Morgan v DC of Mt Barker & Barrett & Mutton No ERD-02-545 [2003] SAERDC 39 (27 March 2003)

Last Updated: 30 March 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

17/03/2003 to 19/03/2003.

Representation

Appellant: DR OWEN I MORGAN
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

Respondent: THE DISTRICT COUNCIL OF MT BARKER
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Respondent: MR K BARRETT
In Person

Respondent: MR SA MUTTON
In Person

ERD-02-545

Judgment No. [2003] SAERDC 39

27 March 2003

DR OWEN I MORGAN

v

DISTRICT COUNCIL OF MT BARKER

and

K. BARRETT

and

S. A. MUTTON

(ERDC No. 545 of 2002)

[2003] SAERDC 39

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against a decision of the District Council of Mt Barker ("the Council") made on 1 July 2002, to refuse an application by Dr Owen I Morgan ("the Appellant"), which application sought consent for the variation of a condition attaching to a consent issued by the Council on 21 September 2000. The latter consent was for the use of land owned by the Appellant at Davis Road, Macclesfield for viticulture. The condition of consent at issue was as follows:

"That no gas guns or other noise emitting devices be used on the subject land to scare or deter bird life."

2. The Appellant, being aggrieved by the decision of Council, appealed to this Court against it. By order dated 19 September 2002 the Court joined Mr K Barrett ("the Second Respondent") and Mr S Mutton ("the Third Respondent"), both of whom reside in the vicinity of the subject land, as parties to this appeal.

3. Prior to the commencement of the hearing, and in response to the submission of an amended proposal by the Appellant, the Council resolved to support that proposal. The Second and Third Respondents remained opposed to it.

4. When the matter came on for hearing, the Appellant was represented by Mr J Hilditch, of counsel, and the Council by Ms S Grebe, a qualified town planner in its employ. The Second Respondent was represented by Mr D Burt and the Third Respondent represented himself. The Court, in the company of the parties, conducted a view of the subject land and its locality, received a number of exhibits, and heard evidence from Mr G Burns, a qualified town planning consultant, Mr P Maddern, a qualified acoustic engineer, Mr J Turner, a qualified mechanical engineer in the employ of the Environment Protection Agency, who appeared under subpoena, Ms S Grebe, Mr S Mutton, Mr D Burt, Dr L O'Dwyer, Mr M Ferrarese, Mr K Williams and Mr P O'Malley, the last six named being owners or occupiers of land within the vicinity of the subject land or within the township of Macclesfield.

The Subject Land and Locality

5. The subject land has a total area of 35.21ha, and is located on the south-western outskirts of Macclesfield. The northern boundary of the land has a frontage to Davis Road, a sealed local rural road, while the southern boundary has a frontage to Banksia Road, an unmade road reserve covered with native vegetation. Vehicular access to the land is obtained via Davis Road.

6. Approximately 24.2ha of the land has been developed as a vineyard. The latter is arranged in two distinct blocks, separated by a stand of native vegetation covering the central part of the property. Within the latter area are located machinery and equipment, storage sheds and a dwelling. The northern block has a planted area of approximately 7.45ha, and the southern block, 13.68ha.

7. Surrounding land is devoted to a variety of uses, including grazing to the north, west and east, viticulture on the southern side of Banksia Road, and rural residential uses, predominantly to the north, north-east and east of the land. Also to the north-east is a commercial enterprise, Agribusiness Products Pty Ltd.

8. The land is located wholly within the Rural Watershed Protection Zone, with the north-eastern boundary adjoining a Deferred Urban Zone.

The Proposal

9. The proposal originally under consideration by the Council, and refused by it, entailed the use of a combination of gas guns and a shotgun throughout the vineyard, in order to deter bird strikes on ripening grapes. The amended proposal, which the Council now considers acceptable, entails the use of a shotgun as part of an integrated bird management plan which would also involve the use of non-audible devices including netting, human patrolling, helium kite balloons and maypoles. No gas guns are now proposed.

10. It is proposed that a shotgun be used under the following conditions:

(a) shooting being restricted to those parts of the vineyard located 250m or more from neighbouring houses;

(b) shooting taking place only between 7.00am and 8.00pm;

(c) no more than 20 shots per day being fired in each of the northern and southern blocks;

(d) shooting taking place only between 1 February and 7 May each year;

(e) the shotgun being aimed away from the Macclesfield township when activated; and

(f) 28g standard TRAP ammunition or smaller being used for bird scaring purposes.

11. An integrated bird management plan has been submitted to and endorsed by the Council.

Assessment

12. Although the use of a shotgun in the manner proposed does not constitute development per se, it requires planning consent because it entails the deletion of a condition of planning consent previously imposed by the Council.

13. The second and third respondents had two primary concerns about the proposal:

(a) the potential for noise nuisance to occupiers of nearby properties, and the township generally, created by the firing of a shotgun, up to 40 times a day, in the natural amphitheatre created by the hills surrounding the township; and

(b) the attendant risk to occupiers of adjoining properties.

