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Bucknell v Townsville City Council[2019] QDC 280

Bucknell v Townsville City Council[2019] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION:

Bucknell v TCC & Anor [2019] QDC 280

PARTIES:

Peter Adrian Wentworth Bucknell & Frances O'Callaghan

(Applicant)

v

Townsville City Council

(First Respondent)

and

Ace Aviation & Engineering Pty Ltd

(Second Respondent)

FILE NO/S:

D89/17

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

16 December 2019

DELIVERED AT:

Townsville

HEARING DATE:

29, 30 April and 1 May 2019

JUDGE:

Coker DCJ

ORDER:

  1. Application dismissed.
  2. Each party has liberty within 28 days of the deliveryof this judgment to provide written submissions asto costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – EXISTING TOWN PLANNING CONSENT – CONSIDERATION OF EXTENT OF SUCH CONSENT – where consent was given to the use of land as a ‘private airstrip’ – where the Second Respondent purchased the land subject to that consent – where the Second Respondent conducted certain works upon the property – where the Applicants purchased an adjourning property – where the Applicants relocated a home to property in proximity to the ‘private airstrip’ – where the Applicants sought declarations as to the use of the Second Respondent’s property subject to the consent obtained – where the Applicants sought injunctive relief against the Second Respondent’s use of the land in certain respects – where consideration is given to the terms of the town planning consent and the opportunities available pursuant to that consent. 

ENVIRONMENTAL PROTECTION – OFFENCES – significance of consent to operate a ‘private airstrip’ – whether noise occasioned by the operation of the ‘private airstrip’ constitutes an offence in accordance with the legislative requirement – whether the use of the land pursuant to the consent causes ‘serious environmental harm’ by way of noise.

LEGISLATION:

By-Laws of the Council of the City of Thuringowa 1988 – Chapter 3. 

Environmental Protection Act 1994 (the EPA) – s 505;

Environmental Protection (Noise) Policy 2008;

Local Government Act 1936 (LGA) - 33(2c)(c);

Integrated Planning Act 1997 (IPA) – s 6.1.23 (1)(2);

Planning Act 2016 (Planning Act) – s 286;

Planning and Environment Act 1990 (LG(P&E)Act – s 4.12, 4.13, 4.14, 8.10;

Sustainable Planning Act 2009 (The SPA) - s 456, 603, 604, 801.

CASES:

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, considered;

Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637, cited;

Development Watch Inc v Maroochy SC and Ors [2007]

QPELR 488, considered;

Eames v Brisbane City Council and Anor [2010] QPELR 504, considered;

Firefast Pty Ltd v Council of the City of Gold Coast [1999]

QPELR 200, considered;

General Caterers Pty Ltd [1991] 1 Qd R 125, considered;

Grace Brothers Pty Ltd v  Willoughby Municipal Council

[1980] 44 LGRA 400, considered;

Hawkins and Izzard v Permarig Pty Ltd v Brisbane City

Council (No. 1) (2001) QPELR 414, cited;

Matijesevic v Logan City Council [1984] 1 Qd 599, cited;

Moore v Kwiksnax Mobile Industrial & General Caterers Pty

Ltd (1990) QPLR 213, considered; 

Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334, cited;

Transpacific Industries Group v Ipswich City Council [2013] QPELR 70, considered.

COUNSEL:

E Morzone for the Applicant 

K Wylie for the First Respondent 

J Lyons for the Second Respondent 

SOLICITORS:

Wilson Ryan Grose Lawyers for the Applicant 

Keir Steel Waldon Lawyers for the First Respondent 

Connolly Suthers Lawyers for the Second Respondent

  1. [1]
    On the 17th of May 2017, Peter Adrian Wentworth Bucknell and Frances O'Callaghan, herein after referred to as the Applicants, filed an originating application, naming the Townsville City Council, herein after referred to as the First Respondent, and Ace Aviation and Engineering Pty Ltd, ACN 113 025 264, herein after referred to as the Second Respondent, as the First and Second Respondents. Therein, they sought orders in these terms;  
  1. A declaration pursuant to section 456 of the Sustainable Planning Act 2009 (The SPA) that the Second Respondent’s use of the land, formally described as Lot 601 on E124 123 (The Land) for the purpose of air services and short term accommodation (as defined in the First Respondent’s planning scheme, Townsville City Plan 2014)  are uses for which no effective development permit has been issued.
  1. A declaration pursuant to section 456 of the SPA, that the Second Respondent’s use of the land for the purpose of “Outdoor Entertainment” (as defined in paragraph 8(c) of the grounds) is a use for which no effective development permit has been issued.
  1. An interim enforcement order, pursuant to section 603 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out on the land, air services and short term accommodation (as defined in the First Respondent’s planning scheme, Townsville City Plan 2014) save where that use is authorised by an effective development permit.
  1. An interim enforcement order to pursuant to section 603 of the SPA that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out, on the land “Outdoor Entertainment” (as defined in paragraph 8(c) of the grounds) save where that use is authorised by an effective development permit.
  1. Enforcement orders pursuant to section 604 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out, on the land, air services and short term accommodation, as defined in the First Respondent’s planning scheme, Townsville City Plan, save where that use is authorised by an effective development permit.
  1. Enforcement orders pursuant to section 604 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out, on the land, “Outdoor Entertainment” (as defined in paragraph 8(c) of the grounds) save where that use is authorised by an effective development permit.
  1. Orders pursuant to section 505 of the Environmental Protection Act 1994 (the EPA) that the Second Respondent, by itself, its servants, or agents, cease carrying out activities on the land, insofar as those activities constitute and offence pursuant to the EPA;
  1. The Second Respondent pay the applicant’s costs of and incidental to this proceeding.
  1. Such further declarations or orders as the Court may think appropriate.  
  1. [2]
    On the first day of hearing, the 29th of April 2019, an amendment of the originating application was sought and not opposed. Those amendments, through relevant to any final orders that might be made, do not need to be detailed at length here, because as counsel for the Applicants explained:

“The amendments essentially change slightly the characterisation of activities to certain defined uses under the Plan.”

  1. [3]
    Counsel went on to note that the original application previously described uses in an undefined way, but that the amendments now clarify them to be certain uses under the Plan.  
  1. [4]
    At the commencement of the hearing, there was a document described as an amended statement of agreed facts, also handed up.  That amended statement of agreed facts provides a convenient outline of the situation as it stands between the Applicants and the Second Respondent, as well as in respect of the involvement of the First Respondent. The amended statement of agreed facts is in these terms:  
  1. The land, the subject of the originating application, is located on the corner of Jones Road and Rowe Road, Woodstock, in the State of Queensland, and is described as Lot 601 on E124 123 (the property).
  1. The Second Respondent, in its capacity as trustee, became the registered owner of the property on, or about, 18 March 2005, which it holds on trust for the McKenzie Family Trust.
  1. On or about 27 May 1996, Peter Adrian Wentworth Bucknell (of the Applicant) became the lessee of perpetual leases over adjoining land, being lot 25 on plan E124 347, Lot 27 on plan EP21, Lot 29 on EP72, and Lot 2 on EP248 (the adjoining land).
  1. On or about 15 February 2019, Peter Adrian Wentworth Bucknell (of the Applicant) became the registered owner of Lot 25 on Plan E124 347, Lot 27 on Plan EP21, and Lot 29 on Plan EP72.  
  1. Peter Adrian Wentworth Bucknell (of the Applicant) is the current registered owner of Lot 25 on Plan E124 347, Lot 27 on Plan EP21, and Lot 29 on Plan EP72, and currently holds a perpetual lease over Lot 2 on EP248.  
  1. Between July 1996 and September 1999, the Applicant relocated a Queenslander home to the adjoining property, and have lived on the adjoining property since that time.  
  1. Both the property and the adjoining property:  
  1. Were formally located in the city of Thuringowa Local Government Area; and 
  2. Are currently located in the Townsville City Council Local Government Area.
  1. From 22 October 1988, the town planning scheme applying to the property was the town planning scheme for the city of Thuringowa, gazetted on 22 October 1988 (the 1988 planning scheme).  
  1. Pursuant to the 1988 planning scheme, the property was located in the “Rural B Zone”.  
  1. The 1988 planning scheme including a “division (ii) – Table of Zones”  which identified:
  1. Each zone within the Local Government Area as being identified within “Column I”;  
  2. Purposes with “Column III” were identified as “Purposes for which buildings or other structures may be erected or used or for which land may be used without consent of the Council”; 
  3. Purposes within “Column IV” were identified as “Purposes for which buildings or other structures may be erected or used or for which land may be used with the consent of the Council”; and
  4. Purposes within “Column V” were identified as “Purposes for which buildings or other structures may not be erected or used for which land may not be used”. 
  1. Under the 1988 planning scheme for the Rural B Zone;  
  1. A number of discrete purposes are described as being “Column III” items;  
  2. A number of discrete purposes are described as being “Column V” items;  and 
  3. Column IV is described as “Any purposes other than those referred to in Column III or Column IV” 
  1. “Private airstrip” was defined in the 1988 planning scheme to mean:  

“Privately owned premises for the landing and departure of aircraft.  The term includes facilities provided at such premises for the housing, servicing and maintenance of aircraft and for passengers and goods carried by the airstrip”.

  1. “Caravan park” was defined in the 1988 planning scheme to mean:

“The parking of caravans and the pitching of tents;  the term includes, as an ancillary use, the erection and use of cabins and relocatable               homes               for               providing               overnight               or               holiday accommodation, where such cabins are provided within the caravan park.”

  1. “Outdoor entertainment” was defined in the 1988 planning scheme to mean:

“Any activity, purpose or pursuit which affords or is calculated to afford spectator interest, amusement or entertainment and which is conducted predominantly in the open air.  Without limiting the generality of the foregoing, the term includes but is not limited to those activities, purposes and pursuits set out in Appendix VII hereto but does not include a park as herein defined;  

APPENDIX (VII)

AMUSEMENT PARK

CIRCUS

DOG RACING TRACK

DRIVE-IN THEATRE

EXHIBITION

GO KART TRACK

GYMKHANA

MOTORCYCLE TRACK

RACECOURSE

RODEO YARD

SHOOTING RANGE (CLAY PIGEON, RIFLE, PISTOL, ETC)

SHOWGROUND

SPEEDWAY

SPORTING ARENA

STADIUM

TRAIL BIKE COURSE

TRAVELLING CIRCUS

TROTTING TRACK

WILD LIFE OR FAUNA PARK”

  1. Under the 1988 planning scene, for the Rural B Zone, the following uses were not a Column III or Column V purpose, and were therefore a Column IV purpose:  
  1. “Private Air Strip”;  
  2. “Caravan park”;  and 
  3. “Outdoor entertainment”.  
  1. On or about 20 March 1991, an application for the consent of the City of Thuringowa was lodged (‘the town planning consent application’) seeking issue of a town planning consent permit for:  
  1. Use of the property for the purposes of a “private airstrip”;  and
  2. Erection on the property of a “hanger” building.  
  1. The town planning consent application was lodged and decided pursuant to:  
  1. The Local Government Act 1936 (“LGA”);  and
  2. The 1988 Planning Scheme.  
  1. On or about 15 May 1991, the Thuringowa City Council approved the town planning consent application, subject to conditions (“the 1991 approval”).  
  1. Other than the 1991 approval, no development approval exists for the carrying on of any use or the making of any material change of use in respect of the property.  
  1. Pursuant to the Townsville City Plan 2005, the property was located in the rural precinct.  
  1. Pursuant to the Townsville City Plan 2014, the property was located in the rural zone.  
  1. [5]
    Reference is made in paragraphs 16 to 18 of the amended statement of agreed facts to the application for consent and to the approval of the town planning consent application, subject to conditions.  The terms of that consent and the further conditions were as follows:  15th May, 1991.  

Applicant:  Malboorindi Investments Pty Ltd.  

Land owned by:  Malboorindi Investments Pty Ltd.  

Land described as: Lot 601 on E.124123, Parish of Wyoming, and situated on Jones Road, Woodstock 

Consent use:  Private Airstrip – as shown on plan NO’D3013P1

File no:  C5/91  

Schedule of conditions

  1. The use – Private Airstrip – shall be substantially commenced within a period of two (2) years from the date of the approval of the application by the council.  Should the use not have been substantially commenced prior to the expiry of such period, or should the land ceased to be used for the purpose of the consent for any continuous period of twelve (12) months thereafter, the council may take action to revoke this consent.  
  1. Plans and specifications for all civil and site works to be constructed as part of this project shall be submitted to and approved by council prior to any development works being commenced.  
  1. The proposed private airstrip shall be constructed in accordance with the provisions of all relevant Acts, regulations, by-laws and adopted policies of the council and shall, in the opinion of the council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.  
  1. The owner of the subject land shall contribute on an annual basis towards the cost incurred by the council on the maintenance of Jones Road.  Such contribution shall be payable to the council within thirty (30) days of the issue by council of an invoice for the payment of same and shall be calculated as follows.  

C$ = MC$ X PASTM

      JRTM

Where “C$” = the contribution to be paid towards the cost incurred by council on the maintenance of Jones Road for the financial year concluding on 30/6/92 or for each subsequent financial year, as the case may be 

Where “MC$” = the cost incurred by council on the maintenance of the subject road to a reasonable formed and gravel sheeted surface for the subject financial year 

Where “PASTM” = the number of vehicle movements entering the subject land through the private access, as shown in the information supporting the subject application, as estimated by the City Engineer  

Where “JRTM” = the number of vehicle movements Jones Road, as estimated by the city engineer.  

The city engineer shall assess the respective numbers of vehicle movements annually by the use of traffic counters for a minimum period of four (4) weeks prior to the calculation of the contribution payable being invoiced to the owner.  “PASTM” shall be based on vehicle movements at the boundary of the subject land and “JRTM” shall be based on vehicle movements at the Woodstock end of Jones Road.  

  1. The private airstrip shall be operated in accordance with the requirements of the Civil Aviation Authority.  
  1. The private airstrip shall be fenced to a standard sufficient in the opinion of the council to prevent the entry of livestock onto subject land, details of the proposed fencing to be approved by council before works are commenced.  
  1. All effluent shall be disposed of in the boundaries of the subject land, and adequate provisions shall be made to confine any overflow from the effluent disposal system within the subject land in accordance with standard practices, to the satisfaction of the Chief Environmental Health and Parks Officer.  No effluent shall be permitted to be discharged into any water course, gulley or natural storm water drainage without the written approval of the Queensland Water Quality Control Council having first been obtained.  
  1. A supply of potable water shall be available at the private airstrip to the satisfaction of the council at all times.  
  1. Toilet facilities shall be provided on the subject land for the users of the private airstrip in accordance with the provisions of the standard sewerage by-laws, to the satisfaction of council.  
  1. In the event that the applicant fails, in the opinion of the council, to comply with these conditions or the requirements of any other Act, regulation or by-law, the council may take action and conclude procedures, under the Local Government Act 1936-1991, for the revocation of the subject town planning consent and, in that event, no compensation shall be payable by the council to the application in respect of such revocation.  
  1. [6]
    What is clear from that consent is that there was, at least from the 15th of May 1991, an approval pursuant to the Local Government Act 1936 and the Town Planning Scheme 1988 for the city of Thuringowa.  What has occurred since that time however is that there have been numerous legislative changes, but all have included necessary transitional clauses to maintain the integrity of previous consents. An appreciation of those transitional provisions and their ultimate outcome is necessary in the determination of this matter.  
  1. [7]
    Accordingly, the following should be noted:

The Consent Application was for:  

  1. a)use of the land as “Private Air Strip”;  and 
  2. b)erection of a proposed building, being a hanger with dimensions of 10m x 10m x 5m.

As at the date of lodgement of the Consent Application:  

  1. a)the Local Government Act 1936 (LGA) was in effect.  
  2. b)The town planning scheme for the city of Thuringowa (1988 Scheme) was in effect;  
  3. c)the by-laws of the council of the city of Thuringowa were also in effect (Thuringowa by-laws) which, pursuant to section 33(2c)(c) of the LGA formed a part of the 1988 scheme and 
  4. d)the land:  
  1. (i)
    Fell within the Thuringowa City Council Planning Scheme area as that term was defined in part 1 of section 1 of the 1988 scheme;  and 
  2. (ii)
    fell within the rural B zone under the 1988 scheme.  

It is relevant to note that under the 1988 scheme and the legislative provisions in effect at the time, a clear distinction was drawn between:  

  1. a)The use of land for a purpose;  and
  2. b)The erection or use of buildings or structures for a purpose.  

Under the Thuringowa by-laws relevantly in effect:  

  1. a)Chapter 23 section 2(1) provided;  

“(1) Any person who desires to obtain the consent of the council under the town planning scheme in force in the town planning scheme area, shall make application in the form required by the clerk, and shall lodge with such application an application fee of an amount determined in accordance with a scale or scales of fees determined by the council for resolution…”

  1. b)Chapter 23 section 2(2) prescribed other requirements for applications for consent of council;  and 
  2. c)Chapter 23 sections 2(4) and (5)(a) relevantly provided:  

“(4) Every application made pursuant to this by-law shall, if it complies with the requirements of this chapter, be referred by the clerk of the council and the council shall, subject to the Act, decide the application.

