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EDWARDS v DISTRICT COUNCIL OF MOUNT BARKER & ORS [2007] SAERDC 9 (26 February 2007)

Last Updated: 28 February 2007

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

EDWARDS v DISTRICT COUNCIL OF MOUNT BARKER & ORS

[2007] SAERDC 9

Judgment of Her Honour Judge Cole, Commissioner Agnew and Commissioner Hamnett

26 February 2007

LOCAL GOVERNMENT - TOWN PLANNING

Appeal against the refusal of an application to vary a condition attached to a consent for a change of use of land from grazing to viticulture - the consent precluded the use of "audible bird scaring devices" - third parties joined - impact of noise nuisance and loss of amenity upon nearby residents - relevant criteria set out in "Draft Environment Noise Guidelines for Audible Bird Scarers", the Environment Protection (Machine Noise) Policy 1994 and the Environment Protection (Industrial Noise) Policy 1994 considered - balance between primary production and residential amenity considered - appeal dismissed.
Development Act 1993, referred to.

EDWARDS v DISTRICT COUNCIL OF MOUNT BARKER & ORS
[2007] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Judge Cole: I agree with Commissioner Hamnett.

Commissioner Agnew: I agree with Commissioner Hamnett.

Commissioner Hamnett:

1 This is an appeal against a decision of the District Council of Mt Barker ("the Council"), on 24 May 2006, to refuse an application by J and H Edwards ("the appellants") which sought to vary a condition attached to a consent issued by the Council on 12 April 1999. This earlier consent was for a change of use of the appellants’ land at Windsor Avenue, Hahndorf, from grazing to viticulture, subject to a number of conditions. The relevant condition which the appellants sought to vary was:

That no ‘audible bird scaring devises’ (sic) be used on the property.

2 The appellants were aggrieved by the decision of Council and appealed to this Court against it. The appellants were represented by Mr K Tredrea, of counsel. Mr J McElhinney, of counsel, represented the Council. The third and fourth respondents, B and P Eblen, ("the respondents") whose residential property adjoins the subject land, were represented by Mr J Costello, of counsel. Mr M Roberts, the second respondent withdrew prior to the hearing.
3 Expert evidence was heard from two qualified town planning consultants, Mr A Rumsby and Mr M Wohlstadt; from two qualified acoustic engineers, Mr C Turnbull and Mr D Jurevicius; and from Ms Dianne Davidson, an expert in viticulture. The Court also heard evidence from Mrs H Edwards, one of the appellants, from Mr P Eblen, on behalf of the respondents, and from Dr Trafford-Walker, a local resident whose property adjoins the subject land.
4 The Court conducted a view of the subject land and its locality, in the course of which a demonstration was provided of the bird-scaring devices which the appellants propose to use on the land.

The Subject Land and Locality

5 The subject land is described in Certificate of Title Register Book, Volume 5657, Folio 135 as Lot 65, Filed Plan 157100 in the Hundred of Onkaparinga. It has an area of 29.95 hectares and is located about 700 metres to the east of the township of Hahndorf. There is a frontage of some 780 metres to Windsor Avenue, a gravel road from which vehicular access to the property is obtained. The subject land is irregular in shape and undulating. A small watercourse runs across the land roughly from the north-east to the south-west and feeds two dams on the western side of the property. Some 24 hectares of the land are currently planted with vines.
6 The subject land is located in an area which is characterised primarily by a mix of grazing, crop production and viticulture with some stands of native trees remaining along property boundaries and creeks. There are also several existing residences on properties adjacent to the subject land. Both of the expert planning witnesses relied on the likely area of impact of the proposed bird-scaring devices in defining the relevant locality for this application. Thus, Mr Rumsby, in his statement of evidence, noted that ‘I have determined the locality to comprise primarily that area from which the proposed bird-scaring devices can be potentially heard, and have extended the area to also include the nearest residences on those potentially affected properties’. Mr Wohlstadt identified eleven residences which, in his opinion, were likely to be impacted by noise from the proposed bird-scarers and defined his locality to include these. The Court agreed with the approach taken by the expert planning witnesses to defining the locality. It found the locality to be characterised by a diverse range of primary production activities and rural uses but accepted that the presence of existing residences close to the subject land was significant for the purposes of assessing this proposal.
7 The relevant Development Plan is that for the Mount Barker District Council as consolidated at 17 November 2005. The subject land is located wholly within the Rural Watershed Protection Zone as depicted on Maps MtB/3 and MtB/4 of that Development Plan.