14. As I have said, the subject land lies within the Rural Watershed Protection Zone as depicted on Map MtB/11 in the Development Plan for Mr Barker (DC) dated 18 October 2001. Several Development Plan provisions for that zone address the issue of noise pollution:

Rural Watershed Protection Zone

"Principle 14: Development should not detrimentally affect the amenity of its locality or cause nuisance to the community:

(a) by the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products, electrical interference or light;

...."

"Principle 20: Development should not be undertaken if the construction, operation and/or management of such development is likely to result in:

....

(g) noise nuisance;

...."

15. More General Zone provisions of relevance are:

"Objective 7: The enhancement of the amenity and landscape of the Mount Lofty Ranges region for the enjoyment of all residents and visitors."

"Principle 11: Development should take place in a manner which will not interfere with the effective and proper use of other land in the vicinity and which will not prevent the attainment of the objectives for that other land."

16. Other Development Plan provisions of particular relevance are:

Council Wide

"Objective 44: Protection of the environment from noise and visual pollution and the pollution of air, land or water."

"Principle 13: Development should not detrimentally affect the amenity of its locality or cause nuisance to the community:

(a) by the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products, electrical interference or light;

...."

17. There do not appear to be any provisions of the Development Plan which address the safety concerns raised by the Second and Third Respondents, which concerns, are, in my view, more appropriately addressed by the provisions of the Firearms Act 1977.

18. The evidence of Mr Maddern was that, on the basis of measurements taken at several locations adjacent the subject land, involving the discharge of a shotgun on that land, he had concluded that the impact of the proposal would be acoustically satisfactory and consistent with the requirements of the Development Plan, provided:

(a) the gun was discharged at a distance of not less than 250m from dwellings not associated with the subject land;

(b) no more than 20 shots/day were fired on the north block and the central treed area; and

(c) ammunition used was 28gram standard TRAP ammunition or smaller.

19. Mr Turner, who was subpoenaed by the Second and Third Respondents, advised the Court that he agreed with the conclusion reached by Mr Maddern. He acknowledged the potential for the cumulative impact created by noise from audible bird-scaring devices on the three vineyards relatively close to the Macclesfield township, but did not consider the general environmental duty imposed by the Environment Protection Act 1993 would be breached by the combined bird-scaring operations of those vineyards. That said, he conceded that some occupants of dwellings in the locality could find the noise of bird-scaring devices annoying, while observing that it was necessary, in dealing with noise to which responses were necessarily subjective, to establish an objective standard which represented a balance of interests.

20. Dr O'Dwyer, Mr Burt, Mr Mutton, Mr Ferrarese, Mr O'Malley and Mr Williams, in evidence, advised the Court that they were disturbed by existing bird-scaring devices on vineyards adjoining or close to the subject land, and had also been disturbed by a range of activities on the subject land, including spraying and harvesting machinery and, in the past, the discharge of a shotgun. Dr O'Dwyer, Mr Mutton and Mr Ferrarese also expressed concern regarding potential risks associated with shotgun use, including risks to persons riding horses on land adjoining the subject land.

21. The evidence of Mr Burns was that, having regard to the evidence of Mr Maddern, the use of a shotgun as a bird-scaring device under the conditions recommended by Mr Maddern would not cause an unreasonable disturbance or nuisance to the surrounding community nor would it affect the amenity of the locality to an unreasonable degree. Similar views were expressed by Ms Grebe.

22. Mr Mutton and Mr Burt submitted that viticulture, being a relatively intensive form of agricultural activity, was inappropriate as a use of land within the Rural Watershed Protection Zone. It is true that Objective 1 for the zone refers to it being "primarily for low-intensity farming on large holdings" and Objective 2 to "a.... rural landscape characterised by verdant undulating pasture lands, dotted with clumps of large majestic gum trees with the occasional cluster of farm buildings". Nevertheless, Zone Principles 111 and 114 do appear to provide some encouragement for viticulture:

"Principle 111: Rural areas should be retained primarily for horticultural, agricultural, pastoral and forestry purposes and other uses compatible with maintaining rural productivity."

"Principle 114: Land which is particularly suitable for agriculture, including viticulture and horticulture, should be used or remain available for such agricultural purposes."

23. It also has to be accepted that a number of vineyards, including that on the subject land, already exist lawfully on the outskirts of Macclesfield.

24. It is clear that the combined effect of noise-emitting bird-scaring devices on those vineyards is a source of annoyance to some occupiers of nearby dwellings and some residents of the township further removed from the subject land, that noise being audible for a considerable distance under some atmospheric conditions. It is equally clear that, notwithstanding the finding of this Court in MacGillivray v District Council of Mt Barker [2001] SAERDC 11, that the use of audible bird-scaring devices was not a necessary incident of the use of land for viticulture, such devices remain an important component of the array of measures used by viticulturists to protect ripening grapes from bird strike.