(5) (a) Upon an application for consent, the council may, subject to the Act – 

  1. (i)
    give it’s consent;  or 
  2. (ii)
    refuse to give it’s consent;  or
  3. (iii)
    give it’s consent, subject to reasonable and relevant conditions.”

Council was required to assess the Consent Application pursuant to:

  1. a)the matters prescribed in chapter 23, section 6(1) of the 1988 scheme;  and
  2. b)section 33(18) of the LGA.

Subsequent to the lodgement of the consent application, but prior to its decision by council, on 15 April 1991, the LGA was repealed and replaced by the local government (Planning and Environment Act 1990 (LG(P&E)Act).  

The LG(P&E)Act:  

  1. a)controlled applications for town planning consent in ss 4.12, 4.13 and 4.14;
  2. b)provided at s 8.10:

8.10 Savings and transitional

(3) (a) each town planning scheme (including the town plan for the city of Brisbane) approved by the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act, is to continue to have force and effect as if it was a planning scheme approved by the Governor in Council pursuant to this Act.

(7) (a) each approval, consent or permission (together with any conditions attaching there to) granted by a local authority or the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act, is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, made pursuant to this Act.

(8) (a) an application of any kind to which this Act refers, and duly made to a local authority prior to the commencement of this Act, is to be dealt with as if this Act had not commenced.

(b) an application referred to in paragraph (a) and approved by a local authority or the Governor in Council, where the case may require, is to be taken, for the purpose of subsection (7)(a), to be an approval granted by a local authority or the Governor in Council, as the case may be, prior to the commencement of this Act and in force immediately prior to the commencement of this Act.

Accordingly, having regard to the transitional provisions described above, notwithstanding the repeal of the LGA:

  1. a)the 1988 scheme, including the Thuringowa by-laws, was taken to be a “planning scheme” approved pursuant to the LG(P&E) Act;  and
  2. b)the consent to application was to be assessed and decided as if the LGA had not been repealed.

On or about 17 July 1991, Thuringowa Council decided to approve the consent to application, and grant consent for use of the land for a “private airstrip” and erection of a “hangar”, subject to conditions (consent permit).  

Having regard to section 8.10 (8)(b) of the LG(P&A) Act, the consent permit was taken to be a “town planning consent permit” given pursuant to section 4.13 (12) the LG(P&E) Act.  In that context, section 4.13 (16) relevantly provided:

“(16) where a permit is issued pursuant to subsection (12), the right to use premises and to erect, re-erect or modify any buildings or other structures for the purposes specified in the permit is, subject to conditions contained in the permit or any modifications made there to pursuant to section 4.15, to attach to the land and be binding on successes in title and continues in force until –

  1. (a)
    it is revoked pursuant to section 4.14;  
  2. (b)
    it lapses in accordance with subsection (18);  
  3. (c)
    the use ceases to be a lawful use pursuant to section 3.1;  or
  4. (d)
    it is superseded by the commencement of another use.”
  1. [8]
    The consent permit included a number of conditions including specifically condition 3 in these terms:

The proposed Private Air strip shall be constructed in accordance with the provisions of all relevant Acts, regulations, by-laws and adopted policies of the council and shall, in the opinion of the council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.  

In the context of condition 3, information lodged in support of the subject application included a site plan, which included an indicative layout for the runway and access track, and reference to two structures, described as:

  1. a)proposed 10 metre by 10 metre hangar building;  and
  2. b)proposed male and female septic toilets.

The two structures referred to above were constructed in a form consistent with the Site Plan.

Accordingly, in circumstances where condition 3 of the Consent Permit was complied with, any owner or occupier of the land was free to use the land for purposes consistent with “private air strip”, subject to compliance with other conditions of the permit as have previously been detailed.

On 30 March 1998, the LG(P&E) Act was repealed and replaced by the Integrated Planning Act 1997 (IPA).  

Within the IPA, transitional provision section 6.1.23 relevantly provided (examples removed): 

“Continuing effects of approvals issued before commencement

6.1.23 (1) This section applies to – 

  1. permits (also “continuing approvals”) issued under section 4.13 (12) of the repealed Act including modifications of the permits under section 4.15 of the repealed Act, in force immediately before the commencement of this section;  and

  1. (2)
    despite the repeal of the repealed Act, each continuing approval and any conditions attaching to the continuing approval have effect as if the approval and the conditions were a preliminary approval or development permit, as the case may be…

Development permits were a type of development approval and were duly defined.  

Approvals under this act

3.1.5

  1. (3)
    A “development permit” authorises assessable development to occur –

  1. to the extent stated in the permit;  and
  2. subject to – 
  1. the conditions in the permit; and
  2. any preliminary approval relating to the development that the permit authorises, including any conditions in the preliminary approval.

Accordingly, as a consequence of section 6.1.23 (1)(2) of the IPA, from 30 March 1998 the consent permit was taken to be a development permit under the IPA. 

On 18 December 2009, the IPA was repealed and replaced by the Sustainable Planning Act 2009 (SPA).

Within the SPA, transitional provisions section 801 relevantly provided:

801 continuing effect of development approvals

  1. (1)
    A development approval under repealed IPA that is in force immediately before the commencement continues as a development approval under this Act.
  2. (2)
    For this Act, a development approval continued in force under subsection (1) is taken to have had effect on the day it had effect under repealed IPA.”

Accordingly, as a consequence of section 801 of the SPA, from 18 December 2009 the consent permit was taken to be a development permit under the SPA.

On 3 July 2017, the SPA was repealed and replaced by the Planning Act 2016 (Planning Act).

Within the Planning Act transitional provision section 286 relevantly provided:

“286 documents

  1. (1)
    This section applies to a document under the old Act that is in effect when the old Act is repealed.
  2. (2)
    Subject to this part, the document continues to have effect according to the terms and conditions of the document even if the terms and conditions could not be imposed under this Act.
  3. (3)
    This Act applies to the documents as if the document had been made under this Act.
  4. (4)
    To remove any doubt, it is declared that the document took effect or was made, given or received when the document took effect or was made, given or received under the old Act.

  1. In this section –

Document

  1. Includes –

  1. An approval (a development permit or preliminary approval, for example), including a deemed approval and a decision taken to have been made under the old Act, section 96(5);

Accordingly, as a consequence of section 286 of the Planning Act, the consent permit continues to have effect and is taken to be a development permit issued under the Planning Act.  

  1. [9]
    There does not seem therefore to be any suggestion on the part of the applicant that this is not the case and that there is in existence a consent to use the private airstrip.  What is clearly in dispute, however, is whether the onsite activities, the subject of the application, are activities being undertaken as authorised by the consent permit.  The issues, at least from the perspective of the applicant, are detailed below.  
  1. [10]
    The central question as to whether a particular activity conducted on a property is an existing lawful use or involves the carrying on of assessable development without a permit are the following:  
    1. (a)
      The extent of the lawful existing use rights in existence pursuant to the development approval granted by the former Thuringowa City Council on the 15th of May 1991:
    2. (b)
      Whether any lawful existing use rights arising from the carrying on of any exempt or self-assessable uses under each of the relevant planning schemes since the use started;  and 
    3. (c)
      Whether since the introduction of the concept of “a material change of use” from the commencement of the Integrated Planning Act 1997, there has been a material change in the intensity and scale of the use such as to constitute a new development.
  2. [11]
    Thereafter, the applicant details the nature of the approval given within the consent, specifically relying upon clause 3 of that consent, which refers to the requirement that the private airstrip shall:

Substantially comply with the proposal as detailed in the information lodged in support of the subject application.

The information lodged in support of the development application identified the applicant emphasises the following:

  • one airstrip;
  • one hangar (12 x 12 metres);
  • one amenity block;
  • one access track to the south;
  • one tank and stand.
  1. [12]
    In his report of the 27th of July 2018, Stephen Motti acknowledged that there was clear evidence of additional facilities built onsite to:

Accommodate the housing, servicing and maintenance of aircraft and for passengers and goods carried by the aircraft within the times of the defined use.  

  1. [13]
    Mr Motti also went on to note that building approvals had been sought in relation to some of those additional facilities and he identified a number of approvals that had previously been given, including approvals given on the 10th of December 1992, the 4th of May 1999, the 8th of November 2002 and the 11th of April 2011.  Additionally, Mr Motti noted the existence of a number of buildings that clearly do not have current building approvals, which would be required to be obtained either for those additional structures or for modifications that had been made to any existing structures.
  1. [14]
    What is abundantly clear is that there has been continued use of the private airstrip since the consent was given in 1991, and evidence that was given also would suggest that it was used in that capacity prior to any consent having actually been obtained.  What is argued by the applicant is that the protections afforded by the transition provisions of the various Acts, as I have referred to them, provided for existing lawful use but did not extend to a material change of use of the premises, and what is apparent, says the applicant, is that there has been a material change of use of the premises from that which was sought and approved in 1991.
  1. [15]
    The applicant further argues that whilst the original use was clearly protected, if there was a material change in the intensity or scale of the use, then there could be regulation of the use to the extent of the change.  That was emphasised by counsel for the applicant in his final submissions, where Mr Morzone of counsel said the following: 

MR MORZONE:   Thank you, your Honour.  Your Honour, the primary issue in this case seems to come from this concept that this use approval is unlimited.  And with respect to my learned friends, that is a novel and extraordinary thing to say because the use is described in the approval very clearly in a limited way.  If it wasn’t intended to be limited, it would have been described simply as private airstrip, and it wasn’t.  And that’s not unsurprising because it is – it is and it was common practice to have uses constrained by the way in which plans attached to the approval showed them.

  1. [16]
    The contrary argument that the approval contemplated variation in the level of use over time is encapsulated in the report of Mr Motti at point 3.01.1 through to 3.03.5.  There Mr Motti says the following:

Air Services

The applicants seek a declaration that the second respondent’s use of the land for air services is being carried on without an effective development permit because the current use of the land by the second respondent for air services exceeds the scale and intensity authorised by any existing lawful use rights and the second respondent’s use constitutes a material increase in the scale and intensity of the use authorised by the existing lawful use rights because:

  1. (a)
    The development application makes reference to only one hangar;
  1. (b)
    Additional structures have been erected since the commencement of the use, with or without development approvals (and these structures are all maintained in the carrying out of the use);
  1. (c)
    There has been an increase in the number of take offs on the premises since the commencement of the use;
  1. (d)
    There has been an increase in the number of landings on the premises since the commencement of the use;
  1. (e)
    There has been an increase in the number of structures on the premises since the commencement of the use;
  1. (f)
    The second respondent’s current use of the premises now also consists of the operation of a flight training school.

3.01.2 In my view, the approval contemplated variation in the level of use of the private airstrip over time.  

3.01.3 I am of this view as the approval did not seek to specify the type, number or purpose of flights.  In my experience, council typically impose conditions should they wish to expressly direct outcomes with respect to frequency, thresholds, hours of operation, etcetera.  Such conditions were not imposed in this instance.

3.01.4 Condition 4 of the approval is also relevant in informing my view.  It established a requirement that the periodic assessment of the number of vehicles using Jones Road in order to ensure contributions are commensurate to the level of activity being undertaken.

3.01.5 In my experience, the conditions such as condition 4 are used to accommodate change in the levels of use over time.  The condition would be redundant had council otherwise expected further applications to be required for the private airstrip use.  

3.01.6 In this regard, I note the city planner’s comment included in the report to council under agenda item 7 of the 15th of May 1991.  (Attachment F, refer to page 61.)

The issue arises as to requirements for the maintenance and upgrading of Jones Road.  The road is currently a good standard gravel road and as it is anticipated, the proposal will not create a significant increase in the level of traffic.  Initially it may be considered adequate.  The use has the potential to develop in the future and therefore may cause problems.  Consideration is needed to be given to maintenance or contribution requirements in this regard.

3.01.7 While in my view variation in the level of activity is accommodated by the approval, I note that does not mean it is unfettered.  Operations are to be in accordance with the requirements of the Civil Aviation Authority (condition 5) and are to observe other relevant legislative requirements (condition 10).

Short-term accommodation

3.02.1 The applicant seeks a declaration that the second respondent’s use of the land for short-term accommodation is being carried on without an effective development permit because the second respondent does not have an existing right to lawfully use the land for short-term accommodation because:

  1. (a)
    Users of the airfield stay overnight on the airfield prior to early morning flights;  and
  1. (b)
    The “American barn building” at the airfield is used by a person for accommodation purposes;
  1. (c)
    The use of the land for the purposes identified in paragraphs 3.02.1(a) and 3.02.1(b) are not authorised by any existing lawful use right or affected development permit;  and
  1. (d)
    The use of the land for the purposes identified in paragraphs 3.02.1(a) and 3.02.1(b) constitute a material increase in the scale and intensity of the use authorised by the existing lawful use right.

3.02.2 I have read the affidavit of Mr Robert McKenzie dated the 20th of July 2018 and note Mr McKenzie’s advice at paragraph 48 of this affidavit that:

  1. (a)
    Users of the airfield sometimes pitch a tarp over the wing of the aircraft and camp at the airfield;
  1. (b)
    On a few occasions, pilots have brought a caravan onto the property and stayed in the caravan overnight or for the weekend;
  1. (c)
    When there was a flying instructor providing flying instructions from the property, the instructor would camp in an overnight caravan and on occasions pilots would camp at the site overnight during the week;
  1. (d)
    The second respondent has never charged a fee for allowing the users of the premises to camp or park their caravan on the site;
  1. (e)
    The American-style barn located on the property is not used for accommodation purposes.

3.02.3 In my view, allowing users of the airfield to infrequently camp at the airfield for a short period of time at no charge:

  1. (a)
    Does not amount to providing short-term accommodation as that term is defined in the first respondent planning scheme;  or
  1. (b)
    Amount to a material increase in the intensity or scale of the use of the land being ancillary to the approved use.

Outdoor entertainment

3.03.1 The applicant seeks a declaration that the second respondent’s use of the land for the purpose of publicly advertised fly-ins, entertainment, the sale of food and beverages, the use of showers and toilet facilities, and paid accommodation for caravans and campsites (outdoor entertainment) is a use for which no effective development permit has been issued and:

  1. (a)
    Is the start of a new use of the land;
  1. (b)
    Is a use not authorised by any existing lawful use rights;
  1. (c)
    Is a use that constitutes a material increase to the scale and intensity of the use authorised by the existing lawful use right;
  1. (d)
    Is a use that is not permitted as a right under the relevant planning instruments;
  1. (e)
    The outdoor entertainment use is not ancillary to any lawful use of the premises.

3.03.2 The applicant further maintains that the second respondent’s use of the land for outdoor entertainment constitutes the making of a material change of use and that the use constitutes:

  1. (a)
    A start of the new use of the land;  and/or
  1. (b)
    A material increase in the intensity or scale of the use of the land.

3.03.3 I have read the affidavit of Mr Robert McKenzie dated 20 July 2018 and note that:

  1. (a)
    The second respondent has accommodated two fly-in events at the private airstrip in the 13 years that he has operated the airfield.  Those events utilised the private airstrip over the Easter long (weekend – sic) and brought together pilots and passengers of private aircraft;
  1. (b)
    At the two Easter fly-ins accommodated by the second respondent, entertainment was provided for the airstrip users by way of a live band which operated from the main hangar between the hours of 7 pm and 10 pm on the Easter Saturday night;
  1. (c)
    Before both of the fly-in events the second respondent spoke with the Townsville City Council and was advised that he did not require any permit to provide the live band entertainment and also contacted the Stuart Police Station, who advised him that they had no requirements for the entertainment;
  1. (d)
    The only food sold at the fly-in events was frozen barbecue packs and eggs and bacon for breakfast, which were issued to patrons at cost price;
  1. (e)
    The patrons provided their own beverages and no beverages were sold at the event, other than soft drinks that were sold for a gold coin donation;
  1. (f)
    Campsites, swag sites and caravans were made available free of charge to the private airstrip users;  and 
  1. (g)
    The fly-in events were promoted to the owners of private aircraft around the North Queensland region and not to the general public.

3.03.4 In my view, it is common practice for sporting and community groups to hold events for the purpose of gathering and for fundraising.  The two fly-ins that have been accommodated by the second respondent had been attended by owners and passengers of private aircraft only and have not been offered for public spectacle.  Spectators are not invited to the fly-in events and they are not promoted or allowed to advertise outside of the fly-in community.  Similarly, camping at the airfield is infrequent and only owners and passengers of private aircraft are permitted to camp at the site and camping is not offered to the general public.  