The Proposal

8 As noted earlier, the original consent which allowed the use of the subject land for viticulture is subject to a condition that precludes any use of audible bird-scaring devices. The application submitted to the Council which is the subject of this appeal sought to vary this condition to allow the use of specific bird-scaring devices, described as ‘two separate MSF/BBC electronic audible bird-scaring devices, each consisting of two speakers connected to an electronic control unit’. Mr Jurevicius, in his statement of evidence, provided details of the manufacturer’s specification for these devices. This included the following description of the intended effects of the devices:

The MSF/BBC-8 comprises of all unnatural sounds which birds have never had to contend with before. Like most irritants, the longer the birds are subjected to it, the more it annoys them, as well as overriding their own chatter amongst themselves, thereby making communication difficult, adding to the birds’ stress and fear.

9 The application proposed a number of conditions to limit the use of these devices as follows:
• The operation of a maximum of two speakers at any one time – i.e. the operation of two speakers on one of the devices or the operation of one speaker on each of the devices
• The bird-scaring devices to be used only between the hours of 7 a.m. and 8 p.m. from February to April (inclusive) - normally the period when grapes are vulnerable to damage by birds
• The bird-scaring devices to be used only within a defined ‘allowable speaker placement area’, located a minimum of 300 metres from nearby dwellings.

Assessment

10 The use of bird-scaring devices in the manner proposed does not in itself constitute development. However, approval is required in this case because of the proposal to delete a condition of an existing planning consent.
11 The principal issues in this matter relate to noise and the extent to which noise from bird-scarers is an unavoidable and acceptable consequence of the commercial production of grapes on the subject land. The respondents and Dr Trafford-Walker were primarily concerned at the potential for noise nuisance at their properties. Issues of noise nuisance and amenity also lay at the core of the Council’s reasons for refusing consent.
12 A number of Development Plan objectives and principles are of relevance to this matter, as follows:

RURAL WATERSHED PROTECTION ZONE
OBJECTIVES

1: A zone primarily for low-intensity farming on large holdings which does not pollute surface or underground water resources.
7: The enhancement of the amenity and landscape of the Mount Lofty Ranges region for the enjoyment of all residents and visitors.

PRINCIPLES OF DEVELOPMENT CONTROL

4: Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.
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.
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;

...

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

....
(g) noise nuisance;
...

COUNCIL-WIDE PROVISIONS

OBJECTIVES

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

PRINCIPLES OF DEVELOPMENT CONTROL

10: 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; ...
245: Planning, design and undertaking of primary industry, rural, horticulture, horse keeping or animal keeping development should minimise impacts that ensure acceptable outcomes relating to:

...
(d) emissions of dust, noise, odour or spray drift;
...

