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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 9 April 2001
Judgment of Her Honour Judge Trenorden, Commissioner Hutchings and Commissioner Mosel
Respondent: DISTRICT COUNCIL OF MOUNT BARKER
Counsel: MR K. TREDREA - Solicitors: NORMAN WATERHOUSE
ERD-00-514
Judgment No. [2001] SAERDC 11
19 January 2001
THE COURT DELIVERED THE FOLLOWING JUDGMENT:
1 This matter is an appeal pursuant to section 86(1a)(ii) of the Development Act 1993 against a condition imposed on a provisional development plan consent granted to the appellant by the District Council of Mount Barker (the Council) on 3 April 2000. The subject land is allotment 33 in Deposited Plan 54758, Hundred of Macclesfield (Certificate of Title Volume 5817 Folio 128) together with allotment 15 in deposited plan 51464, Hundred of Macclesfield (Certificate of Title Volume 5711 Folio 285). The subject land is south-west of the Macclesfield township. The development which received consent was the change in use of the land to viticulture, in association with some existing grazing use. Consent was granted subject to four conditions. The condition, which is the subject of appeal, reads as follows:
"2. That no gas guns or other noise emitting devices be used on the property to scare or deter bird life."
2 By his notice of appeal, the appellant sought to have condition number 2 deleted and seven new conditions, limiting the operation of bird scaring devices, imposed in lieu thereof.
3 Following the closure of the conference convened by the Court, without settlement being reached, the matter proceeded to hearing on 13 to 15 November 2000 and 20 December, 2000. The Court heard evidence from the appellant (Mr MacGillivray); his vineyard manager (Mr Thomas); acoustic experts (Mr Maddern and Dr C Turnbull); planning consultants (Mr G Burns and Dr S Gupta); the Council Planning Officer, Mr B C Victory; a scientist, Dr R Sinclair; and two residents of Macclesfield, Messrs K Barrett and D Burt.
The Subject Land
4 The subject land, which has previously been identified, had been used in the past for potato growing and grazing. Apparently, the land has not been used for the growing of potatoes for some nine years. Vines were planted on part of the land in about 1997. It is proposed to plant more vines on another part of the land which was previously used for grazing purposes.
5 The area of the subject land, which is known as the Longview Vineyard, is approximately 94 hectares in its entirety. It is proposed that vines will be grown on approximately 60 hectares of the land.
6 The subject land is located approximately one kilometre south-west of the township of Macclesfield. It is undulating. The land may be accessed from Bowey Road and from Banksia Road. The vineyard has, or will have, a frontage to Banksia Road which is an unmade road reserve.
7 The locality is rural in nature, with viticulture and grazing being the predominant uses in the locality.
Development Plan
8 Given that the development application was been made on 26 November 1999, the relevant Development Plan is the Mt Barker (DC) Plan consolidated on 16 September 1999.
9 The subject land is situated within the Rural Watershed Protection Zone, which has a number of objectives. The first two objectives which are labelled as "General", are as follows:
"Objective 1: A zone primarily for low-intensity farming on large holdings which does not pollute surface or underground water resources. Objective 2: The maintenance of a pleasant, attractive rural landscape characterized by verdant undulating pasture lands, dotted with clumps of large majestic gum trees with the occasional cluster of farm buildings."
The Issues
10 The issues in this matter were reasonably clear from the outset. The arguments in favour of the retention of the condition appealed against, relate to the noise emitted by audible bird scaring devices, particularly gas guns, and the nuisance created thereby. The appellant argues that audible bird scaring devices and, in particular, gas guns, are necessary, as one of a range of devices, to protect his crop against being ravaged by pest birds. He would prefer that audible bird scaring devices and, in particular, gas guns, be allowed, but operated subject to suggested conditions designed to limit noise emissions and, therefore, any resulting nuisance, as suggested by him.
The Merits
11 By its decision, the Council determined that the use of the subject land for viticulture was appropriate, notwithstanding the provisions of the Development Plan, provided gas guns were not used. It cannot be said that the objectives for the Zone encourage viticulture as a land use in the Zone, in light of what fell from the Full Court of the Supreme Court of South Australia in City of Mitcham v Fusco and another (2000) SASC 250, delivered 4 August 2000. In that matter, a question for consideration was whether "horticulture", in the nature of olive growing, was a use included in the term "agriculture" as used in the relevant development plan. The Full Court held that, in determining the meaning of terms used in the relevant zone principle of development control which listed the kinds of development expressed to be non-complying within the zone, assistance must be gained from consideration of the zone objectives and study of the zone principles of development control, in addition to any meaning given to a word by Schedule 1 to the Development Regulations 1993.