3.03.5 In my opinion, these activities are within the bounds of the approved land use, namely:

Privately-owned premises for the landing and departure of aircraft.  The term includes facilities provided at such premises of the housing, servicing and maintenance of aircraft and for passengers or goods carried by aircraft using the airstrip.  

  1. [17]
    The two positions referred to herein reflect the two contrary views held with regard to the current use of the land and whether it falls within the contemplation of the current consent.  The principles applying to the interpretation of such permission has been the subject of commentary.  What seems clear is that there are three specifically established principles.  They are:
    1. (a)
      The requirement to interpret permits on their face with limited regard being had to extrinsic materials;
    2. (b)
      The consequence of ambiguity in permits;  and
    3. (c)
      The fact that interpretation of conditions in permits is a question of law. 
  1. [18]
    As to the first of those principles, the starting point in relation to any consideration of the scope of development that might be authorised by development permits is that they must be construed on their face and wherever possible without regard to extrinsic material.  Counsel for the first respondent emphasised in their outline that such matters had been the subject of prior consideration by the Planning and Environment Court.  
  1. [19]
    Reference was made to Hawkins and Izzard v Permarig Pty Ltd v Brisbane City Council (No. 1) (2001) QPELR 414 where his Honour Judge Brabazon QC considered the role of extrinsic material in the interpretation of development approvals.  There his Honour said:

“The principles about interpreting local authority approvals must be kept in mind.  As a general rule, development consents are public documents which operate for the benefit of successive owners of the land and they should be construed without reference to extrinsic evidence.

The basic principle is that reference may be properly made to those documents which are either actually incorporated in the approval or are incorporated by reference into it.  Generally speaking, apart from such documents which are incorporated, it is not possible to go outside the approval document in considering its meaning.  Even an application should not be referred to unless it has in whole or in part, expressly or by necessary implication, been incorporated in that consent.”

  1. [20]
    His Honour went on, however, in that judgment to note a little later as follows:

There is some room for extrinsic evidence, as the cases show.  Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition.  That would be particularly so where the purpose of the approval is evident.  If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval.

  1. [21]
    In considering those comments, Judge Rackemann in Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637 noted in paragraph 7 of that judgment the following:

Each approval must speak according to its written terms, construed in context, but having regard to its enduring function.

  1. [22]
    Similarly, when considering the principles relevant to the construction of an approval, the thoughts of District Court Judge Wilson SC, as he then was, in Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334 are instructive.  There his Honour relevantly observed as follows:
  1. Where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the landowner;
  2. If a condition is imposed which restricts an approval, it should be expressed fairly;
  3. In construing an approval, the search is not for what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended;  each approval must speak according to its written terms construed in context but having regard to its enduring function;
  4. It has long been recognised that use rights are determined from the approval itself, which may include other material by express or necessary implication;
  5. The nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council;
  6. In construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for.  The words should not be scrutinised in the same way as words used by the parliamentary drafts-persons;
  7. Extrinsic evidence in the form of expert evidence may be admissible to explain technical terms.  This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood;  and
  8. Extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval.  This may include identification of things like existing vegetation and specific features referred to by the conditions.
  1. [23]
    It would seem clear, therefore, that the nature and scope of the use permitted by a development approval must be determined broadly.  In the same vein, any ambiguity should be construed in favour of the permit holder, as was submitted on the part of the first respondent.  Justice Connolly, with whom Justice of Appeal Matthews agreed, explained in Matijesevic v Logan City Council [1984] 1 Qd 599:

Planning decisions are apt to have considerable effects on the value of property and, in my judgment, it would accord with principle where planning approvals are ambiguous to construe them in a way which places the least burden on the landowner.

  1. [24]
    Similarly, in Hawkins and Izzard (supra), Judge Brabazon QC opined:

In Queensland the Court of Appeal has held that because planning decisions are apt to have considerable effects on the value of property, it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the landowner at the time.  Putting the matter another way, according to the usual principles of construction, the contra proferentum rule might be applied if there is an ambiguity.  

Also, in construing the consent, those who are likely to read such a consent should be kept in mind.  For example, in a simple case, it has been held that a local authority’s documents should be read not with an excessive regard to any technical words and phrases found in it, but as a communication between laymen;  the authority on the one hand and the householder/ratepayer on the other.

  1. [25]
    In other words, the principle is that ambiguous conditions should be read in favour of the person subject to the approval and that has certainly been confirmed.  
  1. [26]
    Thirdly, and it is significant in this matter, it is clear that the decision is one for the court and is not to be taken on some other basis, such as upon the acceptance of the evidence of one expert witness over another.  Assistance might certainly be gathered from an expert, such as a town planner, as to the meaning of a technical term or phrase, but that does not extend to their assessment of the meaning or scope of an approval, though, again, assistance can be provided in that regard.
  1. [27]
    Here the applicant says that the evidence establishes that activities go far beyond the scope of the original consent and that such activities continue to be carried on.  These activities include the following:
    1. (a)
      The landing and departure of more than one aircraft;
  1. The use of the five hangars for the housing of more than one aircraft, including in:
  1. The hangar approved in 1991 but extended in size;  and
  2. Four additional hangars;
  1. Housing, service and maintenance of more than one aircraft;
  2. An aircraft flying school or training facility conducted by an independent flying instructor or instructors and students;
  3. Recreational flying events or fly-ins whereby people are invited or permitted to fly into the property and additional aircraft are housed on the property for a weekend or a number of days;
  4. Short-term accommodation with outdoor entertainment, including live entertainment, provision of barbecue facilities and packs, breakfasts and camping sites, use of shower and toilet facilities, and the provision of food and drinks;
  5. Accommodation with guests being provided with:
  1. Overnight or short-term accommodation on the property;
  2. Camping or caravan sites on the property;
  3. Food and drinks, including barbecue packs and breakfast;
  4. Shower and toilet facilities on the property;
  5. Storage and refuelling of aircraft;
  1. (h)
    Entertainment, including by way of live entertainment, provision of barbecue facilities and packs, breakfasts and camping sites, use of shower and toilet facilities, and the provision of food and drinks;
  2. (i)
    Caravan and camping sites and facilities;
  3. (j)
    Use of buildings or caravans or camping for overnight accommodation;
  4. (k)
    The erection and use of an additional number of structures erected on the property since the commencement of the use for aircraft services;
  5. (l)
    The hire of aircraft;
  6. (m)
    The sale of new and pre-loved aircraft or ultralights;
  7. (n)
    Private aircraft use in excess of daytime hours;
  8. (o)
    Performance of aerobatics.
  1. [28]
    The applicant says that none of these activities are activities that were permitted pursuant to the original consent given and that the carrying on therefore of such activities constitutes the use of the property for purposes other than those for which permission has been granted.  The use of the property for purposes not contemplated in the consent are said by the applicant to include very specifically the following:
    1. (a)
      Air services;
    2. (b)
      Short-term accommodation;
    3. (c)
      Outdoor sport and recreational activities; (d) Tourist attraction;  and/or (e) A tourist park.  
  1. [29]
    Insofar as air services are concerned, the argument seems to be centred upon the terms of the consent given in 1991 and that what occurs at the private airstrip is greater in scale and intensity than what was approved originally.  This greater scale or intensity is suggested to be exampled by the more significant numbers of landings and departures, the increase in the number of facilities for the housing, servicing and maintaining of aircraft, and the greater abundance of facilities available for passengers or goods, carried by aircraft into the airstrip.
  1. [30]
    It is argued that what is now occurring is greater in scale and intensity than what was detailed in the information that was contained within the application for consent.  What is therefore argued is that the greater scale or intensity constitutes a material change of use and that it is a fresh, assessable development.
  1. [31]
    The other purposes, to which I have made reference and are detailed as (b) to (e) above, are said to be without a lawful right of use and were each of themselves new and distinct from what was contemplated in the original consent that was given.  
  1. [32]
    The position of the second respondent is to say that considering particularly the decision in Serenity Lakes (supra), the approval in this case does not include any restrictions on the hours of operation or limits upon the scale of use available for the airstrip.  They argue, therefore, that the applicants cannot read in restrictions that do not appear on the face of the approval, and insofar as the ancillary matters relating to the use of a private airfield is concerned, the proper approach is as detailed in the letter by the first respondent to the Queensland Ombudsman of the 11th of September 2000.  There the council specifically says the following:

Following the receipt of a letter from Nehmer McKee and Partners and having noted the advice contained in the letter, Council considered the “fly-ins” as an   ancillary use of the airstrip which was approved in 1991.  The reasons Council dismissed the events as an outdoor entertainment are as follows:

  1. (1)
    The fly-ins involve the use of aircraft which are permitted by the approval.
  1. (2)
    The scale and frequency of the activities are such that Council would not normally regard as an outdoor entertainment.
  1. (3)
    The events as stated by Nehmer McKee and Partners are considered to be social gatherings with minor organised activities.  There is some level of participation by family and friends of the pilots but this is ancillary to the approved use.
  1. (4)
    Council is advised and accepts that these particular events draw limited numbers of spectators and are focused upon only those persons immediately involved in participation of the “fly-ins”.
  1. [33]
    The first respondent is therefore supporting the position of the second respondent.  The argument of both is detailed in the outline of the first respondent and is as follows:
  1. Whilst the application refers to “an affected area approximately 41,212 square metres”, matters that would tend against the approval applying to only a part of the land comprise:
  1. (a)
    The fact that the consent permit does not include any such limitation relevantly providing on its face:

Land described as:  Lot 601 on E.124123, Parish of Wyoming, and situated on Jones Road, Woodstock.

  1. (b)
    The site plan does not depict any boundary or demarcation, and on the left-hand side of the plan the following text is included:

Property description, lot 601 on plan E.124123, site area 64.75 hectares.

  1. (c)
    There are no other matters in the conditions that would indicate a requirement to refer to specific parts or areas of the land.
  1. In this context, it is simply impossible to determine with any level of certainty which part of the land is the “affected area” referred to in the consent application, such that it would be inappropriate to attempt to subsequently apply a restriction to the consent permit that does not plainly appear on its face.  
  1. [34]
    The argument goes on as follows:
  1. It is this context that condition 3 must be considered in.  In circumstances where the airstrip was described on the site plan as “existing airstrip”, the only onsite works described in the consent application was the 10 by 10 metre hangar, such that, to the extent that there is any implied reference in condition 3 to hangars, either by reference to their “construction”, or by them being in “substantial compliance” with the application material (including the site plan), such reference must be construed as being associated with the hangar approval and would not otherwise prohibit or fetter the land use approval component of the consent permit.
  2. Accordingly, if, during the life of the LG (P&E) Act, the owner of the land wished to erect a second hangar, that would be regulated by that Act and the 1988 scheme as comprising the “erection or use of building or structure” for a purpose such that a second consent permit may have been required.  However, and critically, a “combined” application for the “use of land” also would not be required because the land already benefitted from the land use approval component of the consent permit.
  3. However, the requirement was obviated upon the repeal of the LG (P&E) Act, and the induction of the IPA.
  4. Under the IPA, the planning schemes no longer regulated the “erection or use of buildings for specific purposes”, and instead introduced the concept of planning schemes regulating, through the use of development permits, “development”.
  5. Development comprised:
  1. (a)
    Carrying out of building work;
  1. (b)
    Carrying out plumbing and drainage work;
  1. (c)
    Carrying out operational work;
  1. (d)
    Reconfiguring a lot;  and
  1. (e)
    Making a material change of premises, with “premises” being defined as:

Premises means –

  1. (a)
    A building;  or
  1. (b)
    Land whether or not a building is situated on the land.
  1. Development has been defined and controlled in a similar manner under the SPA and Planning Act.
  2. The consequence of this change is that, following repeal of the LG (P&E) Act, even if the then owner of the land wished to apply for consent to erect or use an additional hangar on the site, he or she would be incapable of doing so.
  3. Accordingly, following the introduction of the IPA and under the SPA and Planning Act, the land use approval component of the consent permit continues to operate as a “development permit”, such that the land could continue to be lawfully used for purposes consistent with private airstrip, which includes the use of facilities for the housing, servicing and maintenance of aircraft, and for passengers, subject to any new buildings being subject to appropriate development permits to authorised development in the form of the carrying out of building work.
  4. As to this latter issue, Mr Motti in his affidavit exhibits development permits issued under the IPA for building work for hangars and sheds dated 4 May 1999 and 8 November 2002.  Further, the land’s standard planning and development certificate shows a further development permit for building work given under the SPA for another onsite shed.
  5. In short compass, the Council’s position is that, since the introduction of the IPA the consent permit did not prohibit or preclude erection of additional hangars, in circumstances where:
  1. (a)
    The consent permit authorised the use of the entirety of the land for “private airstrip”, which was relevantly defined as “privately-owned premises for the landing and departure of aircraft.  The term includes facilities provided at such premises for the housing, servicing and maintenance of aircraft, and for passengers or goods carried by aircraft using the airstrip”, which is sufficiently broad to authorise use of the land for the airstrip and hangars and other structures associated with the onsite activities;
  1. (b)
    The consent permit did not contain any express fetters, such as:
  1. (i)
    A condition precluding the erection or use of other hangars on the land;
  1. (ii)
    Constraints associated with hours of operation, type of aircraft use (training or otherwise), or aircraft movement numbers;  or
  1. (iii)
    An express requirement that the land be maintained in exact conformance with the layout described on the site plan.  In this latter context, ongoing compliance with that site plan could not be envisaged as being practicable, as it would preclude the erection or use of the balance part of the land for other uses, such as private dwelling house, or other rural associated buildings and structures;
  1. (c)
    The IPA and SPA introduced the concept of a “use” as “including any use incidental to and necessarily associated with the use of the premises”, such that the use of the hangars would be said to be incidental to and “necessarily associated” with the use of the land as a private airstrip;  and
  1. (d)
    Having regard to the principles of construing permits described above, and the fact that from the IPA onwards the construction of buildings was regulated by development permits for building work, an implied fetter against ongoing use of the land for its approved use (including the use of additional hangars), ought not be found unless it is clear and unambiguous on the face of the permit, which is not the case in this instance.
  1. [35]
    The first respondent then goes on specifically to note:
    1. In a similar context, in Transpacific Industries Group v Ipswich City Council [2013] QPELR 70, Robin QC DCJ considered an application by a quarry development permit holder who sought a declaration that in circumstances where the permit was silent on the matter of tonnage, there was no annual limit on the amount of waste that could be received by the land per year.  In granting the declaration sought, Robin QC DCJ held at (24):

Even if things stood otherwise, the Council failed to employ the simple and obvious device of including in the development permit, if did issue a provision controlling and restricting the new use in that way.  True it is that Transpacific cannot present a convincing case that it came in expecting the benefit of a development permit devoid of annual tonnages caps.  That is what it got.  It would be mischievous for the Court to read into a development permit, running with the land, a restriction neither express nor necessarily incorporated by a reference to something else or implied.

  1. Finally, in any event, condition 3 requires that the private airstrip be construed in a manner that “substantially complies” with the information lodged in support of the subject application.
  1. The term “substantially complies” is similar to the term “generally in accordance with”, which is a commonly used phrase utilised in town planning.  It was judicially considered in Grace Brothers Pty Ltd v  Willoughby Municipal Council [1980] 44 LGRA 400, where the New South Wales Supreme Court had to determine whether changes to the configuration of a David Jones store from that approved by a development consent, such changes comprising building setbacks that differed from those required by the development consent, were nonetheless generally in accordance with that approval.  In finding that the changes to the design were “generally in accordance with” the consent, Wootten J held at 406;

The use of the words “generally in accordance with” are obviously intended to allow for some deviation from the drawings referred to in the interim development orders.  The reasons for allowing some latitude are obvious.  The significance of any particular deviation will depend upon the criteria by which it is judged.  In this case, we are concerned with town planning.  From that point of view, it seems to me that the alterations required by condition (ix) are not such that the consent is for a development not generally in accordance with the relevant plans.  

The alterations required to the outlines of the building are minor.  They have some impact on the internal space available but it is not, in my view, significant in the overall context of the development.  Only the northeastern corner of the development is affected.

  1. Grace Brothers has been applied numerous times in Queensland:
  1. (a)
    In Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200, Quirk DCJ considered whether a proposed plan of development was “generally in accordance with” the approved plan of development for the site.  The differences in plan included a reduction from 330 dwelling units to 268 dwelling units, including an increase from 12 to 24 townhouses in the highest and most prominent part of the site, and other alterations in road layout. After also applying Grace Brothers, the court confirmed;

“The need for some level of flexibility in a comparison of an approved plan with a finally settled design needs no explanation.  As his Honour emphasised, where there is any deviation, its importance in determining whether it makes a proposal that is not, ‘Generally in accordance with’, an approved plan, must be judged by the town planning consequences of that deviation.”