13 Turning first to the evidence of the acoustics experts, Mr Turnbull indicated that he had been consulted by the appellants at the time of preparing their application to vary the condition relating to audible bird scaring devices and had recommended a number of measures to control the noise created by the proposed devices to an acceptable level. These included the operation of a maximum of two speakers at any one time; the restriction of the hours of operation to between 7 a.m. and 8 p.m. during the period from February to April, inclusive; and the use of the speakers only within a defined area of the subject land. This area was identified in Mr Turnbull’s statement of evidence and was also indicated in an exhibit received by the Court as ‘Allowable Speaker Placement Area Plan’ (Exhibit A1).
14 There are no approved noise standards which relate specifically to audible bird-scaring devices. A set of Draft Environment Noise Guidelines for Audible Bird Scarers was produced by the South Australian Environment Protection Authority in March 2003. These draft guidelines have no statutory force and are not part of the Development Plan. However, they provide some useful benchmarks and were referred to by both Mr Turnbull and Mr Jurevicius in the course of their evidence. The Court found that, while not necessarily decisive, they were helpful tools in assessing the noise impacts in this matter. On page 4 of the Draft Guidelines the following relevant criteria are set out:
• Noise from audible bird scaring devices before 7 am or after 8 pm must not emit a noise level that exceeds 45 dB(A) at a location other than on the site on which the device is in operation. (This is a mandatory requirement in accordance with the provisions of the Environment Protection (Machine Noise) Policy 1994).
• Electronic/speaker noise, generated as part of an integrated bird scaring strategy, at an L_Aeq of 57 dB(A) when adjusted in accordance with the Environment Protection (Industrial Noise) Policy 1994 is deemed to represent the maximum level of reasonable interference in an area or zone specifically intended for primary production.
• Electronic/speaker noise, generated as part of an integrated bird scaring strategy, at an L_Aeq of 52dB(A) when adjusted in accordance with the Environment Protection (Industrial Noise) Policy 1994 is deemed to represent the maximum level of reasonable interference at the interface between an area or zone specifically intended for primary production and one for rural living or residential amenity (or similar).
15 The Draft Environment Noise Guidelines for Audible Bird Scarers indicate that penalties may be applied according to the character of the noise. A penalty of 5 dB(A) is suggested for each of the characteristics of tone, modulation (frequency or amplitude), and impulsiveness. In this case both Mr Turnbull and Mr Jurevicius agreed that a penalty of 5 dB(A) should be applied because of the modulation characteristic of the noise emitted by the proposed devices.
16 The principal difference between the evidence of Mr Turnbull and that of Mr Jurevicius followed from their respective opinions of the character of the locality. Mr Turnbull was of the opinion that this was best characterised as ‘an area or zone specifically intended for primary production’. This led him to adopt a maximum noise level of 57 dB(A) under the provisions of the guidelines described above. With the application of a 5 dB(A) penalty, this was reduced to a maximum permissible noise level of 52 dB(A). Mr Jurevicius, however, preferred the lower maximum noise level of 52 dB(A) appropriate to ‘the interface of an area or zone specifically intended for primary production and one for rural living or residential amenity (or similar)’ which, after the application of a 5 dB(A) penalty, became 47 dB(A).
17 Mr Turnbull used appropriate modelling techniques to predict the noise from the operation of the proposed bird-scaring devices. He calculated predicted noise levels in relation to two alternative scenarios. The first of these assumed a moderate wind blowing from the devices to six nearby residences, on a day of light cloud cover and with the two operational speakers close to the centre of the defined speaker placement area. The second scenario assumed that the two speakers were located on the boundary of the speaker placement area on an overcast day and with a strong wind from the speakers to the residences. Under the second (‘worst case’) scenario the highest predicted noise level at five of the residences was in the range 50 to 51 dB(A), with a lower predicted maximum of 45 dB(A) at the sixth. This led Mr Turnbull to conclude that predicted noise levels for the bird-scarers would achieve the 52 dB(A) criterion which he had established on the basis of the EPA’s Draft Environment Noise Guidelines for Audible Bird Scarers and his characterisation of the area.
18 Mr Jurevicius was in general agreement with Mr Turnbull’s modelling approach. His own prediction was for a maximum predicted noise level of 49 dB(A) at nearby residences and he concluded therefore that, under worst-case overcast conditions, the noise from the bird-scaring devices could exceed his criterion of 47 dB(A) by up to 2 dB(A). Mr Jurevicius noted that the Draft Environment Noise Guidelines for Audible Bird Scarers indicate that substantial noise level reductions can be achieved by rotating the device away from the receiver and they recommend, therefore, that primary producers should face audible bird scaring devices away from residential properties. He pointed out, however, that this would not be possible in this case because of the ‘omni-directional’ nature of the proposed devices.
