(Rackemann DCJ - 25 August 2011)
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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 inconvenience.

In order to avoid an interim order being made, the Respondents were prepared to offer undertakings to the Court:

  1. limiting the airstrip use only to Mr Toole himself, with no flights being made for any aircraft for any other purpose;
  2. that there be not more than three flights (being a total of six movements) in any week; and
  3. 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 application, that:

  1. 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.
  2. 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 itself.
  3. 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.
  4. The inconvenience to the Respondents was not dire, but it was a level that should be weighed in the balance.
  5. 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.
  6. The balance of convenience fell on the side of not granting the interim enforcement orders sought.

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