12 Objective 1 for the Rural Watershed Protection Zone encourages "low-intensity farming on large holdings which does not pollute surface or underground water resources". Schedule 1 to the Development Regulations gives the following meaning to terms used in the Development Plan, unless the context suggests otherwise:-
""farming" includes the use of land for any purpose of agriculture, cropping, grazing or animal husbandry, but does not include horticulture, commercial forestry, horse keeping or any intensive animal keeping or the operation of a stock slaughterworks or dairy;
"horticulture" means the use of land for market gardening, viticulture, flori-culture, orchards, wholesale plant nurseries or commercial turf growing."
The term "agriculture" is not defined.
13 Neither Objective 1 or 2 for the Zone can be said to encourage horticulture. The only Zone objective which might be said to encourage commercial viticulture is Objective 5 which states:-
"the long term sustainability of rural production in the Mount Lofty Ranges region ensured".
14 However, "horticulture" is clearly exempted from the category of uses which are non-complying within the Zone (Principle of Development Control 125) and may be pursued in rural areas where the land is particularly suitable for horticultural purposes; (see Zone Principles of Development Control 110 and 113). Thus, in rural areas of the Zone, on land which is suitable, productive horticulture and viticulture may be said to be encouraged in the interests of maintaining rural productivity, notwithstanding the primary objectives for the Zone.
15 It cannot be successfully argued that the Council's condition precluding the use of audible bird scaring devices, makes suitable a land use which is inherently unsuitable. Dr Sinclair's evidence revealed that the use of audible bird scaring devices is not an incident of the use of land for viticulture. According to Dr Sinclair, audible bird scaring "is the most common management practice utilised by growers to control bird damage in vineyards ..." and "the most common auditory device is the gas gun". He continued, "I consider that bird management on the 'Longview' property without some noise emitting devices would not be successful unless the majority of the vineyard was netted". In an article written by Dr Sinclair which is attached to his statement, he has stated, in relation to exclusion netting of vineyards, which he acknowledges is not the appropriate solution in all situations, as follows:-
"in the future (netting) may be the only way of controlling birds in some situations given increasing concerns about the use of chemicals, animal welfare issues and restrictions on the use of noise generating devices under noise pollution control legislations".
Thus, while audible bird scaring devices are a preferred management tool for the deterrent of birds where land is used for commercial viticulture, they are not a necessary incident of that land use. We noted that Mr Walsh QC, for the appellant, at the end of the day resiled from his earlier submission that the use of gas guns is part of the use of viticulture. It follows upon our finding, that the replacement of the challenged condition with conditions limiting the use of audible bird scaring devices would not, in principle, be inappropriate in the sense that they would render suitable, a land use which is inherently unsuitable, in the sense discussed in Remove-all-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 at p.34 and SA Housing Trust v Lee (1993) 81 LGERA 378 at p.390.
16 That which remains to be discussed, is the issue of whether the maintenance of condition 2 is appropriate, having regard to the provisions of the Development Plan. Noise and noise nuisance are addressed in the Zone provisions. The relevant references are as follows:-
"16. Development should not detrimentally affect the amenity of its locality or cause nuisance to the community; (a) by the emission of noise, ....; or 22. Development should not be undertaken if the construction, operation and/or management of such development is likely to result in: (g) noise nuisance;"
17 The contents of Principle of Development Control 16 for the Zone also find expression in Council Wide Principle of Development Control 12.