19 Mr Rumsby, in his evidence, supported Mr Turnbull’s adoption of the 57 dB(A) level of maximum reasonable noise interference on the basis that the Rural Watershed Protection Zone is an area for primary production – i.e. ‘a zone primarily for low-intensity farming (including horticulture, agriculture, pastoral and forestry uses)’ (Zone Objective 1). However, Mr Wohlstadt and Mr Jurevicius argued that the actual character of the locality should carry more weight than the general zone provisions applying across the extensive Rural Watershed Protection Zone and that the presence of a number of nearby residences supported the adoption of a lower maximum permissible level of noise interference.
20 The Court preferred the approach of Mr Wohlstadt and Mr Jurevicius in this regard. The noise guidelines are most usefully applied to the land uses actually present in the locality rather than to the broad characterisation of the zone by the Development Plan. On this basis, while noting that there was only a slight difference between the conclusions of the acoustics experts, the Court preferred the evidence of Mr Jurevicius to the effect that the noise from the bird-scaring devices at residential receivers could slightly exceed the maximum permissible noise level as he had defined this.
21 Mr Eblen expressed concern at the potential for the noise from the audible bird-scaring devices to limit his ability to enjoy outdoor activities on his property – particularly at weekends when he and his wife would normally be at home and relaxing. He was particularly concerned at the intention to use the devices continuously, seven days a week between the hours of 7 a.m. and 8 p.m. during the months of February, March and April – months when he and his wife would be very likely to be outdoors in the early evening and at weekends.
22 Dr Trafford-Walker expressed similar concerns about the impact of noise from the bird-scaring devices and about the daily duration of the noise. It was his evidence that he had experienced audible bird-scaring devices being used on the Edwards’ property on previous occasions – devices such as those which are the subject of the present proposal and also shotguns. Dr Trafford-Walker suggested that the effects of the local topography were such as to channel noise down the valley from the Edwards’ property to his. Under some conditions he claimed that the noise of bird-scaring devices had been audible and annoying even when he was inside his house and with doors and windows closed. It was also his experience that audible bird-scarers could lead to additional noise nuisance by causing dogs in the vicinity to bark. We accept Dr Trafford-Walker's evidence.
23 Dr Trafford-Walker also expressed his concern at the likely difficulty in enforcing any conditions which might be attached to the use or placement of audible bird-scaring devices and claimed that there had been regular breaches of the conditions attached to the original consent granted to allow the use of the subject land for viticulture which had gone unpunished.
24 The proposal is based on complying with a minimum separation distance of 300 metres from a device to the nearest residential receiver. The plotting of this distance produced the eccentrically-shaped placement area depicted in Exhibit A1. The artificiality of this placement area was referred to during the hearing by Mr Wohlstadt who noted that, if adhered to, it would only allow the bird-scarers to provide protection to grapes on about two-thirds of the subject land. The difficulty of defining the placement area clearly and in an enduring way on the irregularly-shaped and undulating subject land was also mentioned.
25 Mr Wohlstadt also raised other issues relating to the ability of the proposed conditions of operation to be enforced. For example, the condition that only two of the four speakers on the two devices should be used at any one time might be breached unintentionally. There might be more risk of this, he suggested, if current arrangements for operating the vineyard – the close involvement of family members, the employment of permanent staff etc – were to change in future. The Court noted these concerns but was not persuaded that the proposed conditions were inherently unenforceable or that such concerns should influence unduly its primary task of assessing the appropriateness of the proposal on planning grounds.
26 Ms Davidson described her personal experience in operating audible bird-scarers in the Hahndorf area and noted that these devices were capable of causing annoyance at some considerable distance from the source under certain atmospheric conditions. She gave evidence that she has now discontinued the use of audible bird-scarers on her Hahndorf property, although she still uses them in another vineyard at Langhorne Creek which has very few dwellings nearby.
27 As an expert in viticulture Ms Davidson addressed the usefulness of bird-scarers. She was strongly of the view that netting offered a much more effective means of limiting bird-strike than bird-scarers and that the installation and management of nets need be no more expensive or labour-intensive than the installation and operation of bird-scarers. It was her opinion that the subject land had the potential to produce high-quality grapes which could be sold at a premium and that, in these circumstances, the investment in nets was warranted. No expert evidence seeking to refute Ms Davidson’s evidence was provided to the Court.

