Application for interim enforcement orders –
restraining use of private airstrip – balance of
convenience – undertakings provided by landowner
– ongoing amenity impacts – availability of
other airstrip – inconvenience to landowner – s
603 Sustainable Planning Act 2009
Facts: This was an application for interim
enforcement orders restraining the use of a private airstrip,
pending determination of the primary proceedings regarding the
lawfulness of the use.
The Respondents owned rural zoned land on which there was an
existing airstrip which was less than ideal. They purchased an
adjoining lot to build a better airstrip, aircraft hangar and
fuelling facilities. The Applicant Council originally advised the
Respondents that the private airstrip and hangar use was exempt,
and also issued a development permit for an aviation fuel tank.
However the Council resiled from that position, and commenced the
primary proceedings to restrain the use.
The Council pointed to the ongoing amenity impacts as a result
of the continued use of the airstrip, and called evidence from a
number of affected neighbours. It also focussed on the availability
of the old airstrip on the original parcel of land for the
Respondents to use in order to overcome any inconvenience to them
if an interim order was made.
The Respondents also called evidence from neighbours, but
attesting to the fact that their amenity was not unduly impacted.
As to the inconvenience of the Respondents, they would have to
transport fuel from the facilities adjacent to the new landing
strip to the old one, which would involve both cost and
In order to avoid an interim order being made, the Respondents
were prepared to offer undertakings to the Court:
limiting the airstrip use only to Mr Toole himself, with no
flights being made for any aircraft for any other purpose;
that there be not more than three flights (being a total of six
movements) in any week; and
that the route taken for take-offs and landings would not
involve flying over adjoining neighbour's properties at heights
below 1500 feet.
Decision: The Court held, in dismissing the
There was a sufficiently strong prima facie case to consider
the granting of the injunctive relief. However, the granting of
relief is discretionary and all relevant matters need to be borne
in undertaking the balance of convenience.
In relation to amenity, people's perception of whether
their amenity is affected or not will vary according to
people's sensitivities and upon their tolerance of the use
This was not a case where the material demonstrated an
unchallenged impact of a severe kind. Only a few neighbours had
complaints, without being able to measure the severity of the
impact in any precise way.
The inconvenience to the Respondents was not dire, but it was a
level that should be weighed in the balance.
The undertakings would see a reduction in the level of activity
to one which was at quite a low level of intensity. With the
undertakings in place, the opportunity for any substantial further
impacts upon amenity were constrained. This was to be considered
against other factors, including that the activity had been carried
on for 12 months, and that the primary proceeding could be set down
for final hearing within a matter of weeks.
The balance of convenience fell on the side of not granting the
interim enforcement orders sought.
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