After noting the change would result in a visible increase in intensity of the development in the site’s most sensitive location from off-site, it was determined the change was not “in accordance with” the original approval;  and 

  1. (b)
    In Development Watch Inc v Maroochy SC and Ors [2007] QPELR 488, the court considered a development consent for a nine-hole golf course, and whether construction of a six-hole golf course was generally in accordance with that original development consent.  After finding that the proposed development was not “dramatically different” or “strikingly different” from the approved plan, and that the use of the land as a golf course would remain unchanged, the court found the variation to be nonetheless “generally in accordance with” the original approval.  
  1. In this context, no adverse “town planning consequences” have been identified by the applicant that would result from the use of the existing number of hangars as opposed to the original hangar.  This is particularly cogent in circumstances where there is no constraint on the hours of operation or the number of aircraft movements otherwise permitted on the land.  In the context of Development Watch Inc (supra), it cannot be said that the current stark field is “dramatically different” or “strikingly different” from the development otherwise described in the exhibit 3 site plan.  
  2. For the above reasons it is council’s submission that the construction of additional hangars after the introduction of the IPA is consistent with the consent permit.  
  1. [36]
    The outline by the first respondent also deals with issues in relation to the training school, as well as with matters that are suggested as being precluded because they constitute fly-ins or barbecues.  At paragraphs 66, 67 and 69 the following is said:  
  1. As explained by Ms Relf, “Actual flight training, in and of itself, still falls within taking off and landing on the – on the strip, which are things that are permitted under that definition”.  
  2. In this context, in AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, Chesterman JA strongly criticised the “best fit” test, which hitherto applied when activities could be said to fall within multiple defined uses in a scheme, explaining:

“If a proposed development satisfies two definitions, the rights and obligations which would follow from the conclusion that both definitions apply, are not to be abrogated because the judge has a preference for one result over another, or thinks that the local authority which drafted the planning scheme might have preferred the other. If two or more definitions are satisfied, then the legal consequence set out in the planning scheme for a proposal which meets those definitions will all apply and the developer may follow the path which suits its purpose best.”

  1. [37]
    And finally:
  1. Whilst it could be said that a flying training school may be said to fall within the scope of “educational establishment” under the 1988 scheme, in circumstances where the activities required to be undertaken to operate a flying training school fall within the activities authorised by a private airstrip a separate permit is not required.  
  1. [38]
    In relation to the use of the private airstrip for fly-ins or barbecues, the following is noted:  
  1. In the amended originating application the applicant contends that the use of the land for activities described as, “outdoor sport and recreation, tourist attraction and/or tourist park” are being undertaken unlawfully on the basis that the second respondent has no existing right to lawfully use the land for those activities.  
  2. In the applicant’s response to the second respondent’s request for further and better particulars, it explained its complaint with respect to those associated on-site activities is as follows:  

“(1) The applicant maintains that the second respondent uses the land for short-term accommodation and ‘outdoor entertainment’ because of the existence of the following facts and circumstances.  

  1. (a)
    Users of the airfield stay overnight at the airfield prior to early morning flights;  
  1. (b)
    Separate to the instances of short-term accommodation described in paragraph (a) above, the ‘American barn building’ is used by a person for accommodation purposes;  
  1. (c)
    The outdoor entertainment aspect of the second respondent’s use of the land is publicly advertised.  Those advertisements include the following activities:  
  1. (i)
    The sale of food and beverages.  
  1. (ii)
    Live entertainment. 
  1. (iii)
    The use of showers and toilet facilities;  and  
  1. (iv)
    Paid accommodation for caravan and camper sites.”  
  1. The evidence indicates that those activities are modest, in that:  
  1. (a)
    Of the fly-ins, of which there have been two, they result in the arrival of some 20 aircraft and some 60 people;  
  1. (b)
    The “live music” comprises a few pilots playing their own instruments on the site;  
  1. (c)
    The barbecues which are conducted on a weekend have only around five or six people attending;  and  
  1. (d)
    Caravans that have been bought on site have been used by pilots operating from the airfield.  
  1. Council contends that the activities described above are being undertaken lawfully, on the following bases:  
  1. (a)
    Such activities are authorised by the consent permit;  further or in the alternative, 
  1. (b)
    The undertaking of such activities are of so little moment that they do not amount to the “commencement of a new use”, such that they do not comprise a material change of use.  
  1. As to the first issue, such uses bear a fundamental nexus with the use of the land for private airstrip, such that they are authorised by it.  Indeed, the essence of the fly-in is the arrival and departure of aircraft and the use of on-site facilities or the passengers of those aircraft.  
  2. As to the second issue, such uses are of such an impermanent and de minimis nature that it could not be said to give rise to the commencement of a new use.  
  3. Of relevance in this context is the decision of Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1991] 1 Qd R 125, in which the Full Court was required to consider whether a food van selling products from vacant lots had commenced a “use” under council’s then Town Planning Scheme as a result of undertaking a “catering business” without proper town planning consent.  In finding that it had not, Connolly J, with whom Kelly SPJ and Dowsett J agreed, confirmed that:  

“In this context and in the wider context of the Town Planning Scheme as a whole there is much to be said for the contention of the appellant that clause 7(1) is concerned with uses which are of some substance and permanence and to which the land is in some sense committed, rather than some transitory act which occurs briefly on the land, albeit repeated with some degree of regularity.”  

  1. Kwiksnax was followed in Eames v Brisbane City Council and Anor [2010] QPELR 504, where Rackemann DCJ held at 507:  

“It may be noted that the extended definition (of ‘use’ under the IPA) does not refer to any and every activity which might in some way be associated with a use.  It refers only to an incidental ‘use’.  Not every activity on land, even one which is carried out repetitively, will constitute a use, incidental or otherwise (see Moore v Kwiksnax Mobile, Industrial and General Caterers Pty Ltd:  ex parte Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1991] 1 Queensland Reports 125).”  

  1. For the above reasons it is submitted that none of those uses fall outside the scope of the consent permit or, alternatively, they do not comprise a separate material change of use being the “start of a new use”, due to the modest and impermanent nature of the activities.  
  1. [39]
    Having noted the differing arguments put, I note, as is necessary, the evidence of the various witnesses that have been called.  Firstly, one of the applicants, Frances Anne O'Callaghan, gave evidence confirming matters contained in her two affidavits, though noting that since their swearing she and Mr Bucknell had ceased the operation of a horse-riding school, as well as a bed and breakfast.  
  1. [40]
    Ms O'Callaghan acknowledged in cross-examination that the current use of the airstrip is less than was the case in 2015 when Ms Adams carried out noise monitoring.  Ms O'Callaghan also acknowledged having made complaints to various authorities and investigations having been conducted by those authorities.  Ms O'Callaghan also was asked about the current location of her residence upon her property and she explained that the location of the residence, established after the land was purchased, was placed where it was to facilitate she and her husband’s proposed operation of the property as both a horse-riding school and a bed and breakfast.  
  1. [41]
    Ms O'Callaghan’s evidence was basically supportive of the position taken by she and her husband in respect of the application before the court.  
  1. [42]
    Also called on behalf of the applicants were an acoustic engineer, Ms Gillian Adams, to whom I have made reference, as well as a town planner, George Edward Milford.  Mr Milford’s evidence was contained within two affidavits filed by him, but particularly in his affidavit of the 16th of March 2018.  That affidavit includes the following:  
  1. I understand that for the purposes of this proceeding one of the matters that the court must consider is whether the land is used for the provision of paid accommodation, including caravan sites and camp sites.  
  2. While such matters are ultimately to be determined by this honourable court, it is my professional opinion that these uses and activities are not contemplated by the development application or the development approval.  
  3. There is a declaration on the development application that reads:  

The information given is true and correct in all particulars and that the plans and documents accompanying this application fully and truly describe the matter of which the application is made.  

As a town planner, this indicates to me that if the proposal (at the time the development application was lodged) was intended to involve: 

  1. The substantial number of hangar/shed structures that now exist on the property;  
  2. Accommodation facilities. 

This would have been detailed in the development application.  The inclusion of this material in the development application would have also enabled the council to consider the impacts of the proposed use at the proposed scale and intensity.  

  1. A private airfield is expressly identified as an example of an “air services” use in the Townsville City Plan 2014. 

….

  1. Part 5 of the Townsville City Council 2014 dealing with the levels of assessment of the material change of use in the rural zone, does not list air services.  This means that any air services uses are impact assessable development and would require an effective development permit to lawfully operate.  
  2. As a town planner it is my professional opinion that the use of the land for the purposes of paid accommodation to be outside of that which is an ancillary activity for the use of the land pursuant to the development approval.  
  3. I do not consider it a reasonable expectation that one hangar and single airstrip would generate the direct need for paid accommodation on the land.  Therefore it is my opinion as a town planner that the accommodation aspect of the current use of the land represents a new and different use of the land.  
  4. In my opinion the accommodation activity alleged to be taking place could be defined as either “short-term accommodation” or a “tourist park”. 

….

  1. Part 5 of the Townsville City Plan 2014 dealing with the levels of assessment for a material change of use in the rural zone does not list these uses.  This means that both short-term accommodation and tourist park uses are impact assessable development and would require an effective development permit to lawfully operate.  
  2. In my view the introduction of new activities and the intensification and change in scale of the development constitutes assessable development.  In my professional opinion the activities and uses on the land that are presently occurring are not authorised by the development approval previously obtained.  
  1. [43]
    Whilst not directly challenged in respect of much of what was said in that affidavit, I was not much assisted, noting as I did that Mr Milford’s evidence was broadly given and was accompanied by bold or bald assertions that the uses were outside what was permitted.  
  1. [44]
    The evidence of Ms Adams was detailed again in two affidavits filed by her.  Her evidence related specifically to the relief that was sought pursuant to the provisions of the Environmental Protection Act.  In particular, her affidavit of the 16th of March 2018 notes that in 2015 she supervised the production of a noise impact assessment with respect to the second respondent’s use of a private airstrip.  She concluded, following the production of that noise impact assessment, as follows:  
  1. That assessment concludes that:  
  1. The background creep criterion set out in the Environmental Protection (Noise) Policy 2008 is exceeded, on occasion significantly by the private airstrip noise;  
  1. Acoustic noise quality objectives criterion from Environmental Protection (Noise) Policy 2008 are exceeded by aircraft take-off noise;  
  1. Internal criteria, set out in Australian Standard AS 2021-2000 entitled ‘Acoustics – Aircraft Noise Intrusion – Building Siting and Construction’ is exceeded by aircraft events.  
  1. The majority of aircraft take-off events are likely to cause conversation interference in outdoor areas;  
  1. It is understood that flights often begin before 7 am during the night period and measured take-off events prior to 7 am exceeded the 45 dBA sleep disturbance limits set out by the World Health Organisation;  
  1. The majority of aircraft take-off events exceeded the comparison of like parameters criteria.  
  1. Having regard to the conclusions in paragraph 5, in my view, if someone proposed to build a residence in a location that experienced the level of aircraft noise measured at the applicant’s residence, they would be required to provide glazing and mechanical ventilation to support windows and doors to be closed to achieve acceptable internal noise levels.  
  2. In my opinion, the requirement to close all windows and doors to achieve an appropriate level of acoustic amenity within the applicant’s residence is not considered to be an appropriate restriction in a rural environment.  
  3. The greater the number of take-off events on the second respondent’s property, the greater the noise impacts are to adjoining land owners (including the applicant’s).  
  4. As outlined in the report exhibited to this affidavit, it is my professional opinion that:  
  1. The level of noise experienced at the applicant’s residence is unacceptable on occasion;  
  1. The level of noise experienced at the applicant’s residence is degrading their amenity and quality of life;  
  2. The level of noise experienced at the applicant’s residence exceeds applicable standards;  and 
  1. The level of noise experienced at the applicant’s residence from the respondent’s activities could be considered an offence under the Environmental Protection Act 1994.  
  1. [45]
    In cross-examination Ms Adams responded to a number of questions relating to the various issues that arise in respect of this matter.  Relevant there she said:  

“You’re an engineer by profession?   Yes, I am.

And as an engineer who specialises in acoustic issues, your focus is upon whether or not noises exceed certain criteria?   Yes.

And that is the sole basis upon which your evidence is before this court?  To deal with whether or not certain noises exceed criteria that you have sourced in your affidavits?   Yes.

I take it you’ve been involved in a number of proceedings in the Planning and Environment Court over the years for enforcement orders or for breaches of the Environmental Protection Act, or predecessors to the Planning Act, such as the Sustainable Planning Act or Integrated Planning Act?   Yes.

And I take it you’d agree that it’s unusual for those sorts of proceedings to be brought by someone other than the council or the department administering the Environmental Protection Act?   No, not really.  I’ve worked for a number of people from a number of different areas outside of the two you nominated.

Are you suggesting that it is common in the Planning Court for individuals to bring proceedings for enforcement orders, other than people being the council or the environment department?   I understand now.  I agree with you.

All right.  Thank you.  So it’s usually the council and the environment department bringing proceedings for enforcement orders or the like, rather than private individuals?   That is typically my experience, yes.

Yes.  And it’s even more unusual for a council to be running a positive case saying that there’s no breach of the planning laws, given that they’re a custodian of the planning legislation.  You’d agree with that?---That I don’t feel I can agree with or disagree with.  I don’t have a real comment for that one.”

And further:

We know that you took some noise monitoring in 2015.  Just so I can understand that, did you attend the site personally to undertake that noise monitoring?---The 2015 measurements were not undertaken by myself.

Okay?---They were undertaken by a senior engineer at – from my business at my direction.  At the time I understand the appellant was hoping to sort this out earlier than it actually getting to court, and she was trying to minimise the expense;  however, the agreement was that instead of myself going, I sent another senior engineer, who’s younger than myself, with – and with the appropriate qualifications, and I organised and basically told them what I wanted them to undertake whilst they were on site and spoke to them while they were on site, and also assisted in making sure that they analysed the data in the way that I wanted once they returned from site and once the noise logging equipment returned from site.

And have you ever attended the site?---I have.

You have?  When was that?---Probably two weeks ago.

Okay.  All right.  And was there much activity going on at the airfield when you attended the site?---Disappointingly, no.

In terms of the noise monitoring that was undertaken in 2015, we know that that during a period known as the Easter fly-in;  you agree with that?---That’s my understanding, yes.

And I take it you’d accept or agree that the level of activity that occurs during an Easter fly-in does not represent the usual level of activity that occurs at the airfield?---Based on my experience, it’s not [indistinct] when I did attend the site, no.

No, you’d see that more – the Easter fly-in is a worse case or maximum type of event, rather than the normal, day-to-day or average use of the airfield?---I – that’s not – I haven’t actually – I don’t have enough experience in that area but that is my understanding, that we undertook those measurements at that Easter because we knew we would get a good sample at that stage, due to the fact that it was an advertised event encouraging people to attend [indistinct] 

And just in terms of those Easter fly-ins, are you aware that there have only been two fly-ins during the time that the current owner has owned the airfield, since 2005?---No, that’s not something I’m aware of.

And further:

All right.  Now, you’re aware that the airfield was operating long before your clients move or relocated their house to the property?   Based on Mr Brown’s report, I understand that to be the case.

And did you not understand that when you wrote your own report?   No, I don’t believe I did.

All right.  Now, is it relevant to you as an acoustic expert that the airfield was operating prior to your clients moving their house to the property?   No, I don’t believe it is.

Are you aware of the concept of the order of occupancy?   I am.

What’s that?   I understand that the order of occupancy is based on what was developed or in operation prior to other operations occurring around it.  But I don’t believe that it provides an excuse to cause nuisance to those around you.

It is relevant then, isn’t it, that the airfield was in operation before your clients moved their house to the property?   I don’t believe so, when it comes to the environmental duty of care, no.

All right.  So you don’t think that the order of occupancy is a relevant concept for – just so I’m clear, you don’t believe the order of occupancy is a concept that’s relevant in determining whether or not there’s been an environmental  

nuisance?---No, I think a general environmental duty of care means that nobody has the right to cause adverse impact on others.

Would you accept that if someone moves to a noise source, it is incumbent upon them to mitigate their development to ensure an appropriate level of acoustic amenity?---No, I don’t agree with that.

All right.  So if, for example, someone moves into the nightclub district in Fortitude Valley and starts complaining about the nightclubs, that’s, in your opinion as an expert, perfectly appropriate and acceptable?---I believe that due care and the Planning Act does take into account all the reverse amenity issues associated with noise-sensitive developments encroaching upon operations.  I don’t think that’s a fair example, though, with relation to this particular appeal.

All right.  Can you just explain to us what reverse amenity is?---It is the potential of the encroachment of noise-sensitive development occurring up particular zone type areas, such as industrial areas, which therefore may encroach upon their operations.

And it does include, doesn’t it, the encroachment on existing uses?---It does require that consideration, yes.

And we know here, don’t we, that the airfield was in existing use before your clients moved their house to the subject land, although that wasn’t a matter you were aware of when you wrote your report?---I agree that that indeed may be the case but again, I don’t believe it gives industry or any other business or any other activity the opportunity to operate as they wish, without having regard for those around them.

