Canberra (Calm); Young (SSW)2.5m/sec; Goulburn (East) 1.7m/sec. (Exhibit 8 at p7 Item 6).
That said, Mr Gross agreed that if his assumptions in relation to the INP were not accepted by the Court then the assessment would indicate non-compliance with the RBL = 5dBA "intrusive" noise requirements. The consequence of applying the INP =5dB modifying factor would be to add a further 5dBA to the predicted levels before comparing the levels to the INP "Intrusive criteria". The consequences of applying the "background + 0dB" approach from the superseded Environmental Noise Control Manual (ENCM) in relation to recreation motor vehicles (which has not been replaced by any alternative assessment procedure) would be to reduce the criteria by 5dBA.
Mr Gross rejected the assessment approach adopted by Mr Atkins which relies on the Environmental Noise Control Manual (ENCM) and the EPA Noise Guide for Local Government (NGLG). He thinks that the approaches outlined in the INP and Draft INP is more appropriate.
Mr Atkins is of the opinion that the ENCM guidelines (chapter 152) are appropriate for assessing noise from off road recreational motor sports as these criteria were developed to address the annoying characteristics of motorbike noise. He said that the background + 0dB criteria was developed and recommended on the understanding that bike noise characteristics were more intrusive and annoying than other environmental sources. Whereas the INP and the draft INP were developed to address industrial type noise sources and both the INP (section 1.3) and draft INP (section 1.5) state that the guidelines do not apply to "motor sport facilities". Mr Atkins was firmly of the opinion that motor bike noise should not be assessed against standard procedures.
The experts agreed that the only document which currently addresses noise from motor sport events is the (NGLG), which addresses motor sport as a worked example in Case Study 2 - Noise from Motor Sports Facility and also in (Table 1.3 p125 and 1.31). It recommends that noisy motor vehicles (including trail bikes) off road, on private property and public land such as parks etc. fall within the responsibility of the local council or the police and should be assessed against the offensive noise test.
The approach adopted in the NGLG under the Case Study 2 relies on methodologies to noise assessment within the INP which includes:

The sound power level of different types of racing vehicles ;
Addressing adverse weather conditions which affect noise propagation; and
Modifying factors to deal with potential annoying characteristics

The NRLG also provides a checklist for consideration of offensive noise. (The objector Dr Storey refers to this checklist (Exhibit 12)).
Much of the hearing was taken up debating the correct guidelines/policies for the measurement of noise in this case. Ultimately the comments and table in the joint report (which was amended during the hearing) provides a relatively clear snapshot of each experts' final position based on the various tests and methodologies for the same identified sensitive noise receptors (Exhibit F p2) Put simply. Mr Atkins believes that the residents will experience intermittent loud noises over the hum of the bikes.
On any measure the experts agreed that the identified residences proximate to the site are expected to experience noise levels very close to acceptable limits - without any allowance for the influence of wind (see Table at p8 Item 7 Exhibit 8 - despite the agreed revised L Amax figures to take account of the saddle). For that reason they agreed that the development is a "border line site". Despite this assessment, Mr Gross said that the Court should issue an approval of the application with conditions for testing the noise over a period of 12 months, and if noise impacts breached specified levels then consider the modification of the operation of the facility to achieve acceptable acoustic impacts at sensitive receptors. ie less bikes, fewer tracks open at the same time in certain wind conditions. To that end Mr Gross' recommends conditions which include:

a requirement that the development not generate sound levels at any nominated receivers to exceed (35dBA LA eq 15mins);
the installation of onsite noise and wind monitoring systems and 4 periodic inspections by a qualified acoustic expert appointed by the Council (without notice) from the identified properties during the first year of operation (conditions 20, 21, 22 and 23).

