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[2005] VCAT 2267
defendant. Declaration made pursuant to section 149B of the Planning and Environment Act 1987 (Vic) that: (a) the airstrip on the subject land is ancillary to the use of the land for agricultural and domestic...
A wind farm company sought a declaration that a private airstrip on a neighbouring rural property required a planning permit, hoping to gain an opportunity to object to the airstrip's location. The airstrip was used only occasionally for recreational flying and personal transport by the landowner. The Tribunal found that the airstrip was 'ancillary' to the primary agricultural and residential use of the land, meaning it did not constitute a separate use requiring a permit. The Tribunal noted that private airstrips on rural properties are commonly ancillary uses, and the absence of a specific permit requirement for airstrips in the planning scheme (unlike heliports) supported this conclusion. The Tribunal also emphasised that the landowner who builds an airstrip bears the risk of interference from neighbouring developments, and civil aviation guidelines have no regulatory force in planning law. The application was dismissed with no costs awarded.
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Declaration pursuant to section 149B Planning and Environment Act 1987 - Use of land for airstrip ancillary to use for residential and agricultural purposes on a rural property- No planning permit necessary.
1 Pursuant to section 149B of the Planning and Environment Act 1987 I make the following declarations:
a
The airstrip on the subject land is ancillary to the use of the land for agricultural and domestic purposes.
b
No planning permit is required for the airstrip.
Mr Trevor Ludeman, town planner, of Project Planning and Development Pty Ltd
1 The applicant has sought a declaration under section 149B of the Planning and Environment Act 1987 that a planning permit is required for use and development of an airstrip on the subject land at 698 Cross Forest Road, Cobden, which is owned by Mr Les Mulholland. I have decided not to make a declaration because I consider the airstrip is ancillary to the use of the property for agricultural and domestic purposes.
2 The subject land is located to the north west of the Cobden township in western Victoria. There are two dwellings on the property and it is used as the principle residence of Mr Mulholland. The property has a total land area of 825 acres, approximately half of which is used for blue gum timber production, 100 acres is leased to the Corangamite Shire Council for the regional landfill, and the remaining 275 acres are used for grazing and the two dwellings.
3 The land is in a Rural Zone under the Corangamite Planning Scheme and no overlays affect it.
4 Approximately 18 months ago Mr Mulholland constructed an airstrip on his property and built a hanger shed. The airstrip is approximately 600 metres in length and has a grass surface which is graded to a swale drain on each side. It is located parallel to Cross Forest Road, 42 metres west of the road boundary. The southern end of the airstrip is located only several metres from the southern boundary of the subject land.
5 The airstrip is used for the purpose of recreational flying and personal transport to and from the property. The use is only occasional because Mr Mulholland does not yet have a pilots licence. The hanger is used to accommodate his ultralight aircraft.
6 No planning permit was obtained for either the airstrip or construction of the hanger because the council took the view that the airstrip was ancillary to the use of the property for agricultural and domestic purposes.
7 Naroghid Wind Farm Pty Ltd has applied for a declaration because it believes it should have had an opportunity to object to the airstrip due to the potential effect of the airstrip on its business plans to establish a wind farm. It has applied for a permit for a wind farm on various parcels of land adjoining and in the vicinity of the subject land. The permit application has been referred to the Minister for Planning and has been the subject of a planning panel hearing. I am aware that the planning panel has submitted its report and recommendations but they have not been publicly released and the Minister for Planning has not yet made a decision.
8 One of the proposed wind turbines is located on land adjoining the southern boundary of the subject land close to that boundary and immediately in line with the airstrip. The applicant is concerned that the panel may recommend that this wind turbine should be moved, or removed from the project altogether, on the basis that it may interfere with the use of the airstrip on the subject land. The wind turbine intrudes into the approach and take off area that should be clear of objects as specified in CAPP 92-1(1) "Guidelines for Aeroplane Landing Areas", which is a Civil Aviation Advisory Publication published by the Civil Aviation Authority. On behalf of the applicant, Mr Upson submitted that any decision by the Minister to require removal of this turbine from the wind farm project would have significant economic consequences for the applicant and the landowner on whose property the wind turbine is proposed to be located. The applicant contends that a planning permit should have been required, which would have given it an opportunity to object. As it is, there has been no opportunity for any input as to the location of the airstrip or to require consideration of the impacts that it might have on other persons.
9 The applicant really put very little in the way of argument as to why a planning permit is required. Rather, most of Mr Upson's submissions related to the economic effects of locating the airstrip where it is, its lack of merit and the lack of need for such an airstrip by Mr Mulholland. His primary assertion was that the airstrip ought to require a permit because of its effects and the lack of any need for it. It was also suggested that the airstrip created a de facto easement over the adjoining property, but there is no legal basis for such an argument and I give it no weight.
10 The main issue to determine in this case is whether the airstrip is ancillary to the use of Mr Mulholland's land for agricultural and domestic purposes or constitutes a separate use of land.
11 The airstrip is not used for commercial aircraft, nor is it used to assemble and distribute goods or passengers. Therefore it cannot be said to come within the definition of transport terminal nor within the ordinary meaning of airport, which is nested under the "transport terminal group" in clause 75 of the planning scheme. It is not a heliport or a helipad and therefore the permit requirement of clause 52.15 of the planning scheme does not apply.