No, that would be covered by an approval and things like that, wouldn’t it?---Typically, yes.

Now, we know that, from an acoustic perspective, the most sensitive period in terms of the time noise is made is during the night when people are trying to sleep;  you’d accept that?---Agreed.

Are you aware that the airfield does not have lights which would enable planes to land or take off in the dark?---I did not see any lights when I was there.

All right.  Well, do you accept – have you read Mr McKenzie’s affidavit?---Actually, I don’t believe I have.

All right.  Well, I probably don’t need to ask you anything further about what he says, other than I’d ask you to accept that the airfield doesn’t have lights which enable planes to take off or land in the dark.  Now, accepting that to be the case, that’s relevant to you as an acoustic expert because it means the risk of sleep disturbance is very low because there won’t be, for example, planes taking off at 3 am or 4 am, correct?---Well, the night-time period extends to 7 am.

I – Ms Adams, that’s not an answer to my question?---When there is - - - 

That’s not an answer to my question.  That’s not an answer to my question.  Do you accept that the risk of sleep disturbance is very low, given that the airfield does not have lights which enable planes to land or take off in the dark?---In the dark, yes.

And further:

All right.  In terms of your report or – which is exhibited to the affidavit, your first affidavit, you in section 3.2 set out a quote from the Townsville planning scheme, which starts with the words:

Noise is best managed through effective planning.

Do you recall that?---I’m just find – I’m just finding that right now.  What section was it, sorry, Mr Lyons?

Section 3.2 of your report?---I have it.

And just let me catch up now, Ms Adams.  That, again, is a notion of – or that encompasses the notion of reverse amenity that – those words I’ve read out:

Noise is best managed through effective planning.

?---I would think it should take into account reverse amenity issues, yes.

Yeah, and one of the things that town planning seeks to avoid is reverse amenity impacts;  you’d agree with that?---Not my area of expertise.

Well, as an acoustic engineer who gives evidence related to matters in the Town Planning Court, would you accept that one of the things that planning schemes seeks to do is separate uses to avoid amenity impacts?---Agreed, yes.

And would you accept that relevant to that is the existence of a use before someone moves in to premises?  In the current case, the airfield operating before the house moved there?  Before the house was relocated?---I think the object of the Planning Act is to take into account adjacent operations, yes.

All right.  In your report, on page 17 in section 3.4, you refer to the Australian Standard, which I’ll call AS2021.

And further:

I’m grateful.  Thank you, Ms Adams.  You say that you think Australian Standard AS2021 is a helpful planning tool for considering the acceptability of aircraft noise within a dwelling?---In – basically, as part of that report I tried to compile a number of criteria, or any criteria I could find that had any type of relevance and yes, I did use that one - - - 

Yes?--- - - - to suggest that it may be relevant with respect to this particular project.

Now, if the applicants in this proceeding had come and seen you before they relocated their dwelling, given that the airfield was already in existence, would you have advised them to ensure that their dwelling complied with this Australian Standard to ensure an appropriate level of acoustic amenity?---To be honest to the court, I would suggest that I’d want to understand the operation of the airfield activities better.  If it was just the occasional sort of aircraft versus the number of aircraft movements we measured on the occasion, I don’t think they need to – I don’t believe they’d probably need to build a solid-type structure.  It’s – a lot of this is basically designed for larger airport type areas, not a rural area like this.

Thank you for that very candid answer, Ms Adams.  An alternative thing you may have suggested to them would be to relocate their house further away from the airfield if there were any residual concerns?---That’d be something they could have taken into consideration when they located there, but I’m sure it’s dominated by more than just noise their selection of locations.

And further:

Ms Adams, you’d agree that private airstrips are not uncommon in rural areas?---Agreed.

And apart from the applicants’ house and their associated businesses, being, as I understand it, a horseriding business and a bed and breakfast, you didn’t identify any other adverse amenity impacts arising from the aerodrome?---No, I did not.

For instance, there are no adverse impacts upon users of the local road network or anything like that, is there?---It’s not really my area of expertise, Mr Wylie, but with – the only real issue that I came across was the potential impact of noise on the site.

Well, more – would it be more accurate to say upon the applicants’ house?---Yes.  Agreed.  That was our main location of the assessment.

And the underlining – sorry, the fundamental problem is just that the aircraft are taking off and landing in close proximity to the house.  Yes?---That’s very much the issue and the way that they take off and the take-off noise being within such close proximity of the house.

And given the orientation of the runway is what it is, apart from ceasing use of the aerodrome there’s not really much that could be done to ameliorate the impacts upon the house, is there?---Look, I think more could be done with respect to management of the airfield to avoid those more sensitive hours and try and avoid being blown over closer to the residents under prevailing wind conditions and you know, minimising the number of flights from the field.  Some of those basic management strategies would assist, I would suggest, in reducing the impact that can be experienced.

But that’s the frequency of use.  There’s nothing that could be really changed to the nature of the use, is there?---Well, indeed the airfield is there and indeed the residence is there.

So that’s a yes?---Yes.

Thank you.  The Australian Standard 2021 provides guidance when one is placing buildings or structures within the vicinity of aerodromes?---Yes.  I’m not sure if it says aerodromes or airports.

Do you have a copy with you, Ms Adams?---No, I don’t, I’m sorry, Mr Wylie.

I’m going to test your memory?---Okay.

Would you accept that the Standard provides guidance in two manners?  Firstly, it identifies whether or not the site is suitable at all and secondly, what additional treatment, if any, should be undertaken to the building. 

Would you accept in broad terms that that’s what the policy does?---Yes.

And you’d accept that the policy identifies locations as being acceptable, unacceptable or conditionally acceptable?---Yes.

And you’d accept that conditionally acceptable sites are those where some noise reduction measures may be necessary?---Yes.

You’d accept this site under the Standard to be a conditionally acceptable site?---Based on the design internal load levels, yes.

Thank you.  And you’d also accept in your report that generally when all the windows and doors are shut it meets the standards required by the Australian Standard?---I’m unsure of that, Mr Wylie, in that I don’t have measurements in front of me undertaken inside.  What I do know is that when I visited the site a couple of weeks ago I was quite surprised to see that it was such a heritage based type building and was actually only a single skin with the original plate glass windows.  So I’m not sure whether it would actually achieve adequate attenuation.

And further:

Yes.  Sorry, I won’t take that one any further.  I was recalling something else.  Your evidence is that no works have been undertaken on this building to mitigate external noise?---I don’t believe so.

And that is contrary to the requirements of AS2021 in circumstances where you’ve accepted that this site is a conditionally acceptable site?---Yes.

You’ve also in part 5.4 – sorry, this is where I was taking, Ms Adams.  You identified that you thought it was unreasonable to require a Queenslander style building to have to keep doors and windows closed.  Do you recall that part of your evidence?---Yes, I do.

Are you aware that within the Australian Standard note 1 provides – and this is – I’ll read it to you because you don’t have the benefit of having it in front of you, but for conditionally acceptable sites under part 1.1 it includes a note and the note is:

The recommendations for building construction are based on the assumption that external windows and doors are shut.  If external windows or doors are open for ventilation or other purposes, the noise attenuation values for the various components given in clause 3.3 will not be achieved.

If that were the case, you’d accept that the Standard itself accepts that if you’re building premises or moving premises to conditionally acceptable sites, you have to shut the doors and windows.  Would you accept that as a proposition?---Sorry, Mr Wylie, I’m just thinking in that overall for the true application of AS2021, yes, that would be the case for a – something located near an airport, yes.

  1. [46]
    What is clear from this evidence is that the production of the noise impact assessment was done during the Easter period 2015 and that that was an isolated occurrence at what might be considered the worst possible time.  It would also seem clear from the evidence given that there have only been two of these Easter fly-ins in 2014 and 2015, which means that there have been only two in the last 15 years or so and that therefore the assessment is not representative or at all indicative of the normal operating conditions which apply in relation to the property.  
  1. [47]
    Evidence was also called on behalf of the first and second respondents.  The first respondent, the Townsville City Council, called an Acting Senior Planning Officer, Yael Relf.  Ms Relf had sworn an affidavit which was filed on the 28th of August 2018.  She provides in that affidavit an analysis of the steps taken to obtain the planning approval in 1991 and the fact that additional development permits were sought and obtained.  In that affidavit she also details her observations during an inspection of the property on the 1st of May 2018.  
  1. [48]
    In her affidavit she notes the following at paragraphs 31 through 34:

31: Based on the first respondent’s records, only four of the 13 structures on the land have relevant approvals, including the residential house.  Based on my inspection of the premises, there appears to be nine structures on the land which may not have the relevant building approval – works approvals required, depending on when they were built.  Approvals granted by external certifiers may not have been provided to Council however.

32: Further, a number of buildings that appear in document 5 of exhibit “YR-01” to this affidavit do not appear to be used in conjunction with the private airstrip (if used at all).  Specifically buildings 1, 2, 3, 4, 11, 12 and 13 do not appear, in my opinion, to be used to support the private airstrip and were either dilapidated, oblique, unusable or for the rural residential use also on the land.

33: It is not unusual in my experience for rural and rural residential properties to have unapproved and abandoned structures similar to some of those seen on the land.

34: Buildings 5, 7, 8. 9 and 10 were clearly being used for the parking and/or maintenance of light aircraft or associated therewith the airstrip’s operation (such as the toilet block).

Ms Relf continues under the heading in her affidavit “Extent of the Use Approved by the Consent” to note as follows, paragraphs 38 through 48:

38: In my view the nature of a consent issued under the LGA 1936, for a proposal listed under column IV of the 1998 scheme for consent to the use of land (for a private airstrip in this case) and for the erection of buildings equally differs from today’s separation of “uses” and “works” in modern planning terms.  It is not now how planning schemes deal with different types of development.

39: The plan is the only document in the application that shows the location of buildings included in the proposal.  There is nothing in the application or other documents I have seen that indicate however, these are the only existing or proposed building at the time.  There were merely the buildings seeking approval in the application.

40: In my opinion the consent did not constrain the use of private airstrip to those buildings only.  It approved that use for the entirety of the land itself and approved the erection of those identified buildings.

41: I say this based on the fact that the private airstrip was clearly not only contained within approval built form, indeed the predominant planning component for the use, the airstrip, was not located within a building and the conditions referred to fencing, access and servicing the land generally for the use.

42: Further the conditions in the consent do not limit:

  1. (a)
    the number of aircraft permitted to use the airstrip;
  2. (b)
    the frequency of aircraft using the airstrip;
  3. (c)
    the type of aircraft permitted to use the airstrip;
  4. (d)
    the operating hours;  or
  5. (e)
    the parking or maintenance of aircraft only within buildings or hangers – meaning there is no limit on how many aircraft could be parked, maintained or operated from the land at any time.

43: It is my experience as a town planner that where a Council concerned about the extent of the use or its impacts and wishes to limit the use in some manner it will condition the approval accordingly.

44: Given the wording of the “private airstrip” definition, it would have been clear to an assessing planner that ancillary operations to the airstrip would be occurring on the land.  Had some restriction been intended to curtain the operation of the airstrip by the built form, it would have been a simple matter to word a restrictive condition on the proposal’s future operation.  No limiting conditions were imposed.

45: On my inspections, building 5, 8, 9 and 10 are being used in association with the private airstrip.  These are all being used for the parking, maintenance, servicing and handling of aircraft, and associated equipment, or for the comfort of pilots, owners and passengers.  They are being used in a manner consistent with the definition of a private airstrip as set out in the 1988 scheme.

46: For the above reasons, in my opinion, the existence of the additional buildings to those on the plan undertaking these activities (that are of themselves ancillary to the airstrip operating on the land) are not indications of a material increase of intensity of the use, beyond what is permitted under the consent.

47: While the consent did approve the erection of two buildings and the toilet block on the land, there was also nothing to prevent the construction of other buildings over time in the consent, nor requirements to remove any other building (if existing) on the land.

48: Based on Council’s records and my site inspection, it seems clear however that some buildings on the land do not hold the requisite approvals or certification.  The first respondent has corresponded with (and will likely further be in) the second co-respondent about those structures and I note in the affidavit of Mr Robert Bruce McKenzie dated 26 July 2018 (the McKenzie affidavit) an intent for some of the buildings to be removed.  

Finally, in respect of the issue as to whether there are new uses occurring on the property, Ms Relf notes the following:

49: Similarly, it is also my opinion that there has been no new use commenced on the land, other than the use permitted under the consent that would constitute assessable development under the Townsville City Plan.

52: I refer the paragraphs 11 to 13 specifically of the O'Callaghan affidavit, together with paragraphs 27-34 of the McKenzie affidavit which seem to be the two relevant events being referred to.

53: Under the Townsville City Plan 2014 (current scheme), “short-term accommodation” is defined as:

Premises used to provide short-term accommodation for tourists or travellers for a temporary period of time (typically not exceeding three consecutive months) and may be self-contained.

The use may include a manager’s residence and office and the provision of recreation facilities for the exclusive use of visitors.

Examples include:  motel, backpackers’ accommodation, cabins, serviced apartments, hotel, farm stay.

Examples exclude:  hostel, rooming accommodation, tourist park.

“Outdoor sport and recreation” is defined as:

Premises used for a recreation or sport activity that is carried on outside a building and requires areas of open space and may include ancillary works necessary for safety and sustainability.

The use may include ancillary food and drink outlet(s) and the provision of ancillary facilities or amenities conducted indoors such as changing rooms and storage facilities.

Examples include:  driving range, golf course, swimming pool, tennis courts, football ground, cricket oval.

Examples exclude:  major sport, recreation and entertainment facility, motorsport, park, community use.

54: It is alleged that the fly in events constituting the alleged commencement of a new use involve:

  1. (a)
    invitation to enthusiast ultralight pilots and their passengers from the North Queensland region to fly into the airstrip for a weekend, a select group of whom the second respondent is a member;
  2. (b)
    entertainment activities including a social barbeque where attendees prepare and cook for themselves, for those who “overnight”;
  1. (c)
    on one occasion, a live band from 7 pm – 10 pm; (d)  guests camping for one-three nights; (e)               the toilet and shower facilities being used.

55: I am not aware of evidence suggesting that the alleged short-term accommodation use is operating on the land for members of the general public.

56: The activities combined, or in isolation are not demonstrative of a new use of “outdoor entertainment” or “short-term accommodation” occurring.

57: In short leaving aside the manner of arrival of most attendees by aircraft, I view the activities being described as a private gathering of friends and special interest acquaintances.  Given the rural nature of the land, having people from such a gathering “stay over” is also to be expected and the activities representative of a party/barbecue or large family gathering in impact.

58: In my opinion, whether persons attending the land at these two events are providing some compensation to the host for food or equipment or not or whether a band has been hired to perform, does not change this view.

59: There is not sufficient evidence in my view to demonstrate that the activities described in the grounds of the originating application constitute the establishment of a new use or assessible development for which a development permit is required to be sought from the first respondent.

  1. [49]
    Ms Relf was also a subject of cross-examination in respect of her evidence and in particular in respect of the contents of her affidavits.  In that cross-examination, the following exchanges should be noted:  

“…  if we look at the document, we can see that there is a heading, Consent Use Private Airstrip, as shown on this plan?   Those words are written there.

Yes, okay.  Can – and that immediately tells us, does it not, that the approval is not for an unqualified or unlimited private airstrip, but is for one as shown on the plan.  Do you agree with that?   No, not entirely.

What part don’t you agree with?   I would refer to the conditions, as an assessing planner, to see what conditions permitted were also permitting in the use.  In addition to the definition of the use, which is for a private airstrip.

But the conditions are conditions attaching to that consent use, in other words the      ?   The conditions do set the metes and bounds of the permitted use.

Yes, and my point is that the permitted use that they’re setting the metes and bounds of are the consent use, as shown on this plan?   Yes, I do agree that the conditions do attach to that plan.

That’s [indistinct] a question.  The question is that the conditions set the metes and bounds of the use, and that the use is as shown on this plan.  In other words, you’ve got to read the conditions attaching to the use as no broader than what is shown on this plan?---I would say that the conditions definitely need to be read in conjunction with that plan that was approved with the application.

But no broader than it, because you can’t have conditions that are broader than what the consent use is for, can you?---You can’t have conditions, but the conditions need to be certain and reasonable.  So in this case one cannot be read without the other.

Okay.  Well, can we perhaps agree on this that however private airstrip is defined under the plan, the definition – sorry, the consent use that is approved here is limited by the words as shown on this plan?---I would say it’s not only limited to those words as shown on the plan.  I would say that the conditions also do set parameters for limits and permitted activities.

And further: 

MR MORZONE:   Yes, thank you, your Honour.  That application, can I ask you about this, first of all, under the 1988 scheme the relevant Table of Zones regulated uses, did they not?   Under the relevant planning scheme at the time it regulated uses, the erection of buildings or both.