Conclusion

28 The relevant provisions of the Development Plan, listed earlier, clearly seek a balance between the avoidance of noise nuisance and loss of amenity, on one hand, and the legitimate interests of primary producers on the other.
29 An earlier decision of this Court (MacGillivray v District Council of Mt Barker [2001] SAERDC 11) found that the use of audible bird-scaring devices is not a necessary incident of the use of land for viticulture. In the present case, the subject land has been used for grape-growing for a number of years. It can not be argued, therefore, that the proposed use of bird-scarers is ‘essential’ as required by Zone Principle of Development Control 4. Ms Davidson’s evidence supported this conclusion.
30 However, such devices, while they may not be essential to successful viticulture, are clearly employed by many grape-growers and, as noted earlier, the South Australian Environment Protection Authority has produced Draft Environment Noise Guidelines for Audible Bird Scarers which seek to provide guidance on the use of audible bird-scarers without unreasonably impacting on the quality of life of nearby residents. The draft guidelines place considerable weight on the importance of having a ‘bird management plan’ in circumstances where ‘the operation of audible bird scaring devices might have an adverse impact on the surrounding community’. Such a plan ‘should outline the grower’s integrated bird scaring and management strategies’, and should set out the proposed use of a range of measures, such as visual scarers, audible scarers, noise and movement on the property, netting, habitat management and culling. It was indicated by Mrs Edwards that a number of alternative measures were used on the subject land, but the Court was not provided with evidence of the existence of an integrated bird management plan per se.
31 It may well be that audible bird-scarers could be used on the subject land as part of an appropriate bird management plan. However, we have concerns about the use of the specific devices which are the subject of this particular proposal and about the manner in which they are intended to be used. As noted earlier, they are ‘omni-directional’ devices and cannot, therefore, be made to comply with the recommendation of the Draft Guidelines that such devices be faced away from residential properties.
32 Of major concern to the Court is the sustained nature of the noise emitted by the proposed audible bird scaring devices. These devices emit an array of sounds which is virtually continuous, apart from a very brief pause before changing from one sound to another. There is an interval of 15 seconds at the end of each cycle before the complete cycle begins again. During the period of February, March and April, it is the appellants’ intention to operate these devices for 13 hours a day, 7 days a week.
33 On the balance of the evidence, the operation of these devices in this way and in this locality is likely to impact significantly and adversely on the amenity of local residents. It does not therefore meet the provisions of the Development Plan which relate to the noise and amenity impacts of development, in particular as these are set out in Council-wide Principle of Development Control 10 and Principle of Development Control 14 for the Rural Watershed Protection Zone, both of which require that "Development should not detrimentally affect the amenity of its locality or cause nuisance to the community (a) by the emission of noise..."
34 The decision of the Court is that this appeal be dismissed and the decision of the Council upheld.

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2	The appellants were aggrieved by the decision of Council and appealed to this Court against it. The appellants were represented by Mr K Tredrea, of counsel. Mr J McElhinney, of counsel, represented the Council. The third and fourth respondents, B and P Eblen, ("the respondents") whose residential property adjoins the subject land, were represented by Mr J Costello, of counsel. Mr M Roberts, the second respondent withdrew prior to the hearing.
3	Expert evidence was heard from two qualified town planning consultants, Mr A Rumsby and Mr M Wohlstadt; from two qualified acoustic engineers, Mr C Turnbull and Mr D Jurevicius; and from Ms Dianne Davidson, an expert in viticulture. The Court also heard evidence from Mrs H Edwards, one of the appellants, from Mr P Eblen, on behalf of the respondents, and from Dr Trafford-Walker, a local resident whose property adjoins the subject land.
4	The Court conducted a view of the subject land and its locality, in the course of which a demonstration was provided of the bird-scaring devices which the appellants propose to use on the land.