18 The appellant has made it clear that he is not seeking to use audible bird scaring devices, and, in particular, gas guns, in an unlimited fashion. Through his planning consultant, he submitted to the Council for its consideration in the course of the decision making process, that restrictions could be placed on the use of audible bird scaring devices, including gas guns. In his letter dated 20 January 2000, to the Council, Mr MacGillivray indicated that he was actively seeking "the right no-noise solution" in relation to scaring birds away from the vineyeard. He stated that "I am doing my utmost by working with non-noise bird scaring devices to minimise and hopefully eliminate gas guns from LONGVIEW VINEYARD", and further advised that gas guns would only be used when completely necessary and that he would accept specified limitations on the use of gas guns in the vineyard. Subsequently, Mr MacGillivray's planning consultant, Mr Graham Burns, forwarded to the Council's planning officer, on 28 March 2000, his suggestion conditions relating to the use of audible bird scarers in the Longview Vineyard. The suggested conditions are the same conditions which the appellant, in his notice of appeal to this Court, indicated he would accept in lieu of the appealed condition 2. Those suggested conditions, which it is proposed should replace condition 2, are set out hereunder:-
"2.1.1 audible bird scaring devices, including gas guns, shall only be used on the Land between 20 February and 15 April in each year; 2.1.2 audible bird scaring devices, including gas guns, shall not be activated within 200 metres of a dwelling that does not form part of the land upon which the device is located; 2.1.3 audible bird scaring devices shall only be activated between the hours of 7am and 8pm Mondays to Saturdays, 8am to 7pm on Sundays and at a frequency of not more than 6 detonations per hour; 2.1.4 not more than one audible bird scaring device shall be activated for every 10 hectares of land planted to grapevines; 2.1.5 every audible bird scaring device shall be sited so as to face away from the nearest neighbouring dwelling; 2.1.6 a cleared open area having a radius of not less than 4 metres shall be maintained around each audible bird scaring device which is in the nature of a gas gun; 2.1.7 that at all times between 20 February and 15 April in each year the District Council of Mount Barker shall be provided with the current and contactable telephone number of the person responsible for the use of any automatic audible bird scaring device on the Land;"
19 There is no legislated policy in South Australia relating to the use of audible bird scaring devices, or gas guns, nor is there any formal policy or guideline relating to the same. In some other Australian states, noise control or Environment Protection Authority guidelines exist in relation to gas scare guns. Mr Maddern gave expert evidence for the appellant in relation to the noise and noise nuisance impact from the proposed use of audible bird scaring devices including gas guns, on the subject land. He accepted that 300 metres was the appropriate minimum distance between the position of a gas gun and a noise sensitive location, such as a dwelling. It should be noted that the 300 metre distance is a line of propagation distance. However, he also accepted that a lesser separation distance was acceptable where the noise level did not exceed 100dBLinPeak. It was accepted by both Mr Maddern and Mr Turnbull that, because of the effects of topography upon noise emissions, the anticipated linear peak levels are a more appropriate indicator of impact at a potentially noise sensitive location, than is the distance between the noise sensitive location and the source of the noise. Both expert witnesses accepted that, in the event that no restriction was placed on the location of gas guns, some dwellings in the vicinity of the subject land would be likely to be seriously affected by the levels of noise emitted as a consequence of the firing of gas guns on the subject land. The volume of noise received at any particular location will depend on the orientation of the gun in relation to a particular location, the prevailing meteorological conditions, the topography and the existence of any structures likely to absorb noise which may be positioned between the source of the noise and the receptor. It is fair to say that the opinions of Mr Maddern and Mr Turnbull were not widely divergent.
20 It is considered that there is potential for annoyance to those living in the vicinity of the subject land from the noise of gas guns used to scare birds from the vineyard. There is also a potential for annoyance to be caused to residents of the township of Macclesfield, particularly those living or working in the south-western area of the township. However, we have concluded that it is likely that the resulting noise nuisance to this category of persons from the use of gas guns on the subject land would not be as serious as that likely to result to those occupying some of the dwellings on rural properties in the vicinity of the subject land. In so saying, we do not discount the evidence of Messrs Burt and Barrett, but we accept that sensitivity to noise is subjective and may be dependent upon the particular activity or occupation in which a person is engaged at the relevant time. Thus, we accept that the noise of gas guns being fired at intervals might be unacceptably annoying for a person quietly engaged in concentrated study of a text, or in the preparation of a thesis, assignment or report or other occupations. Ultimately, the level of noise which is acceptable will be a function of the community's desire to have a comfortable, relatively noise free residential environment, and the community's economic aspirations. The question is whether it is acceptable that persons should suffer noise nuisance as a result of the use of gas guns on a vineyard, in the interests of enabling the vineyard owner to maximise crop production. In the context of the location of the subject land, its proximity to the township of Macclesfield and the relevant provisions of the Development Plan which appear to encourage rural production, the maintenance of rural productivity and the maintenance of productivity of land for primary production, we have concluded that it is acceptable, subject to the imposition of conditions designed to limit the noise nuisance to the community within reasonable bounds.
The Planning Evidence
21 Before we come to the conditions which we would impose, there are two matters which must be addressed. One relates to the evidence of the expert planning witnesses, and the other to a submission that some of the proposed conditions would not be capable of enforcement and therefore should not be imposed.
