55/14 Ward & Anor v Rockhampton Regional Council & Anor [2014] QPEC 67

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(Rackemann DCJ - 28 November 2014)
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Planning and environment – application to regularise use for airstrip and associated facilities in the Rural Zone – airstrip proximate to neighbours – submitter appeal against approval – applicant appeal against conditions – whether conflict with the Planning Scheme – whether use would adversely affect livestock – whether use is a major utility as defined – meaning of "navigation aids" – whether it satisfies criteria for consistent use – whether "recreational activity" – whether "community facility" – whether compatible with surrounding Rural Purposes – whether developed to support preferred uses – whether adverse impact on perceptions of amenity – use of expert and non-expert evidence – reasonable expectations – sufficiency of grounds to warrant approval notwithstanding conflict

Facts: These were a submitter appeal and a conditions appeal about the Rockhampton Regional Council's decision to approve a development application for a development permit for a material change of use to facilitate a private airstrip including hangars for six aircraft and an aviation fuel storage and dispensing facility (airstrip) on land at Tungamull, east of Rockhampton.

The conditions appeal (4896 of 2012) was commenced by the applicant (Toole) against conditions imposed on the approval restricting the use to a "low key" facility.

The submitter appeal (205 of 2013) was commenced by Ward and Lever, who owned residences in close proximity to the proposed airstrip.

Decision: The Court held:

1. The proposal did not conform with all aspects of the DEOs but would not have any material effect on their achievement at a shire wide level.
2. The evidence did not justify a conclusion that the intensity and character would be similar to surrounding "Rural Purposes".
3. It had not been demonstrated that the substantive purpose for the facility was in order to support preferred uses in the Rural Zone.
4. The nature of the facility, being a private airstrip to facilitate a limited number of movements being those the operator at the time chose to permit, limited the potential of the facility to play a significant role in terms of fulfilling any substantial public or community need or in providing a benefit of significance.
5. The evidence did not justify a conclusion either that the airstrip was needed to support the viability of Toole's modest cattle business or that its provision would have any significant effect in creating economic demand for services and supplies. Further, those in need of landing facilities for light aircraft and helicopters already had an existing range of options.
6. The proposal conflicted with the provisions relating to the rural zone. Even if it were operated in order to minimise adverse impacts, the evidence had not established that it had been located to minimise adverse impacts on the amenity of adjacent properties. The extent of conflict was significant.
7. The location of the airstrip was poor, in terms of respecting amenity and it had the potential to cause unacceptable impacts.
8. Approval of the airstrip would likely result in some adverse amenity consequences both in psychological and direct terms.
9. The likely psychological impacts of the proposal were not impacts which had determinative weight.
10. The operational controls were not sufficient to ensure that adverse impacts on the acoustic amenity would be kept within reasonable or acceptable limits.
11. The imposition of more stringent controls would not overcome the fact that the proposal was poorly located. In addition there was no evidence about the point at which impacts became unreasonable and the operational controls would be difficult to monitor and enforce at a practical level.
12. The grounds in support of the application, notwithstanding conflict, were weak and the application was refused.