Mr Gross's approach assumes that an acceptable acoustic outcome is achievable even if this requires further modification of the operation of the facility after the issue of consent. His position is that actual noise levels will only ever be fully appreciated after the facility is up and running. Although after testing the L Amax levels associated with the MX1 Track for 40 experienced riders at the identified receptors and some additional locations Mr Gross did not believe that in practice the difference in LA max and LAeq would be large (see Exhibits 8, J, 15) in assuming acceptable noise levels are achievable Mr Gross concedes there is a potential for greater noise impacts from the operation of the facility if the OMP is not strictly adhered to (Exhibit 8 p9 Item 8) because:

Source noise levels from motorbikes could be higher than permitted by the OMP if not measured or policed properly;
Some modified bikes may result in annoying characteristics when assessed at the residential properties ,which result in the need to apply a 5dB modifying factor to the measured levels, which is likely to result in exceedance of criteria based on the 3 tracks operating at their nominated capacities with a total of 90 motor bikes;
Downwind propagation will increase levels on some days.

Mr Atkins was of the opposite opinion. Given that the audibility of LAmax noise levels from motor bikes on individual tracks is dependent upon the type of motorbike, noise from the bike, location, engine speed and skills of the rider, wind direction and the number of bikes operating, Mr Atkins concluded that during the 3 day operation, including both weekend days, that the development will generate unacceptable audible noise levels at sensitive residences such as R2 (despite Mr Gross's revised Lmax figure to take account of shielding by the saddle). These noise levels will be annoying (up to 5dBA above background), intrusive and adversely impact on theses residents rural amenity.
Relevantly, both acoustic experts labour the point that strict compliance with the OMP will be vital in the containment of noise from the facility. And, while Mr Gross believed that closing of the MX2 track under unfavourable westerly winds assisted in minimising the impacts of downwind propagation he accepted that there are no at source mitigation measures to effectively control the matters referred to in the first two dot points listed at above at paragraph 61 except by reducing motorbike numbers even further.