22 Counsel for the Council criticised the evidence of Mr Burns. As indicated earlier, Mr Burns had drafted the suggested conditions which would have allowed the controlled use of gas guns on the subject land. In his statement dated 6 November 2000, Mr Burns modified his earlier conclusions and "having (had) regard to Mr Maddern's investigations and findings", he amended the suggested conditions under which, in his view, gas guns could be operated on the subject land. Mr Burns gave his evidence following the evidence of Mr Thomas, the vineyard manager, Mr MacGillivray, the appellant, Dr Sinclair and Mr Maddern. In the course of his oral evidence, he appeared to resile from the view that the amended conditions as set out in his statement, would be appropriate in lieu of the existing condition 2. His revised view was without explanation. The Court could only infer that his view had been revised in light of the evidence of Mr MacGillivray, which was against the revisions and in favour of the conditions proposed as originally drafted by Mr Burns. The result was that on the limited issue of whether the changes to the suggested conditions as proposed in Mr Burn's statement were preferable, we found his evidence confusing and remain unsure of his professional opinion. It would be bold of us to conclude that Mr Burns changed his professional opinion only because it conflicted with the wishes of the appellant, and we do not so conclude.
23 We also consider it necessary to comment on Dr Gupta's evidence. We were not particularly assisted by his evidence. Approximately 6 of the 11 pages comprising Dr Gupta's statement contained extracts from the Development Plan and approximately 2 pages appeared to be devoted to an assessment of the proposal. There was a dearth of reasoning in the "assessment" parts of the statement. This omission was not made good in oral evidence. The quotation of portions of the relevant Development Plan, to the extent that it occupies whole pages of the statement of evidence of an expert planning witness, is not of assistance to the Court, particularly when the portion is quoted without comment upon its relevance in the circumstances of the proposed development. The Court expects that the statement of evidence of an expert witness will contain the opinion of the expert and the reasons in support thereof, in accordance with the Court's Practice Direction No 5.
Enforceability of Conditions
24 Mr Tredrea, for the Council, submitted that the conditions sought by the appellant, or some of them, would be unenforceable. He also attacked the proposed conditions, or some of them, as being inappropriate because they were either vague or ambiguous. These may be apt criticisms, but they are not incurable. It is not the role of the Court to decide between condition 2, on the one hand, and the seven conditions preferred by the appellant on the other hand. It is the role of the Court to decide whether condition 2 should stand, or be deleted, and if deleted, whether other conditions should be imposed. If the latter, those conditions are for the Court to determine, notwithstanding that the appellant may have a particular preference. The Court has to make a planning decision.
Conclusion
25 We are satisfied upon the evidence that condition 2 should be deleted and thus that the appeal should be upheld. We are equally satisfied that conditions should be imposed to regulate the use of gas guns and limit the noise to be emitted from the subject land by their use. The conditions we would impose in lieu of condition 2 are as follows:-
1. Where gas guns are to be used for the purpose of scaring birds away from the vines, they shall be used on the Land only between 20 February and 15 April in each year and only as part of a range of bird deterrent devices;
2. No gas gun or noise producing bird deterrent device shall be activated within 300 metres of a dwelling but not including any dwelling erected upon the Land comprised in Certificate of Title Register Book Volume 5817 Folio 128;
3. Gas guns may only be activated between the hours of 7am and 8pm Mondays to Saturdays and 8am to 7pm on Sundays;
4. The number of gas guns that may be activated on the Land shall not exceed in total, one gas gun per every 10 hectares of land which is completely planted to grapevines, but shall not exceed 6 gas guns;
5. No gas gun shall be activated at a more frequent rate than six detonations per hour (a detonation meaning a single report);
6. No gas gun may be located on the Land unless located within that area identified by red shading on drawing number 001003 prepared by Peter Maddern & Associates Pty Ltd and sited so as to face away from the nearest dwelling at an angle of at least 90°;
7. A permanent acoustic screen, constructed in accordance with the advice of an acoustic engineer, shall be erected adjacent to any gas gun when located at or in the immediate vicinity of source position 2 as identified on drawing 001003 prepared by Peter Maddern & Associates Pty Ltd;
8. Any gas gun to be used shall be located either between vine rows or in a cleared open area having a radius of not less than 4 metres;
9. That at all times between 20 February and 15 April in each year the District Council of Mt Barker shall be provided with the current mobile or other telephone contact number for the vineyard manager, or other person responsible from time to time for the operation of noise generating bird scaring devices, including gas guns, on the land.
26 There will be an order amending the provisional development plan consent accordingly.
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