In brief

The case of Ward & Anor v Rockhampton Regional council & Anor [2014] QPEC 67 concerned two appeals heard concurrently in the Planning and Environment Court. The appeals related to a decision of the former Rockhampton Regional council to conditionally approve the development application for a material change of use for an established private grassed airstrip (Tungamull airstrip) made by R C Toole Pty Ltd.  The development application was made consequently upon enforcement proceedings brought by the council.

The two appeals involved a submitter’s appeal challenging the council's decision and an appeal by Toole against certain conditions of the approval. The submitters, Jeffrey Ward and Leanne Lever who were opposed to the proposed development were occupiers of nearby residences.

The court found that the proposed development was significantly in conflict with the council's planning scheme as it was not a consistent use and not located to minimise adverse impacts on the amenity of adjacent properties. The court was not persuaded that sufficient grounds existed to approve the proposed development despite the conflict. Consequently, the submitter’s appeal was allowed and Toole's conditions appeal was dismissed on the limited ground that there was no development approval.

The proposal would permit a combined total for helicopters and fixed wing aircraft takeoffs and landings each year much greater than the then existing facility

The Tungamull airstrip initially operated in an unconstrained way until such time Toole gave undertakings about its use, in the context of the enforcement proceedings, which ultimately restricted the number of flights to a maximum of six per week for both takeoffs and landings. 

As a consequence of the enforcement proceedings, Toole submitted a development application for the Tungamull airstrip.  The proposal would permit a combined total for helicopters and fixed wing aircraft of 520 takeoffs and landings each year (on average, approximately 1.4 takeoffs and 1.4 landings per day), which was of much greater use than the then existing facility.  As part of the proposal, Toole also sought flexibility to have significantly more movements on some days.     

Court accepted the evidence from the nearby residents about the annoyance which the Tungamull airstrip’s activities had caused them in the past

Mr Ward and Mrs Lever contended psychological and acoustic amenity impacts from the Tungamull airstrip. The court was satisfied that the Tungamull airstrip was sufficiently safe for use, but considered by reference to Australian Standard 2021-2000, the airstrip was likely to cause some psychological amenity impacts including psychological factors such as fear of aircraft crashing. 

In considering acoustic amenity impacts from the Tungamull airstrip, the court observed that the aircraft noise generated by, both aircraft passing overhead and aircraft takeoffs and landings to and from the Iron Mill airstrip located on the adjoining property (which was also owned by Toole) was part of the existing amenity of the broader locality.  As such the Tungamull airstrip would not introduce a substantially different type of noise.  

The concern about acoustic amenity mainly related to residences which had the greatest exposure to activities associated with the Tungamull airstrip being the Mr Ward, Mrs Lever and Mr Miller’s residences.  By the time of the hearing, Mr Miller had sold his property as a result of the stress associated with the operation of the Tungamull airstrip. 

Evidence from Mr Ward, Mrs Lever and Mr Miller about the annoyance which the Tungamull airstrip’s activities had caused them in the past was put before the court and was accepted by the court.  Toole proposed a management plan imposing a number of operational constraints to address the potential for future annoyance of residents which included designating flight paths with minimum separation distances from the affected residences and limiting the number of aircraft movements.    

Court was not persuaded that the number of movements sought to alleviate the adverse noise impact was acceptable and found the operational controls to be difficult to monitor and enforce at a practical level

The parties’ acoustic experts assessed the potential for noise impact.  All of the experts considered the noise level to be high and intrusive whilst noting that the impact could be acceptable if the number and frequency of the events was sufficiently constrained. 

As there was no applicable standard or guideline, the experts ultimately relied on their professional judgment in expressing their views about the extent of the restriction on movements necessary to achieve an acceptable outcome.  In this regard, the court acknowledged that published standards or guidelines might not provide an answer in every situation but noted that the conclusions reached by the experts appeared to lack any compelling scientific or other intellectual basis within their field of specialist knowledge. 

The court was referred by Mr Ward and Mrs Lever to the decision of Bassingthwaite v Roma Town Council (2011) QPELR 63 in which it was stated that “reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses.”  Having considered both the evidence of the experts and the affected residents, the court was of the view that the proposed operation of the Tungamull airstrip would cause adverse noise impacts. 

Whilst the adverse noise impacts could potentially be kept within reasonable limits by movements controls, the court was not persuaded that the number of movements sought would be acceptable.  The court also examined the nature and implications of the operational controls proposed by Toole and found them to be problematic from a monitoring and enforcement perspective particularly at a practical level.

Court found the proposed operation of the Tungamull airstrip was in significant conflict with the council’s planning scheme and there were no sufficient grounds to justify approval despite the conflict

The subject site was in the Rural zone under the council’s planning scheme.  The Tungamull airstrip was characterised as an undefined use under the planning scheme, which itself raised a point of conflict with the planning scheme.

In its consideration of the extent of conflict with the planning scheme, the court observed that the intensity of the proposal was not similar to surrounding rural purposes although noting that the grass airstrip and the hangars could be said to be of a similar scale to farm sheds.  Further, the court was not satisfied that the substantive purpose for which the Tungamull airstrip was established was to support preferred uses in the Rural zone.

As noted above, the proposed operation of the Tungamull airstrip would cause adverse amenity impacts in particular on the nearby residences.  Even if the Tungamull airstrip were operated to minimise adverse impacts, it was not located to minimise adverse impacts on the amenity of adjacent properties.  The court therefore found that it was in significant conflict with the relevant provisions of the planning scheme. 

In considering whether there were grounds to support approval of the development application despite the conflict with the planning scheme, the court recognised that airstrips in rural areas could provide a benefit for aircrafts that were in need of landing facilities in remote localities.  The court observed that the subject site was relatively proximate to Rockhampton and there were seven private or public airfields within 30 kilometres of the site including the Mill Iron airstrip to provide light aircraft and helicopters landing facilities.

Further, the court did not find there to be an economic demand from residents of the area for the proposed facility or anything more than a minor need for such facilities.  Overall, the court found that the grounds of support being sought were weak and Toole had failed to discharge the onus of demonstrating that the development application should be approved.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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