Okay.  So far as it regulated the erection of buildings, there was still a requirement even then to obtain building approval under the Building Act 1975?   Yes, through council, and as required as part of the conditions.

So when you say it regulated buildings, it regulated the use of buildings?   I would say yes.

And to the extent that a use was comprised by the construction of a building, it also regulated that?  Because it referred to construction or erection of buildings?---I would say the consent would – definitely did, and in this case it did.

Yes.  Okay.  Now, when you refer to or when there’s reference to there being a division between land and buildings, there’s no division about the approval being for a use, is there?  It’s – that’s it’s approval.  It’s for a use, nothing more, nothing less, but it’s a use of land and a use of buildings?---Yes.  The former.  The latter.

Okay.  And the town planning scheme, in its Table of Zones, sets out the uses and the purpose of uses for which there had to be an approval to either use the land or to use a building?---I think it also set out that you could do both.

Or you could do both.  And so if we look at this application, the form of the application, when it says it’s an application for consent, is referring to an application for consent to use the land and buildings, correct?---Yes.

And it’s not a building permit application, which had to be made under the Building Act.  It’s an application for a use consent.  Do you agree with that?---I would agree.

And further:

Okay.  I’ll ask you – I will ask you to look at the provisions now.  And can

I ask you to look at provision 3.  We’ll go back to your affidavit, if you’re finding it more comfortable.  Go to your document 4, you’ll see a list of the conditions, and I want to ask you about condition 3.  So condition 3, as you can see, refers to the proposed air strip being constructed in accordance with the provisions of – relevantly – or, sorry, relevantly:

shelling the opinion of the council substantially comply with the proposal as detailed in the information lodged in support of the subject application

?   Yes, it does say that.

Okay.  Now, that is a case, is it not, where this approval by express reference is referencing some other document to the approval?  Do you agree with that?   It is referencing another document in the approval and in the condition.

Okay.  And the – you agree with me that the proposal, as detailed, and the information lodges in support of the application is only, so far as we’re aware, the application document, and the plan, exhibit 3?   That’s in the information.  To my knowledge, that was submitted with the application.  

Okay.  So to – so when that reference is made there to shall be constructed – do you see that – in accordance with provisions of all relevant Acts, regulations, bylaws,  

adopted policies of the council, that is a reference to other requirements for the construction of a building.  Do you agree with that?   Can you rephrase that question.

Yes.  That is – I’ll put this way.  That is a reference to complying with other requirements other than this approval, isn’t it?  It’s referring to bylaws, adopted policies, relevant Acts, regulations?   It does definitely refer to other bylaws, policies, Acts.   

And it’s a reference essentially to what we would now call building works or operational works being carried out in compliance with what back then were requirements outside the planning scheme regime or at least the zoning regime and outside the requirements of this approval.  Do you agree with that?   I would say that that condition there refers to the construction of those buildings shown on the plan and the private airstrip, although existing, to be constructed in accordance with that plan.  

And further:

Okay.  And that – can I suggest to you – is very clearly an indication that the original application and the original approval was, as the heading said it was, limited to as shown on the plan.  Do you agree with that?   I would say that part of the factors that – which shouldn’t be considered is that the existence of the additional hangars – while they may be there, if they were removed, it doesn’t – there are no conditions in the original consent that prohibited the hangaring of aircraft in the outdoors.  So, from a town planning point of view, I can see where the assessing officer – officer is coming from and where you are coming from.  That additional floor area can be indicative of not meeting the test of a permissible change, but in this particular circumstance, as a town planner, I would also consider that existence of the buildings doesn’t preclude that aircraft can be located and therefore, hangared outdoors essentially.

Am I to read that answer as saying – that what you’re saying is that you don’t regard the approval as not permitting additional hangars?   Can you rephrase that.

You – you do not regard the present approval as not permitting additional hangars?   I regard the present approval as permitting additional hangars.

Okay.  Now, what part – can you point to me any part of the approval that suggests that such a variation or such a broad examination of the approval allows for that?  What do you rely on?   Allows for additional hangars – I’d point to the conditions themselves that do not constrain the number of aircraft that can be parked or maintained on the faci – on the property at any one time, and also at the definition itself for a “private airstrip”, in that those aircraft can be hangared on the property at any – at any time without constraints in terms of where they’re parked.  So       

So you keep referring back to the definition.  And do I take it your evidence is is that the approval is for a private airstrip unconstrained and unlimited by any words in this approval?   No, it’s – it’s – it’s limited by the – the conditions in that approval.  But there are no conditions that limit – limit the hours of operation, for example, the aircraft movements, how many passengers and pilots can be on the       

I’m not… ? … premises.

…. talking about any of those things, Ms Relf.  I’m talking about hangars?   Sure.

The use of hangars – the use of more than one hangar, the use of 1130 square metres more of hangars?   So the use of those hangars could still occur even if they didn’t exist.  So an oper…

How could that happen?   Well, servicing of building – servicing of the aircrafts could still take place outdoors.  You could – you could still, technically, because there are no conditions limiting how many aircraft can be stored on the premises at  any one time.  You – if those hangars are being used to store aircraft, then technically, that could occur on the site based on the conditions, in my opinion.

Do you agree with me that a limitation on a hang – on there being only one hangar of a dimension 10 by 10 metres, will – if – will at least, impliedly, limit the number of aircraft that are stored in a hangar on site?  Do you agree with that?  You can only fit one or two hangar – two planes in that at the most?   Physically, it would constrain the number of aircraft that could be stored in the hangar, but not stored on the site.

So when you say stored on the site, do you mean stored outdoors?   It could be outdoors.

It could only be outdoors – couldn’t it – because there’s no other buildings approved?   Yes, or under tarpaulins or some such…      

And further: 

Yes.  And so it’s not sufficient, is it, at least prior to the 2017 Act for uses to be simply ancillary or incidental.  They have to also be necessarily associated with it?---They would definitely have to fit within that definition of use.

Okay.  And in any event, and insofar as it relates to the word “ancillary” in the Planning Act, could I suggest to you that your understanding of what is ancillary from a planner’s point of view is that it requires more than some inter-dependence, it requires a dominant and servant relationship, or, at the very least, some purpose serving the existence of another purpose?---Subordinate to the primary purpose.

Subordinate to.  And can I suggest to you that fly-ins for Easter events, or events like that, in no way satisfy that ancillary definition, because they are separate and distinct uses?---I would say that those uses – those activities described, and as described in the – in the application fall within the definition of a private airstrip, so – and particularly for accommodation – so in referring to the definition of a private airstrip, it allows for the accommodation of both to facilities, or the accommodation of both passengers and for goods carried by the airstrip.  So the carrying out of the fly-in entertainment or activities as described, in my opinion, fit within the definition of that private airstrip.

Well, can I ask you to go back to that definition, which is on page 18 of yours – no, sorry - - - 

HIS HONOUR:   Is it 17.

MR MORZONE:   Page 17.  And if we just look at that definition.  So it’s:

Privately owned premises for the landing and departure of aircraft.

Correct?  So far of no help to Easter fly-ins, except to the extent that they fly in, land and then depart?---Their arrival, if they fly in.

Okay.  The term includes:

Facilities provided at such premises for the housing, servicing and maintenance of aircraft.

It’s not that, is it?---It’s for the housing, servicing and maintenance, and for passengers or goods carried by the aircraft using the airstrip.

Facilities for passengers or goods carried by the aircraft using the airstrip?---Mmm.

Okay.  So it provides for facilities for passengers or goods carried by the aircraft using the airstrip.  Now, an event such as an Easter fly-in with a live band is not a facility for passengers carried by an aircraft using the airstrip, is it?  It’s an event.  It’s an outdoor event.  It’s like a typical outdoor sporting and recreational event or outdoor concert, which is usually required to obtain planning permission?---No, I don’t agree.

You disagree?---I think the fly-in entertainment is, in itself, an activity, that could be said is commensurate with any other rural type use that could occur on the site.  I think the fly-in activities, as they were described in the material provided, demonstrate they’re an activity, not just – not a standalone, separate use?---They were a significant activity.  They were an activity which was advertised.  It was advertised – if we look at one of the advertisements.  If you go to Mr McKenzie’s – Mr Robert McKenzie’s affidavit you’ll see that he attaches – I might be wrong.  You might have to go to Ms O'Callaghan’s affidavit?---I might need a copy of that, sorry.

Yes.  So again you look in the bundle and it’s the first affidavit of hers, which is – so it’s behind document 3 of the first bundle.

HIS HONOUR:   One that I opened, I’m not sure if it’s what you’re wanting to refer to, Mr Morzone, page 30, the Easter fly-in at Starke Airfield?

MR MORZONE:   Yeah.  Thank you, your Honour.  That is a good example.  So you’ll see there that that’s an advertisement?---Sorry, I’m just trying to locate - - - 

Yeah, so - - -?--- - - - where you’re referring to.  Is it under section - - - 

So if you go to - - -?--- - - - 12?

There should be a tab - - - 

HIS HONOUR:   Tab 3.

MR MORZONE:   - - - there, tab 3?---Tab 3.

HIS HONOUR:   In volume 1.

WITNESS:   And what number was it, Mr Morzone?

MR MORZONE:   Page 32?---Sure.  Yes.

That’s one such advertisement, and you’ll see there:  Fly in Friday or any time over the weekend.  Barbecue packs for sale.  Barbecue salads. 

There’s a location.  You see there facilities, camping, caravans.  Camping’s free, caravan’s $25 for the weekend.  And we also know from the evidence that there’s live entertainment on Saturday night and there is some evidence that, on occasions, there’s up to 100 people there or more.  So a large event.  That is a – that is a use that is not related to providing facilities for passengers, I suggest to you?---I’d say, though, that the activity itself as described couldn’t occur unless the private airstrip was operating, so the private airstrip as the primary use for the site.  This activity is still subordinate to and still fits within the definition of the private airstrip.

But it’s not serving it, isn’t it?  It has no purpose.  It does no purpose to serving the airport.  It’s an independent outdoor event?---But I would say that it couldn’t operate unless the private airstrip was operating.  So of its own – if the private airstrip use wasn’t approved on the site, then in this case, this type of activity may constitute a material change of use, a new use.  However, the private airstrip is approved and is the primary use for the site.  This activity cannot operate, cannot be conducted without the existence of that existing approval for the private airstrip.

And further:

Okay.  And there’s some – can I show you, for completeness, some other advertisements.  If you go back in that folder to page 21, you’ll see another advertisement for the 2015 Easter fly-in, and at the bottom of the page, you’ll see there that there’s a reference to a band playing on Saturday night, there’ll be a few fuel runs to town, and then accommodation is either under the stars or caravans can be brought into the camp at $5 per night, and that one’s slightly different to the other one, in the sense that it refers to, there, the live band entertainment, and can I suggest to you that that component also comprises a separate use, a separate and distinct use that’s not servient – subservient to the activity of an airstrip?---I do not agree.

You disagree.  Okay.  Do you agree with me, also, that the concept of ancillary involves matters of size and scale?  Thus – to expand upon that a little bit.  Thus, two developments, each of which is of a significant scale in their own right might not demonstrate the relevant relationship?---I’d say that ancillary, in terms of my interpretation of it in this case, is that the fly-in activities of themselves, the flying that occurs during the day, based on the evidence that I’ve seen, is the primary use that’s approved under the private airstrip.  I’d say that the activities that are occurring outside of the flying, so the – what’s described as – in these advertisements are ancillary and, therefore, I would also say that – in this case, that – in my interpretation, that they do not demonstrate that there has been a new use proposed on the site, or undertaken on the site. 

And further:

Okay.  So can I put to you that the frequency of those events occurring is a factor that goes to, again, the concept of whether or not two developments, each of which are significant in their own right, are truly in the relationship that we’ve been talking about?   It can be a factor.

And is your assessment or your opinion based on the events occurring only once a year?   Part of my assessment is based on the information that I’ve received that indicates that they occur once a year, particularly the Easter fly-in event.  However, frequency is, as I stated before, a factor that I would take into consideration in terms of determining whether a new use has been established.  In this case, I have not had  information that suggests that it is occurring more than once a year, based on the information that I’ve reviewed to date, but it can be a factor.

Well, could I ask you about the scenario where such events might occur once a month.  Would that change your opinion?---I’d say that, in this case, if they’re occurring in the same way that they have been occurring here, it’s very difficult for me to determine, based on that information alone, that a new use would be established.  My interpretation of the activities described so far in the information I’ve reviewed indicate that it is a social gathering, a social private gathering, not open to the public, of interested hobbyists that are partaking in the primary use of the premises which is the private airstrip.  So based on that information alone, it would be difficult for me to establish that a – a new use has been established on the premises.

But they plainly are open to the public.  They’re open to anyone who’s interested in attending these fly-ins.  That’s why they’re advertised?---It’s not my experience that an advertisement is – can be or is demonstrative – demonstrative of a use being open to the public.  In this case, based on the information that I have before me and that I’ve reviewed, these advertisements appear to be placed on a private group.  That looks to be the recreational flying for people of similar interests that are partaking in the primary use of the property which is the private airstrip.

But that doesn’t mean it’s not public.  I mean, obviously anyone with an interest in a particular recreation is going to be interested in that recreation, and those who don’t participate in it aren’t, but they – but it, necessarily, is an invite to anyone who wants to attend.  One only needs to look at it?---I’ve not seen information that suggests that participants that are – such as spectators or open to the public, people not participating in the private airstrip use, is undertaking on this premises.

And further:

Yes, and you would expect, wouldn’t you, that all uses that were to be carried on, on the site, would be included in a development application, including caravans and pitching of tents, if that was intended to be part of the use?---It’s not my interpretation in this particular circumstance that the activities described in the information provided constitute a use.

The activities of pitching a tent or parking a caravan?---It’s my inter - - - 

It’s plainly a use, isn’t it?---It’s my interpretation that those activities still fit within the definition for private airstrip which fall under - - - 

But if that was the case, there would not be any need for another definition?---The use described under the caravan park is a stand-alone use;  however, the circumstances, on the information that I’ve seen to date, do not indicate to me that a stand-alone use – that would fit under this definition or under the current definition for a tourist park or something along those lines is occurring on these premises.

That, with respect, avoids the question somewhat.  My question was that, at the time the application was made, if the use was intended to include caravan park, that should have been included, clearly, in the application and it wasn’t?---If it were a stand-alone use that were proposed to be established.

Whether it was a stand-alone use or not, the application should have included all uses proposed by the approval?---If it were a stand-alone use and not an activity occurring under the definition of what was proposed, which was for a private airstrip.

When you say “stand-alone use”, do you mean a use of caravan parks and tents only with no other use?---That is my interpretation of a caravan park.

And further:

Well, could I put to you that all of those, the pitching of tents, the carrying out of caravans – or bringing caravans to the site, parking for caravans attending at the site and for anyone attending to stay in buildings is entirely a separate use?---You could put that to me, but, unfortunately, I disagree with you.

You disagree with it.  Okay.  And you disagree with it even though the planning scheme at the time and the current planning scheme plainly include those activities in separate definitions;  is that your evidence?---They are in separate definitions, yes, but based on the information that I’ve reviewed, the activities undertaking on the premises do not, in my interpretation, fit within those definitions and constitute assessable development for which new uses are established on the premises.

And further:

Okay.  Can I start with this proposition.  Unless it is the building that was approved by the 1991 approval, that new shed is not part of the permitted use?---You could state that in your interpretation.

Would you agree with that?---I would say that – as mentioned yesterday, that the additional shed on the premises and the undertaking of flights to and from the facility could still occur on the premises with or without the shed being built.  So in terms of the town planning consequences, the existence of the shed, in and of itself, doesn’t necessarily constitute an intensity or an intensification of what was originally approved.

Additionally in re-examination, the following exchange occurred:

MR WYLIE:   Ms Relf, you recall that my learned friend Mr Morzone was asking you some questions about a caravan park use?---Yes.

Have you attended the site?---I have.

Yes, and were you able to walk around the site?---Yes.

Were there – was there any evidence of a caravan park use on site when you visited the site?---When I did visit the site, and you’ll see, in my affidavit, we took some photos, I did see one caravan on the site.  I did not look inside the caravan, but it did not look like it was currently in use.  It looked like it was just being stored on the premises.  In terms of a caravan park, I have attended at caravan parks that are lawfully established in the past.  It did not have what I would describe as the characteristics of a caravan park established there in the way that – I could not see, for example, what you would normally see at caravan parks:  the site numbers, services attached to those poles that are usually indicative of locations for caravan sites.  So in my opinion, it did not have what I would describe as the characteristics for a caravan park use.

Was it observable as a caravan park to you?---No.  In my opinion, it did not look like a caravan park, in my opinion.