Consideration

The applicant submits that the protection of the environmentally sensitive land on the site is a bonus provided by this permissible development, and that without an approval of this DA the land will remain as it presently stands - unprotected, unweeded and unmaintained. In short, the application achieves the zone objective of maintaining areas of high conservation value vegetation. He also submits that as the use is not specifically prohibited under the LEP it can therefore be considered a "related purpose" for the purposes of aim 2(a) of SEPP 2008 - it offers an economic use and development of the rural land with appropriate measures to mitigate the activities which are identified as having a potential for land use conflict. The activities include noise, erosion, noxious weeds, and bushfire and onsite effluent disposal.
I accept that the conservation of environmentally sensitive areas of the site may be a positive aspect of the application. I also accept that the use is not expressly prohibited in the land use table. However, as Mr Wong states in the joint report (Exhibit 6 a p 6 at [35]) "the permissibility of development for a particular purpose in a rural zone under the LEP does not necessarily imply any such development is desirable in all the circumstances". The development must be considered and balanced against all of the evidence, including that given by the local objectors which form part of the public interest: S79C. This approach accords with a complete reading of the Court's reasoning in BGP Properties Pty Limited v lake Macquarie City Council [2004] NSWLEC 399 at [115] - [119].
In considering the community responses, an evaluation must be made of the reasonableness of the claimed adverse effect on the amenity of their land. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on their amenity. Needless to say, a fear or concern without rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact: Telstra v Hornsby shire Council (2006) 146 LGERA 10 at [192- 195].
The Council submits in this case that the residents' evidence (especially that received by the Court in the local hall at Gunning) was both reasonable and objective, and therefore should be given significant weight in my assessment of this application under s79C.
I agree with the Council's submission.
The residents who gave oral evidence at Gunning - articulated their concerns plausibly. Their evidence was well organised as each resident addressed a separate issue and generally it was not based on irrational or subjective fears. Where appropriate they supported their opinions by reference to relevant zone objectives or acoustic evidence or with reference to their current land use.
As the local residents explained in the summer months the land in this part of Gunning, including the site, can be dry and dusty. Soil erosion is a real problem in the area. After rain the area is soggy underfoot (as was apparent at the view). The closest resident to the site, Mr Meaker, explained to the Court the reasons why the soil in this area is prone to erosion. Given that proposed tracks will occupy much of the most agriculturally viable part of the site I accept Mr Wong assessment that the proposed use has the potential to exacerbate land degradation particularly soil erosion and this will negatively impact on the natural environment. The use is also likely to exacerbate the existing dust problems complained of by several of the local residents. While I am uncertain as to whether the erosion/ degradation of the rural land will render the site incapable of rural use indefinitely (as Mr Wong believes) it is not unreasonable to assume that that the track maintenance proposed under the OMP namely; wetting down and regrading when required - will not retain the topsoil or encourage the retention of native grasses to hold the soil in place such as to avoid long term damage. With up to 600 people and 200 vehicles and bikes traversing these areas when the facility is in use, the active component of the site is likely to be significantly eroded and degraded permanently.
On balance the evidence supports a finding that this proposal is at odds with at least three of the RU2 Rural Landscape zone objectives in the LEP. It does not encourage sustainable primary industry production by maintaining and enhancing the natural resource base or maintain the rural landscape character of the land or minimise the impact of development on the existing agricultural landscape character. These matters weigh in support of a refusal of the application on the basis that the site is simply not suitable for the proposed use: s79C (1) (c) of the EPA Act.
This conclusion is confirmed after a consideration of the views expressed by the local objectors about the conflict between the proposed use of this site and their adjoining agricultural land uses. As the residents' evidence makes plain the agricultural enterprises adjoining and nearby are likely to suffer both loss of amenity and also have a detrimental impact upon the agricultural use of their rural properties if this application is approved.
I accept the evidence of Mr Wong (Exhibit 10 at paragraph 3.1.3) as it accords with the views expressed by the residents and the observations of the Court at the site inspection. While I accept that the site is not readily visible from the road or surrounding properties the active component of the site will in time upon entry appear, depending on the season, as a dusty or soggy area within an otherwise rural landscape character. It could not be argued that the use satisfies the zone objective "To maintain the rural landscape character" in my opinion.
The anticipated noise from the tracks is "borderline acceptable" on any measure according to the parties' acoustic experts. Mr Gross invites the Court to approve of the application on a wait and see basis. He endorses a noise assessment programme (by a qualified acoustic expert 4 times a year over the first 12 months) in order to gauge whether he has correctly anticipated the noise levels generated by each bike track at each identified receptors. In the event that Mr Gross has misjudged the noise levels at the sensitive receivers he concedes that measures will need to introduced retrospectively such as a reduction in the numbers of bikes at the site. Meanwhile, the surrounding farms/residents, for that assessment period of 12 month, may endure unacceptable noise almost every weekend and Wednesday with disruption to their farming enterprises, some of which are substantial and their rural residential amenity.