12 Airstrip is an innominate use that would be a section 2 (permit required) use in the Rural Zone if it constitutes a separate use of land. In Pacific Seven Pty Ltd v City of Knox [1]the Tribunal said:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed "ancillary uses", the word "use" in this context is a misnomer. They are really activities which are an ancillary part of the primary use.
13 There have been a number of cases where an airstrip or helipad has been held to be ancillary to use of the land for residential or rural activities: see Warringah Shire Council v Raffles[2]; Ellison v Shire of Newham and Woodend[3]; and Dewez v Shire of Healesville[4]. The finding in each of these cases that the helipad or airstrip was ancillary to the primary use of the land was dependant on the facts of each case. It does not necessarily mean that an airstrip or helipad will always be ancillary to the primary use of the land, but in the present case I find no distinguishing features that would result in a finding that this airstrip is a separate use in its own right. The subject land is a large rural property used for agricultural and residential purposes in country Victoria. There is no suggestion that the airstrip is used for other than personal and recreational purposes. Whether Mr Mulholland has access to another airstrip at Cobden, four minutes away, is irrelevant. The use of rural land for an airstrip for private or recreational use or in conjunction with the use of the property is not uncommon in country Australia and in ordinary circumstances would be ancillary to the primary use of the land. If airstrips, even when ancillary to another use, are considered to have sufficient potential adverse effects to justify requiring a planning permit for them in all cases, a specific provision should be included in the planning scheme as has occurred with respect to heliports and helipads with clause 52.15.
14 However, just because no permit is required and the airstrip has been constructed and is in use, does not guarantee that it will always remain suitable for use as an aeroplane landing area. The CAPP 92-1(1) Guidelines for Aeroplane Landing Areas are advisory guidelines to be used by pilots in command of aircraft to determine the suitability of a place for the landing and taking off of aeroplanes. They have no regulatory status and offer no ongoing protection in a planning sense for an airstrip. The onus rests on a land owner to construct an airstrip in a location that can retain its suitability for use as a place for the landing and taking off of aeroplanes irrespective of what may occur on adjoining land. A landowner who constructs an airstrip close to adjoining land cannot necessarily expect to constrain the future use of that land in order to protect the useability of the airstrip. The situation is different with respect to public facilities, where protection of their useability is justified in the community interest and which is one reason for the Airport Environs Overlay. But a private airstrip is no different to any other private use of land. The effects on its use by a competing use or development must be weighed up in the same way as in any other planning permit assessment. There will be situations however, where an airstrip may be affected by an as-of-right use or development on adjoining land. Thus the landowner to the south of the subject land could construct a large shed close to his boundary in line with the end of the runway which, provided the shed complied with the planning scheme, would not need a permit irrespective of whether it intruded into air space that should be clear of objects as recommended under CAPP 92-1(1).
15 The point is that it has been Mr Mulholland's choice to locate the airstrip where he has, but there is no guarantee about its continued compliance with the CAPP 92-1(1) guidelines and suitability for the landing and taking off of aeroplanes any more than the applicant had a guarantee that land would not be used in a manner adverse to its proposal for a wind farm.
16 So far as the planning panel is concerned which considered the permit application for the wind farm by Naroghid Wind Farm Pty Ltd, it is entirely a matter within its discretion as to the relative weight it places on the benefit of a wind turbine versus the benefit of not interfering with the use of a private airstrip. The applicant has had its opportunity to make submissions to the panel and to put arguments going to the weight of these matters. The Tribunal cannot influence this outcome. Likewise it cannot make decisions based on speculation about the judgement the panel may make or on the economic consequences to the applicant of such judgement.
17 The Tribunal's role is to characterise the use of land given a set of facts. I find on the facts of this case that the airstrip on the subject land is ancillary to the use of that land for residential and agricultural purposes and consequently no planning permit was required for it. My conclusion is that the council's decision not to require a planning permit is correct.
18 At the conclusion of the hearing both Mr Mulholland and the council made an application for costs. I do not consider that there is any basis to depart from the normal practice of the Tribunal set out in section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that each party is to bear their own costs in the proceeding. I do not consider that any of the circumstances outlined in section 109(3) which might justify an award of costs has been established in this case. The proceedings may have been an inconvenience to Mr Mulholland and the council and both may have incurred expense in defending those proceedings, but the economic consequences for the applicant are potentially high and it was legitimate for the applicant to test its concerns by seeking a declaration from the Tribunal. Although declarations are part of the Tribunal's original jurisdiction (as distinct from its review jurisdiction) there should be no automatic assumption that costs will always be awarded in such cases if an application is unsuccessful. I do not consider this is a matter where an award of costs is appropriate.
[1] (1993) 11 AATR 325 at 329
Upson
Corangamite SC
Declaration made pursuant to section 149B of the Planning and Environment Act 1987 (Vic) that: (a) the airstrip on the subject land is ancillary to the use of the land for agricultural and domestic purposes; and (b) no planning permit is required for the airstrip. No order as to costs.