  1. [50]
    I was particularly assisted by the evidence of Ms Relf.  It clearly outlined the position of the first respondent and why it was the view of the first respondent that further approvals were not necessary, in relation to matters or activities occurring upon the second respondent’s property.
  1. [51]
    The second respondent called a number of witnesses.  These included Robert Bruce McKenzie, the sole director of the second respondent company, Judith Louise Rowe, a neighbouring property owner, Anthony Russell Brown, an acoustic engineer, and Stephen Robert Motti, a town planner.  
  1. [52]
    Ms Rowe’s evidence related to the use of the private airstrip at 552 Jones Road, Woodstock, as well as to her own experience regarding the operation of the aircraft from the private airstrip.  It also related specifically to issues with regard to noise as generally experienced by neighbours in the vicinity of the subject property.  Ms Rowe noted that there was no disturbance from aircraft noise through flights that might pass over her property.  
  1. [53]
    More particularly, she noted that there were community benefits as she identified them in having a private airstrip within the community.  She also indicated that her own experience was that aircraft use had, in fact, diminished over recent years rather than having increased as seems to have been suggested by Ms O'Callaghan.  Ms Rowe’s evidence was informative but I must say was not of great assistance in respect of the ultimate determination of this particular matter.
  1. [54]
    Also called was Mr Brown.  His affidavit of the 1st of August 2018 annexed a copy of his report dated the 27th of July 2018.  In that report, Mr Brown details in part 2 the orders sought and in particular notes the basis upon which the invoking of various provisions of the Environmental Protection Act 1994 is considered.  He says in his report the following: 

2.1: The applicant seeks orders pursuant to section 505 of the EPA that the second respondent by itself, its servants or its agents cease carrying out activities on the land insofar as those activities constitute an offence pursuant to the EPA.

2.2: Paragraph 12 of the originating application provides that the noise generated by the second respondent’s use of the land amounts to the causing of material environmental harm as defined by section 16 of the EPA and that the second respondent has committed an offence under section 437 of the EPA.

2.3: The applicants’ response to the second respondent’s further and better particulars further provides that the applicants maintain that the noise  generated by the second respondent’s use of the land amounts to the causing of material environmental harm within the meaning of the Environmental Protection Act and the second respondent has committed an offence section 437 of the EPA because:-

  1. (a)
    the applicants’ residential windows and doors would need to be both closed and would require upgrades in order to achieve acceptable internal noise level (this would affect the applicants’ bed and breakfast enterprise);
  2. (b)
    the majority of aircraft take-off events cause interference in outdoor areas, affecting both the applicants’ horseriding and bed and breakfast enterprise as well as general conversations in outdoor areas;
  3. (c)
    at the relevant times, all aircraft take-off events impact upon the sleep of the applicants (in addition to impacting on their bed and breakfast enterprise);
  4. (d)
    all aircraft take-off events impact adversely on the applicants’ amenity;
  5. (e)
    the majority of aircraft take-off events cause interference to communications within the applicants’ workshops and machinery sheds, disrupting their farming enterprise. 

2.4: The applicants’ response to the second respondent’s further and better particulars further provides that the second respondents use of the land for air services, short-term accommodation and outdoor entertainment impacts on the applicants’ land insofar as the use causes:-

  1. (a)
    unacceptable noise impacts;  and
  2. (b)
    adverse impacts to amenity constituting unacceptable noise impacts.
  1. [55]
    Thereafter in his report, Mr Brown comments upon the definitions of

“environmental nuisance”, “material environmental harm” and “serious environmental harm” as provided in sections 15, 16 and 17 of the EPA.  He further explains environmental offences arising pursuant to sections 437 and 438 of the EPA and notes the statutory exemptions relating to environmental nuisance or environmental harm in his report at paragraphs 3.6 to 3.9.  He notes:

Exemptions 

3.6 Schedule 1 exclusions relating to environmental nuisance or environmental harm sections 17A, 440 and 440Q.

Part 1:  environmental nuisance excluded from sections 440 and 440Q (1) safety and transport noise environmental nuisance caused by any of the following types of noise:

  1. (a)
    noise from an audible traffic signal, at pedestrian lights under the Queensland Road Rules, that complies with AS1742.10-1990 “pedestrian control and protection”;  editor’s note – a copy of AS1742.10 may be inspected free of charge, at the Department’s office at level 3, 400 George Street, Brisbane
  1. (b)
    noise from a warning signal for a railway crossing … 
  1. (e)
    noise from aircraft movement;  … 3 Nuisance regulated by other laws environmental nuisance caused by any of the following –

  1. (f)
    development carried out under an approval under the Planning Act that authorises the environmental nuisance;  …

3.7 it is recognised that section 440 of the EPA deals with the offence of causing environmental nuisance.  The exemptions applicable under schedule 1 may not be available for material environmental harm.  For the reasons provided below however I do not consider that the noise generated by the second respondent’s use of the land amounts to the causing of material environmental harm.

Aircraft Noise

3.8 the question of the type of aircraft that the expression “noise from aircraft movement” applies to is primarily a legal matter.  In the event that this expression extends to the movement of aircraft from the land, it would be reasonably concluded that, by application of the exemption applying under schedule 1, the noise generated by the movement of aircraft from the land would not result in the offence of causing environmental nuisance.

3.9 for the reasons put forward in section 5.2 of this report, the noise generated by aircraft operating at the airstrip does not cause material environmental harm nor does it cause serious environmental harm.  It does not contravene any of the default noise standards at division 3.  In the event that it is considered to be a relevant act for any other reason, the noise is authorised under a development condition of a development approval, specifically development permit file number C5/91 issued on 15 May 1991 over lot 601 on E124123.

Mr Brown goes on to indicate that his understanding of the applicants’ concern is that the aircraft activity from the airfield interferes with their horseriding and bed and breakfast enterprises.  They, however, are no longer operating.  Mr Brown then comments upon the affidavit of Ms Adams, the acoustic engineer called for the applicant, and notes the exceedances claimed by Ms Adams are trivial and of negligible significance in terms of the legislative and professional practice expectations.  Mr Brown notes at paragraph 5.2.9 of his report that acoustic quality objectives are objectives, not noise level limits.  He concludes his commentary upon Ms Adams’ affidavit and her report by stating at paragraph 5.2.18 the following:

I cannot support Ms Adams’ contentions at paragraph 9.  Whether this degree of aircraft noise intrusion is viewed in the context of the pattern of aircraft movements that occurred prior to or after the construction of the dwelling on the applicants’ land, neither result could in any way be considered to be material environmental harm.

In his conclusions at paragraphs 6.1 through 6.10, he says the following:

6.1. From the results of the analysis presented above, the following conclusions can be drawn:  –

6.2. In my view, the noise generated by aircraft operating at the air strip does not cause material environmental harm, nor does it cause serious environmental harm.  It does not contravene any of the default noise standards at division 3 of the EPA.  In the event that it is considered to be a relevant after for any other reason, the noise is authorised under a development condition of the development approval, specifically, development permit file number C5-91, issued on 15 May 1991 over Lot 601 on E124123.  

6.3. In the event that the expression “noise from aircraft movement” applies to the movement of aircraft from the land, then by application of the exemption applying under schedule 1 of the EPA, the noise generated by the movement of aircraft from the land would not result in the offence of causing environmental nuisance.  

6.4. Any adverse effect on the amenity enjoyed by the applicants arising from the noise of aircraft operating at the airfield would have existed prior to the applicants purchasing their property and relocating the dwelling to their site.  Notwithstanding, if it were to be judged that action to attenuate aircraft noise intrusion into the residence is warranted, then prudently, such remedial action should have been undertaken by the applicants at the time of placement and construction of their dwelling. Further, any costs incurred would need to have been incurred by the applicants at that time.  

6.5. Any interference with the applicant’s horse-riding and bed and breakfast enterprises arising from the noise of aircraft operating at the airfield would have existed prior to the applicants seeking approvals and prior to the granting of such approvals for their horse-riding activity and bed and breakfast enterprise.  Notwithstanding, if it were to be judged that action is warranted to ameliorate the impact of aircraft noise on the applicant’s horse-riding and bed and breakfast enterprises, then prudently, such remedial actions should have been undertaken by the applicants when contemplating the horse-riding and bed and breakfast enterprises.  Further, any costs incurred in undertaking such remedial action would need to have been incurred by the Applicants at that time.  

6.6. Adopting Ms Adams contention regarding the inappropriateness of the requirement to close all windows and doors of the building, which was relocated onto the Applicants land and subsequently modified the Applicants bed and breakfast enterprise, in order to achieve an appropriate level of acoustic amenity within the Applicants residence, it can be reasonably concluded that because the aircrafts movements and associated noise generation activities existed prior to the relocation of the dwelling and upgrading of the bed and breakfast enterprise, (i) the choice of location for the dwelling was ill-founded and (ii) the choice to establish the bed and breakfast enterprise within the building was ill-considered.

6.7. Of the six noise level metrics identified by Ms Adams, and to which Ms Adams ascribes noise level exceedances, each can be placed into one of two groups:  (i) those based on maximum noise levels and (ii) those based on energy average noise levels.  Of these, four are of no utility.  The remaining two metrics, either (i) result in noise levels which are reasonable or (ii) results in objectives, not limits, against which the quantifies exceedances are trivial and of negligible significance.

6.8. Specifically, it is not reasonable to apply the noise level limit of clause 10, controlling background creep, of Environmental Protection (Noise) Policy 2008 to noise from aircraft movements.  The noise generated by light aircraft transiting the site, and regular public transport aircraft overflying the site, would be expected to generate well in excess of the limits set under clause 10.  Such a limit would be unnecessarily stringent.  It would be an unjustified impost on aviation operations.

6.9. Further, the exceedances of the EPP (Noise) – Acoustic Quality Objective (ie, not limits) are trivial and of negligible significance.

6.10. Whether the degree of aircraft noise intrusion into the applicants land is viewed in the context of the pattern of aircraft movements that occurred prior to, or after, the construction of the dwelling of that Applicants land, neither result could in any way be considered to be material environment harm.

[56] Further, in evidence-in-chief, Mr Brown noted the following matters:

Now the Planning and Environment Court?---Correct.

And I take it your experience has included, both in court matters and noncourt matters, dealing with aviation activities?---Yes, that’s correct.

You flew up from Brisbane this morning, so you weren’t here for the evidence-in-chief of Ms O'Callaghan yesterday, but during that evidencein-chief, we learnt that the bed and breakfast and horse riding activities that were referred to in her affidavit are no longer occurring on the land?---Yes, I understand that.

And we know from her evidence that they’re no longer occurring for reasons related to public liability insurance and food licensing requirements?---Yes, I understand that.

As an acoustic engineer, does the cessation of those two activities have any bearing or any relevance to you in considering the matters relevant to determination by this court?---Yes, they do.

And what’s that?---Well, specifically that the cessation of the horse riding activity, if there were to be disturbance generated by aircraft which were – such disturbance was sufficient to cause issues with horses, then, of course, the horses aren’t there, that issues disappears.  Similarly, if there were to be problems with noise generated to the bed and breakfast activity, without – without the bed and breakfast activity functioning, then that issue also disappears.

And I take it – you use the word “if” in those answers?---Yes.

I take it from your report that you have formed the view that there is no environmental harm or environmental nuisance being caused by the noise created by the aircraft and you maintain that view?---Yes, I do.

We also learnt yesterday during the evidence-in-chief of Ms O'Callaghan – or, actually, it was in cross-examination, that their home has both ducted air-conditioning and ceiling fans?---Yes, I understand.

Is that relevant to you as an acoustic engineer?---Yes, it is.

And why is that?---Again, if there were to be a problem with noise intrusion into the dwelling, then the presence of ducted air-conditioning would permit the premises to be operated with the windows and doors closed quite satisfactorily without causing any issues with ventilation, and in doing so, that would generate a – a significant reduction in the level of any noise intrusion.

I think there was also wall units mentioned by her, and I take it you’ve got the same view having regard to air-conditioning wall units?---Yes, that’s correct.

We also learnt yesterday that Ms Adams, the acoustic engineer called by the applicants, was not aware, when she wrote her first report, that the airfield existed prior to the home which the applicants relocated onto their land.  Is the fact that the airfield was in use prior to the home being relocated relevant to you as an acoustic engineer?---Yes, it is.

Why is that?---Because the use existed prior to that, which raises an issue of reverse amenity.

And could you just assist the court, explain what you mean by the expression “reverse amenity”?---Because there is an existing use, and because it’s a legal matter, not an acoustical matter, but because there is an existing use, then there is an obligation on the new use coming to the existing use to ameliorate the impact to the degree that it’s possible in the circumstances.

Additionally is cross-examination, the following should be noted:

That’s a convenient summary, is it not, of the criteria that Ms Adams has used and which you then make comments about, including the one we heard about a moment ago?---Yes, that’s correct.

Okay.  And I think you yourself acknowledged that or – I withdraw that.  Can I ask you this first of all.  They are not made up criteria, obviously.  They come from relevant sources?---Yes, that’s correct.

Okay.  It’s fair to summarise your opinion as being that you don’t agree with those being necessarily applicable or directly applicable?---I have some doubts about the utility of many of those metrics, yes.

And further:

Now, can I ask you – I know you have said to me a moment ago that you don’t really believe any of the criteria are particularly relevant – well, I shouldn’t say relevant, but particularly apply?---Well, they’re relevant, inasmuch as they do provide some bounds to make some judgments.  It’s a matter of whether - - - 

Okay?--- - - - judgments that you derive from that result in nuisance or material harm.

You don’t – there’s no quibble, I take it with you – from you that the three maximum criteria, if I can call them that, the LS max criteria and Ms Adams’ assessment of the flights and how many exceed that, you don’t dispute that, do you?---No, I take Ms Adams’ data on – on its – on face value and accept it for what it is.

Okay.  Your main criticism of the use of that and, indeed, perhaps also the other criteria, is that the airport was there first and the house came second.  Is that a fair summary?---Well, certainly, that’s prime – prime – prime importance that if there were to have been an issue beforehand, then that – that – sorry, if there were to be an issue now, that issue existed prior to the relocation of the – the – the residence on that property.

And further:

And so forth.  And I don’t take it you make any criticism about the location of the house site, but your criticism is that it should have been dealt with, the noise, more effectively.  Is that a fair statement?---Well, it’s simply a matter of making prudent decisions at the time and weighing up the pros and cons of a decision to locate a house in a particular position on the property.

And further:

Yes.  If the provisions of the Environmental Protection Act and these heightening standards or expectations have the outcome that – or they can have – they have the outcome, I should say, that these activities, which may have been going on in the same way for many, many years, but with these expectations and these controls heightening, they may need to be carried out differently in order to meet the relevant standards?---Well, if there’s a lawful use operating under development approval one would think there’d need to be a trigger for making a change, but, again, that’s a legal question, rather than an acoustical question.

But I’m not talking about a change.  What I’m talking about if you’ve got an option – if you were carrying out an activity which is noise producing - - -?---Yes.

- - - and you’ve done it for a long time and you’ve done it in a certain way for a long time, that doesn’t mean that today, in 2019, that you necessarily are able to continue to carry it out in the same way given the changed and heightened standards which have been introduced by the matters we’ve talked about?---There’s another dynamic to this there and that’s the – the – if you put it in its broadest terms, the encroachment by the new use on the existing use which creates a problem which, hitherto, wasn’t there previously.

I accept what you’re saying, but that doesn’t relieve the operator of someone who is – of the responsibility of complying with modern standards?---I’m not sure that I agree.  I can see the point you’re – you’re driving at.  If there were to be an agreement reached between neighbours which sits quite apart from the regulatory process, then that’s an entirely different matter.  If there’s an existing regulatory process and there is no breaching of the undertakings – undertakings given within the conditions that attach to the development approval, that’s a different matter again.

And in re-examination, he noted:

MR LYONS:   Just very briefly, Mr Brown.  I take it from the evidence you’ve given today orally, you maintain the view that there’s no environmental harm or environmental nuisance being caused by the airfield?   That’s correct.

And one of the answers you gave to Mr Morzone, you said you had some doubts about the utility of many of the metrics used by Ms Adams?   Yes.

By “metrics”, were you referring to the limits or noise criteria that she had put in her statement attached to the affidavit?   Yes, I was.

And can you just elaborate on the – what you meant by you had some doubts about the utility of using some of those metrics?   It’s covered in my affidavit, but, perhaps, I can take you to the relevant section.

I think it’s on page 12?   Yes.

And over on page 13?   So if we start with paragraph 5.2.3 at the bottom of page 12, I state that: 

Of the six noise level metrics, the following four metrics are based on the measurement of either individual maximum sound levels, ie, LS max values, the arithmetic average of the maximum sound levels, or in the case of the comparison of like parameter metric, the L1 15-minute noise level metric as well. 