The approach of "approve first and assess later" in this instance is not appropriate given the real potential for land use conflict. The operation of the facility will not be governed or controlled by Motor Cycle Australia therefore there is no obligation to satisfy their rules or noise limits (Despite reference to those limitations in the OMP). The acoustic experts' frank description of this application as a "borderline" case - under calm meteorological conditions - and Mr Gross' recommendation for approval on the basis of "strict adherence to the OMP" to ensure noise levels are appropriate does not give me much comfort. Particularly given the loose terms of the draft OMP. On my count 10 staff are required to undertake numerous activates throughout the day including: the registering of bikes on entry, counting the numbers of bikes entering and leaving each track to ensure maximums are not exceeded, checking bike engine sizes are 100cc or less on the MXJ track, restricting the use of MX 2 in unfavourable wind conditions ( after measuring wind speed at MX2 in the morning, before the track is opened, and again at lunchtime using a wind meter), ensuring bikes off the track enter slip lanes at walking pace or 1st gear, maintaining tracks, watering tracks to keep dust down , carrying out random spot check bike noise level tests - as well as cleaning of facilities , generally supervising behaviour on and off the track and directing traffic to nominated car parks into and pout of the facility. The management of up to 600 people including 90 riders of varying levels of experience by 10 staff to ensure the amenity of the surrounding properties and safety of the riders and spectators seems optimistic given the detail provided in the OMP.
The adjoining residents need some assurance that the acoustic impacts generated by the bikes within the facility will be managed to achieve acceptable noise level to avoid unreasonable impacts on their commercial agricultural land uses/residential amenity. Unfortunately, for the applicant the acoustic evidence does not support such a finding - but rather raises grave concerns. In the event that Mr Atkins predictions are correct the facility will generate unacceptable noise levels at sensitive receptors on Saturday and Sundays when more people would wish to attend to their farms or stay at home. I accept Mr Atkins assessment that the bike noise at residential properties (with its acknowledged characteristics) would be audible, dependent upon the number and condition of the bikes and metrological conditions and would be annoying, intrusive and impact on their rural amenity.
On balance the acoustic evidence supports a conservative approach because the experts accept that this is a borderline case which is dependent upon strict compliance with the OMP. Monitoring of winds on site to gauge potential noise levels at sensitive receptors and the closing of tracks when riders are already in the facility is obviously problematic and only strengthens the Council's case that the motocross facility is in the wrong location. I accept the Council's submission that the OMP requires micro-management to ensure that the reasonable acoustic amenity of surrounding residents is maintained. I am not satisfied on the evidence that the measures proposed in the OMP can practically be implemented; and therefore do not believe that intended protections afforded by those measures are likely to be achieved.
I also have concerns about Lade Vale Road as the sole access road into and out of the site. The OMP provides no satisfactory detail about traffic management. The residents are concerned about queuing along Lade Vale Road and frankly so am I. On arrival most visitors must stop inside the gate to complete registration/indemnity documentation at the office before being directed to a particular car park .The facility anticipates up to 200 cars each day at the one entry point to the site. As Mr Wong said, Lade Vale Road is a two lane bitumen road between Gundaroo Road and the site, which is used on an ongoing basis by a range of vehicles including passenger cars and/utilities towing box trailers, ridged bodied trucks and semi-trailers. The residents use the same access road to move their stock from time to time. Lade Vale Road also provides access to an existing quarry.
The residents believe that Lade Vale Road is a seriously inadequate road for the proposed use and that the concept of a single entry and exist to a bushfire prone area is irresponsible. Having driven the road to the site I appreciate the residents' evidence about the nature of the existing road. As Mr Barlow told the Court, the site has a very narrow road frontage and the entry gate is very close to a 90 degree bend on a rise and visibility is restricted. There is no passing bay and no space on the road to accommodate queues of cars waiting to get into the facility. The area is prone to morning fog especially during winter. The locals know the road and its use and accommodate farming practices accordingly. They are concerned that visitors to the site may not appreciate these issues and this will generate safety issues. Both planners agree that the proposed driveway entrance from Lade Vale Road to the subject site needs to be upgraded and while this could be facilitated via conditions of consent the extent of the road works remains at issue. Mr Blackburn-smith suggests signage and line marking of the road is sufficient together with the s94 contribution and the Council wants the more extensive road works outlined in condition 12 of its draft conditions of consent (Exhibit 4). I do not believe that the application has satisfactorily dealt with the traffic issues raised by the Council and the residents.

Conclusion

For the reasons stated I have decided that a conditional approval of this development is not supported on the evidence. Put simply, the development is not suitable for this rural site: s79C (1) (c); or in the public interest: s79 C (1) (e).
Accordingly, the Court orders: 1. The appeal is dismissed. 2. The exhibits are returned. Susan Dixon Commissioner

Amendments 09 August 2016 - Typographical errors corrected on the cover sheet, and in paragraph 3 (1). 16 August 2016 - Typographical errors corrected on the cover sheet, and in paragraphs 10, 49, 70 and 73. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2016

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (2)

Cited By (1)