25. In deciding to support the amended proposal the Council required, and was provided with, an integrated bird management plan for the subject land, outlining additional devices to be used to scare or deter birds. One of the proposed devices is fruit zone netting, and it was clear from the view that substantial parts of the vineyard have already been netted in this manner. The bird management plan, which was appended to Mr Burns' statement of evidence, indicated that, subject to satisfactory results from the netting programme already undertaken, further netting may occur, subject to the availability of funds.

26. It is evident that the Appellant is not placing total reliance on the use of a shotgun as a bird deterrent, and has invested considerable sums in netting more than 60% of the north block and a small portion of the south block. It may well be that, over time, the remainder of the vineyard is netted and there will no longer be a need to use audible bird-scaring devices. That, however, cannot be assumed and the question to be resolved by this Court is whether the use of a shotgun as a bird-deterrent measure, and under the conditions now proposed, is consistent with those provisions of the Development Plan directed towards prevention of noise nuisance created by development.

27. All the expert evidence on noise suggests that individuals' sensitivity to noise varies considerably, both as to the volume and nature of that noise. Both Mr Maddern and Mr Turner made reference, in their evidence, to a comprehensive study of artillery noise on dwellings within a NSW residential area in close proximity to an artillery range1. That study used a noise descriptor known as the APL (accumulated peak level), which took into account not only the noise level of the emission, but the number of shots fired. Using the same methodology Mr Maddern calculated, on the basis of his noise measurements on and near the subject land, an APL of 110.4 at a distance of 250m from the point of discharge. On the basis of the study referred to, this would correspond to 8% of persons at that distance being seriously affected by the noise, and 37% moderately affected.

28. Noise levels approaching those created by a shotgun at 250m were, said Mr Maddern, relatively commonplace in the locality, and taking account of the fact that use of a shotgun would not have the same frequency of occurrence as gas guns (the adjoining vineyard has approval for six gas guns discharging a maximum of six shots each per hour and would occur from a variety of positions on the subject land, he did not consider the resultant noise, while identifiable, would be sufficient to cause nuisance or detrimentally affect amenity in the terms of the provisions of the Development Plan. Mr Turner, as I have noted earlier, was of the same view.

29. I have considerable sympathy for the Second and Third Respondents. There is no doubt that the introduction of vineyards into the locality of Macclesfield has resulted in noise, over about three months of the year, which has hitherto not been experienced. I do not doubt the sincerity of those witnesses who told the Court they found existing noise created by gas guns annoying or even upsetting. However, because of the subjective nature of human reactions to noise, it is necessary to develop objective standards as a basis for determining what constitutes noise nuisance and impairment of amenity. Having regard to the expert evidence of Mr Maddern, Mr Turner, Mr Burns and Ms Grebe and to those provisions of the Development Plan which seek the maintenance of rural productivity and the maintenance of productive land for primary production purposes, I am satisfied that, subject to appropriate conditions, the proposal will not alter the existing acoustic environment to such an extent as to conflict with the relevant provisions of the Development Plan.

30. In the course of the hearing Mr Mutton and Mr Turner suggested a number of conditions which should be imposed, should I decide that the proposal should proceed. A number of the proposed conditions related to the safe handling and discharge of a shotgun, and in my view, are more appropriately addressed by the provisions of the Firearms Act 1977. Others appear to serve no planning purpose. Where I consider the proposed conditions serve a proper planning purpose and are capable of sensible enforcement, I have incorporated them in conditions of consent.

31. The decision of the Court is that this appeal is upheld and Provisional Development Plan Consent granted for a variation to the Development Approval granted for Development Application Number 580/0481/00, which variation is the deletion of Condition 2 attaching to that consent and the imposition of the following conditions in substitution therefor:

1. The only audible bird-scaring device to be used shall be one (1) only 12-gauge shotgun to be fired on the property at any one time in accordance with the following conditions:

(a) the shotgun shall not be discharged more than 20 times per day on the "North Block" and 20 times per day on the "South Block" , these totals being inclusive of any shots fired within the central treed area, and using 28 gram standard TRAP ammunition or smaller;

(b) shooting shall take place only between 7.00am and 8.00pm on any day, and only between 1 February and 7 May each year.

(c) the shotgun shall be aimed away from the township of Macclesfield during firing from any area on the property;

(d) the shotgun shall not be discharged within 250 metres of any neighbouring dwelling;

(e) that portion of the vineyard within a 250m radius of neighbouring dwellings shall be delineated by appropriate markings on vineyard trellis posts to the reasonable satisfaction of Council;

(f) the name of the farm manager and his/her mobile telephone number shall be displayed on the front gate of the subject land at all times; and

(g) the safety practices to be adopted in relation to the proposed use of a shotgun (which shall include details of training to be undertaken by all persons discharging such gun) shall be documented and made available to Council for inspection and copying at all times.

32. There will be an order accordingly.