And then I list those four as being AS 021, the DTRS and WHO guideline for conversation interference, the WHO guideline for sleep disturbance and the comparison of like parameters, and then I state at paragraph 5.2.4:

Because it can be concluded that the maximum sound pressure level of the aircraft noise intrusion, measured as the range of maximum sound pressure levels or as the average of the set of maximum sound pressure levels has not altered, and that’s altered in the pre to post situation with respect to the relocation and first occupancy of the dwelling on the O'Callaghan property.  There is no utility in using metrics for determining limits for acceptable levels of noise intrusion which address only the sound pressure level of the aircraft noise intrusion.  Any exceedance of the noise level targets set by Ms Adams against any of these metrics would have prevailed prior to and at the time of relocation of the applicants’ dwelling onto the land.

I then go on to discuss the L1 15-minute parameter which, in essence, is a surrogate for the maximum sound pressure level when you unpick the mathematics behind it:

That leaves two remaining metrics, the EPP noise background creep – 

and I’m reading here from paragraph 5.2.6 – 

and the EPP noise acoustic quality objectives as those based on the energy average noise levels.

And then I examine each of those in turn, and my conclusion that I reach is at the bottom of page 14 over the page, and at 5.2.17:

In both cases, the exceedance of the objectives –

This is the acoustic quality objectives, not limits –

are trivial and of negligible significance.

And then following at 5.2.18:

I cannot support Ms Adams’ contentions at paragraph 9 whether this degree of aircraft noise intrusion is viewed in the context of the pattern of aircraft movements that occurred prior to or after the construction of the dwelling on the applicants’ land.  Neither result could, in any way, be considered to be material environmental harm.

And I think you said elsewhere in this report that you don’t consider it to be environmental nuisance under the Environmental Protection Act either?---No, I don’t.

  1. [57]
    As I indicated, the sole director of the second respondent, Robert Bruce McKenzie, was also called.  Mr McKenzie has filed a number of affidavits in these proceedings, but his affidavit filed 31 July 2018 is the most relevant here.  It provides details of his purchase of the property, details of the buildings on the property, and the steps taken by him in relation to the approval of buildings in place at the time of purchase, as well as answering many of the matters in the affidavits of Ms O'Callaghan.
  1. [58]
    Mr McKenzie was cross-examined by counsel for the Applicants in relation to the property, as well as regarding certain structures on the property and their age.  He was also questioned about the various activities on the property, including the operation of a flight school and fly-in/ fly-out activities.  His answers were frank and honest, but not necessarily relevant to the determination, in respect of this application.  For clarification as to uses, however, the following should be noted;  

MR LYONS:   Mr McKenzie, you were asked a number of questions about the use of the airfield for a flight training school, and we understand from your evidence that the building identified as number 4, which has since been demolished, was used previously?---Correct.

I take it the airstrip itself would also be used for the purposes of a flight school?---Of flight training, yes.

Flight training?---Yep.

And that would be for the purposes of taking on and off?---Yes.

I take it that people can’t learn how to fly without taking on or off?---Correct.  Correct.  It’s part of the airfield, yes.

In terms of fly-ins, just so I’m clear, how many times would there be a flyin from other airfields to your airfield per year other than the Easter flyin?---There will be small groups of one or two planes or something like that throughout the year, now and again, once a month or whatever.  Depends on who’s at the airstrip, if they want to fly in to meet someone to – to chat.

You gave some evidence and some answers to my learned friend Mr Morzone where you made some comparisons between what occurs at the airfield and a car club, and you also talked about bikies.  Just as a matter of clarification, I take it when you were using the expression “bikie”, you were referring to recreational motorcycle enthusiasts, rather than outlaw motorcycle gangs?---Yes.  Yes.  Most definitely, yes.

Just in the District Court and the Supreme Court, the word “bikie” may have connotations different to the one that you intended when you gave those answers?---True.  Yes.  Yes.

In terms of camping and caravan use on the land, just so we’re clear, is it your evidence that anyone who camps or caravans – or uses caravans on the land has to have some nexus or relationship with the use of the airstrip?  They’re not tourists just coming to - - -?---No.

- - - have a weekend away?---No.  We’ve never advertised it for tourism or anything like that.  It’s always been people that have been associated to the airstrip.

You were asked a number of questions about some scenarios in which you were asked whether you would undertake not to do certain things.  I understand from your evidence that when you were giving those answers, it was on the basis of two primary reasons.  Firstly, some of the buildings that you were referring to are in a state of disrepair and you want to tear them down?---Correct, yes.

And, secondly, you’ll do things if the council requires you to do things, for example, get certain approvals or the like?---Yes, if the council says, “You’ve got to take that down,” we will take it down.

  1. [59]
    Finally, the second respondent called a town planner, Stephen Robert Motti.  I have already made reference to Mr Motti’s affidavit and reports, but note that he was the subject of cross-examination in respect of his conclusions and opinions.  In evidence-in-chief, he noted the following; 

Ultimately, it’s obviously a matter for his Honour as to the area of land that is the subject of this approval, but assuming it relates only to 41,212 square metres, is it relevant to you as a town planner that the area referenced is an approximation?---It is, and not unusual, in my experience, for consent applications to provide, conceptually, location criteria.

And when you say “conceptually”, what do you mean?---Typically provides some direction in terms of location, site situation, access.  Conditions of approval normally look to seek to refine and direct delivery through subservient application processes, whether it be building work or works approvals.

And it’s not uncommon, in your experience, is there, to be a degree of variation between a conceptual approval and then detailed design?---That’s correct.  In my experience, most approvals contemplate that through the construction of conditions.

And in cross examination, the following matters were dealt with in evidence:

Okay.  Now, I want to ask you about the development permit which we see as attachment C to your affidavit.  It’s at page 19.  That permit describes the consent use, on about the sixth line down, as: 

Private airstrip – as shown on plan number 3013P1.

And that is a reference to exhibit 3?   That’s correct.

Okay.  So this – the consent use itself, in this particular case, is constrained,

I suggest to you, or immediately qualified by being as shown on this plan--That reference, in my view, is a descriptor.  It, in itself, is not the control device.  The permit itself is defined by the use itself in terms of the definition of private airstrip.  The concept plan is a descriptor, and the conditions of approval which direct outcomes relevant to the land.

The permit itself describes the use?   Of private airstrip, correct.

As shown on the plan?   And qualified further, then, through conditions in terms of delivery.

Yes, but the use itself is very much described in a qualified and limited way.  It’s not any private airstrip.  It’s one as shown on the plan?   In the context of definition and conditions of approval.

Of course?   So the conditions of approval do contemplate variation.

You might look to the condition to see what is meant by a private airstrip, but in terms of it being – or in terms of its scale, it is the scale as shown on this plan?   In  terms of situation, it – it – it is shown per the plan that there’s a relationship to the land area.  In terms of the activity, it is defined, in my view, by reference to the definition as prescribed by the scheme, but also within the terms developed by the conditions themselves.

Just forget the conditions for a moment, okay, completely?   Mmm. 

We’re talking about what is the use that’s being approved?   Yes.

And the use that’s being approved is the use which the planning scheme describes as a private airfield or airstrip, but that the consent – the consent use that’s been given is one which is constrained by the scale shown on this plan, I suggest to you?   I don’t accept that.

You disagree with that.  Okay.  And that is not untypically, certainly, for approvals that existed pre-IPA?   Could you rephrase the question, sorry?

That was not untypical for plans – permits, I should say, that existed pre-

IPA?   Nor any approval.  My experience has always been approvals typically do provide connection to plans that provide description of how the site may be used, in conjunction with conditions to direct delivery.

Most often, in at least current approvals, the plans are referred to in the conditions.  Do you agree with that?   That’s correct.

In this particular case, the plan is referred to in the descriptor of the use itself?   That’s – that’s correct.

And that, I suggest, is a difference that is very important in this case because it constrained the use that was being approved to a scale as shown on that plan?   I don’t accept that.  Again, by reference to the conditions, the conditions themselves do contemplate variation.  In fact, condition 3 recognises that there’s an ability for substantial compliance with that plan in council’s opinion.

And further:

Okay.  And that detail refers to one hangar.  And my suggestion to you is that that condition is making it clear that this permit is not unconstrained;  or unqualified;  or variable, like you like to have said in your report.  It is very much limited by the information in this proposal and, in particular, one building?---I – I don’t agree, in terms of the one building.  I don’t recall identifying the application as being – land use – being a variable approval.  My report seems to identify that the development is fettered and there are conditions that do look to constrain.  And they are with respect to requirements and obligations of response to the Act and, also, requirements in response to CASA requirements.  With respect to the application, it identifies a land use of private airstrip over an area of 4.1 hectares.  That’s important to me, in terms of understanding the context of the development and its utility over the site. 

And further:

Now, can I – well, just before I leave that, for completeness, I’ll make sure I make this clear to you.  Can I suggest to you that the consent use, as it was described and as constrained by condition 3, does not permit use of any of the other buildings that we see on the site for the purposes of private airstrip?---I don’t accept that. 

Okay.  Well, I gathered that.  So if I could ask you, then, to look at the definition.  And you see, there, that the definition refers to, obviously, the landing and taking off of planes?---Yes. 

And then it refers to facilities provided at such premises.  And, again, we see it’s divided by the use of the word “four”.  Do you see that?---I’m sorry.  Yeah. 

It says “four”?---Yes. 

Divided into two, first for the housing, servicing and maintenance of air craft.  Do you see that?---Yes. 

And, secondly, for passengers or goods carried by aircraft using the airstrip?---Yes. 

So would you agree with me that the housing, servicing and maintenance – well, the words “the housing, servicing and maintenance” – does not qualify for passengers, does it?  It’s not for housing passengers?---I don’t agree with that.  The definition identifies provision of facilities.  I – I – I don’t agree. 

But it’s a matter of plain English.  There’s two flaws there.  You don’t read what comes after the first four as qualifying the second four, do you?---I think you – you read it as a whole.  So, to me, the term includes facilities that are provided for, yes, the aircraft, themselves, and then provided for passengers and goods used by the aircraft.  

But the terminology when we come to look at passengers is:

Facilities provided for passengers or goods.

?---Yes.

Okay.  I think that’s what I was trying to get to you.  So my first proposition to you is that a flight school or training flights is not encompassed within that definition?---I don’t accept that.

And further:

Okay.  Now, in terms of accommodation buildings, using actual buildings, again, can I suggest to you that the approval that was granted, particularly since there was no building shown on this plan, did not include using 4000 – or the four hectares for an accommodation building.  You agree with that?---I don’t agree with that.  Accommodation building in its own right, if it was to be an independent activity external to the private airstrip, I see the accommodation element being connected to the use of the airstrip.  And certainly in the way it’s been operating, to my understanding, it’s pilots and passengers who are accommodated on-site.

  1. [60]
    There were a considerable number of exchanges of this character between Mr Motti and Mr Morzone counsel for the applicants, all of which came down, ultimately, to Mr Morzone attempting to have Mr Motti accept that certain of the activities said to be occurring on the property were outside the scope of what was permitted.  It was followed, invariably, by Mr Motti disagreeing with those proposals, and outlining why that was the case.
  1. [61]
    Whilst the determination is one for the Court, I would certainly acknowledge the assistance I gained from Mr Motti’s report and the evidence that fell.
  1. [62]
    Ultimately, however, I am required to determine whether development offences under the Sustainable Planning Act have been committed in respect of the use of the land at Jones Road, Woodstock.  Declarations and enforcement orders are sought, pursuant to orders 1 through 6 of the amended application.  Additionally, there are the orders sought pursuant to section 505 of the EPA relating to offences arising, it is said, from activities carried out on the property.
  1. [63]
    As far as the Sustainable Planning Act is concerned, the determination comes down to an assessment of whether the second respondent has carried out assessable development without an effective permit, or whether the consent of 1991 authorises what has occurred on the land as being for purposes related to the “private airstrip”.
  1. [64]
    The evidence of the three town planners called in this matter is of considerable assistance in that regard, though I note the different conclusions reached by Ms Relf and Mr Motti, as opposed to that of Mr Milford.
  1. [65]
    The 1991 consent permit authorised the use of the land at Jones Road, Woodstock in its entirety, not just the 4.1 hectares for a “private airstrip”.  This is relevantly defined as:

“Privately owned premises for the landing and departure of aircraft.”

  1. [66]
    The term “private airstrip” includes facilities provided at the premises for the housing, servicing, and maintenance of aircraft, and for passengers or goods carried by aircraft using the airstrip.  This, in my assessment, can and should be considered broadly, and as such authorises the use of the land for the airstrip and hangers, as well as other structures associated with such on-site activities.  
  1. [67]
    This is even more obviously the case when it is noted that the consent permit did not place any constraints on the hours of operation, though obviously the airstrip, not having lights,  is only able to operate from dawn to dusk, as well there being no constraints on the type of aircraft used, or upon movement and numbers. Accordingly, I am satisfied that the use currently made of the land is for aircraft related activities, and is entirely consistent with the rights granted by the 1991 consent permit.  
  1. [68]
    There was no suggestion, in the consent permit, of any restrictions related to the scale of use, or intensity of use, of the private airstrip and to seek to now impose such restrictions flies in the face of proper practice.  In that regard, I am particularly mindful of the obvious consideration of the Thuringowa council, as it then was, in relation to the possible requirement for additional payments to be made by the owners of the land in relation to increased road usage.  With that in mind, it could not be other than considered that the granting of the permit was based upon an expectation, at least, that there was a possibility of an increase in use, and therefore the possibility of greater road traffic associated with the use of the private airstrip.
  1. [69]
    The conditions relevant to the consent permit and, in particular, condition 3 require associated buildings and structures to be undertaken substantially in accordance with the material that accompanied the consent application.  Again, I am satisfied that all works that have followed the granting of that permit have related appropriately to the operation of the private airstrip.  Condition 3 does not preclude other building upon the land but rather required that it be substantially in accordance with what was required to operate the private airstrip.  The use of the land by the second respondent for aircraft related purposes is undertaken lawfully and is consistent with the use permitted and authorised by the consent permit of 1991.
  1. [70]
    Similarly, the consent permit authorises the provision of various facilities for passengers and goods, and the activities complained of by the applicants, such as the provision of short-term accommodation and outdoor entertainment, is no more than what is contemplated and authorised.  It is limited in the extreme, and the provision of such limited facilities is clearly contemplated by the consent permit.
  1. [71]
    Accordingly, the orders 1 through 6 sought within the amended originating application are dismissed.
  1. [72]
    Insofar as the relief sought pursuant to order 7 of the amended originating application is concerned, the relief is of an injunctive character, and as such, the Court must be satisfied that an offence has been committed.  Here, the applicants rely upon section 437 of the Environmental Protection Act to the effect that the second respondent has through the use of the land caused “serious environmental harm” by way of noise.
  1. [73]
    The applicant’s amended originating application refers in paragraph 12 of the grounds relied on to, “material environmental harm”, which is described in section 16 of the Environmental Protection Act as, more generally, “environmental harm”.  Section 14(1) of the Environmental Protection Act describes “material environmental harm” as “comprising environmental harm” which is further prescribed as comprising “any adverse effect on an environmental value”.  That term is further prescribed by section 9(a) of the Environmental Protection Act as comprising “a  quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety”.
  1. [74]
    As is argued by the first and second respondents, there is no evidence that the noise associated with the operation of a private airstrip adversely impacts upon ecological health or safety.  The issue, therefore, is whether there is an effect upon public amenity.  The first respondent argues that the noise generated from a lawful and existing airstrip could not be found to comprise an adverse effect on public amenity.  In a similar vein, the second respondent, relying upon the decision of District Court Judge Wilson SC in Crowther v State of Queensland [2009] QPELR 216, which noted the decision of McGill SC DCJ in Fletcher v May [2001] QDC 81, noted the fact that, “environment is defined in fairly broad terms” and went on to specifically comment that:

“The key consideration here is the word “unreasonable” as with public nuisance at common law.”

  1. [75]
    Subsequently, Judge McGill SC noted that:

”What is unreasonable is obviously a matter which can only be decided by reference to a particular case involving all of the factors relevant in the circumstances.”

  1. [76]
    There, his Honour concluded that:

“A feedlot located in a rural area where there were few people living close enough ever to notice the odour and where the odour would be no more than an occasional inconvenience could probably produce large quantities of odour without constituting an environmental nuisance.”

  1. [77]
    Similar considerations arise here, and it falls clearly upon the applicants to demonstrate the impacts upon them of limited and irregular use of the private airstrip.  The evidence of Mr Brown in that regard is compelling, and, as such, I am not satisfied that the applicants have made out their case that noise from the operation of the airstrip constitutes environmental harm.
  1. [78]
    Accordingly, the relief sought in order 7 of the amended originating application is also dismissed, and the orders of the Court will be that the application be dismissed and that each party have liberty within 28 days of the delivery of this judgment to provide written submissions as to costs.  
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Editorial Notes

  • Published Case Name:

    Peter Adrian Wentworth Bucknell v Townsville City Council and Ace Aviation & Engineering Pty Ltd

  • Shortened Case Name:

    Bucknell v Townsville City Council

  • MNC:

    [2019] QDC 280

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    16 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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