5	The subject land is described in Certificate of Title Register Book, Volume 5657, Folio 135 as Lot 65, Filed Plan 157100 in the Hundred of Onkaparinga. It has an area of 29.95 hectares and is located about 700 metres to the east of the township of Hahndorf. There is a frontage of some 780 metres to Windsor Avenue, a gravel road from which vehicular access to the property is obtained. The subject land is irregular in shape and undulating. A small watercourse runs across the land roughly from the north-east to the south-west and feeds two dams on the western side of the property. Some 24 hectares of the land are currently planted with vines.
6	The subject land is located in an area which is characterised primarily by a mix of grazing, crop production and viticulture with some stands of native trees remaining along property boundaries and creeks. There are also several existing residences on properties adjacent to the subject land. Both of the expert planning witnesses relied on the likely area of impact of the proposed bird-scaring devices in defining the relevant locality for this application. Thus, Mr Rumsby, in his statement of evidence, noted that ‘I have determined the locality to comprise primarily that area from which the proposed bird-scaring devices can be potentially heard, and have extended the area to also include the nearest residences on those potentially affected properties’. Mr Wohlstadt identified eleven residences which, in his opinion, were likely to be impacted by noise from the proposed bird-scarers and defined his locality to include these. The Court agreed with the approach taken by the expert planning witnesses to defining the locality. It found the locality to be characterised by a diverse range of primary production activities and rural uses but accepted that the presence of existing residences close to the subject land was significant for the purposes of assessing this proposal.
7	The relevant Development Plan is that for the Mount Barker District Council as consolidated at 17 November 2005. The subject land is located wholly within the Rural Watershed Protection Zone as depicted on Maps MtB/3 and MtB/4 of that Development Plan.

9	The application proposed a number of conditions to limit the use of these devices as follows:
•	The operation of a maximum of two speakers at any one time – i.e. the operation of two speakers on one of the devices or the operation of one speaker on each of the devices
•	The bird-scaring devices to be used only between the hours of 7 a.m. and 8 p.m. from February to April (inclusive) - normally the period when grapes are vulnerable to damage by birds
•	The bird-scaring devices to be used only within a defined ‘allowable speaker placement area’, located a minimum of 300 metres from nearby dwellings.

10	The use of bird-scaring devices in the manner proposed does not in itself constitute development. However, approval is required in this case because of the proposal to delete a condition of an existing planning consent.
11	The principal issues in this matter relate to noise and the extent to which noise from bird-scarers is an unavoidable and acceptable consequence of the commercial production of grapes on the subject land. The respondents and Dr Trafford-Walker were primarily concerned at the potential for noise nuisance at their properties. Issues of noise nuisance and amenity also lay at the core of the Council’s reasons for refusing consent.
12	A number of Development Plan objectives and principles are of relevance to this matter, as follows:

13	Turning first to the evidence of the acoustics experts, Mr Turnbull indicated that he had been consulted by the appellants at the time of preparing their application to vary the condition relating to audible bird scaring devices and had recommended a number of measures to control the noise created by the proposed devices to an acceptable level. These included the operation of a maximum of two speakers at any one time; the restriction of the hours of operation to between 7 a.m. and 8 p.m. during the period from February to April, inclusive; and the use of the speakers only within a defined area of the subject land. This area was identified in Mr Turnbull’s statement of evidence and was also indicated in an exhibit received by the Court as ‘Allowable Speaker Placement Area Plan’ (Exhibit A1).
14	There are no approved noise standards which relate specifically to audible bird-scaring devices. A set of Draft Environment Noise Guidelines for Audible Bird Scarers was produced by the South Australian Environment Protection Authority in March 2003. These draft guidelines have no statutory force and are not part of the Development Plan. However, they provide some useful benchmarks and were referred to by both Mr Turnbull and Mr Jurevicius in the course of their evidence. The Court found that, while not necessarily decisive, they were helpful tools in assessing the noise impacts in this matter. On page 4 of the Draft Guidelines the following relevant criteria are set out:
•	Noise from audible bird scaring devices before 7 am or after 8 pm must not emit a noise level that exceeds 45 dB(A) at a location other than on the site on which the device is in operation. (This is a mandatory requirement in accordance with the provisions of the Environment Protection (Machine Noise) Policy 1994).
•	Electronic/speaker noise, generated as part of an integrated bird scaring strategy, at an L_Aeq of 57 dB(A) when adjusted in accordance with the Environment Protection (Industrial Noise) Policy 1994 is deemed to represent the maximum level of reasonable interference in an area or zone specifically intended for primary production.
•	Electronic/speaker noise, generated as part of an integrated bird scaring strategy, at an L_Aeq of 52dB(A) when adjusted in accordance with the Environment Protection (Industrial Noise) Policy 1994 is deemed to represent the maximum level of reasonable interference at the interface between an area or zone specifically intended for primary production and one for rural living or residential amenity (or similar).
15	The Draft Environment Noise Guidelines for Audible Bird Scarers indicate that penalties may be applied according to the character of the noise. A penalty of 5 dB(A) is suggested for each of the characteristics of tone, modulation (frequency or amplitude), and impulsiveness. In this case both Mr Turnbull and Mr Jurevicius agreed that a penalty of 5 dB(A) should be applied because of the modulation characteristic of the noise emitted by the proposed devices.
16	The principal difference between the evidence of Mr Turnbull and that of Mr Jurevicius followed from their respective opinions of the character of the locality. Mr Turnbull was of the opinion that this was best characterised as ‘an area or zone specifically intended for primary production’. This led him to adopt a maximum noise level of 57 dB(A) under the provisions of the guidelines described above. With the application of a 5 dB(A) penalty, this was reduced to a maximum permissible noise level of 52 dB(A). Mr Jurevicius, however, preferred the lower maximum noise level of 52 dB(A) appropriate to ‘the interface of an area or zone specifically intended for primary production and one for rural living or residential amenity (or similar)’ which, after the application of a 5 dB(A) penalty, became 47 dB(A).
17	Mr Turnbull used appropriate modelling techniques to predict the noise from the operation of the proposed bird-scaring devices. He calculated predicted noise levels in relation to two alternative scenarios. The first of these assumed a moderate wind blowing from the devices to six nearby residences, on a day of light cloud cover and with the two operational speakers close to the centre of the defined speaker placement area. The second scenario assumed that the two speakers were located on the boundary of the speaker placement area on an overcast day and with a strong wind from the speakers to the residences. Under the second (‘worst case’) scenario the highest predicted noise level at five of the residences was in the range 50 to 51 dB(A), with a lower predicted maximum of 45 dB(A) at the sixth. This led Mr Turnbull to conclude that predicted noise levels for the bird-scarers would achieve the 52 dB(A) criterion which he had established on the basis of the EPA’s Draft Environment Noise Guidelines for Audible Bird Scarers and his characterisation of the area.
18	Mr Jurevicius was in general agreement with Mr Turnbull’s modelling approach. His own prediction was for a maximum predicted noise level of 49 dB(A) at nearby residences and he concluded therefore that, under worst-case overcast conditions, the noise from the bird-scaring devices could exceed his criterion of 47 dB(A) by up to 2 dB(A). Mr Jurevicius noted that the Draft Environment Noise Guidelines for Audible Bird Scarers indicate that substantial noise level reductions can be achieved by rotating the device away from the receiver and they recommend, therefore, that primary producers should face audible bird scaring devices away from residential properties. He pointed out, however, that this would not be possible in this case because of the ‘omni-directional’ nature of the proposed devices.
19	Mr Rumsby, in his evidence, supported Mr Turnbull’s adoption of the 57 dB(A) level of maximum reasonable noise interference on the basis that the Rural Watershed Protection Zone is an area for primary production – i.e. ‘a zone primarily for low-intensity farming (including horticulture, agriculture, pastoral and forestry uses)’ (Zone Objective 1). However, Mr Wohlstadt and Mr Jurevicius argued that the actual character of the locality should carry more weight than the general zone provisions applying across the extensive Rural Watershed Protection Zone and that the presence of a number of nearby residences supported the adoption of a lower maximum permissible level of noise interference.
20	The Court preferred the approach of Mr Wohlstadt and Mr Jurevicius in this regard. The noise guidelines are most usefully applied to the land uses actually present in the locality rather than to the broad characterisation of the zone by the Development Plan. On this basis, while noting that there was only a slight difference between the conclusions of the acoustics experts, the Court preferred the evidence of Mr Jurevicius to the effect that the noise from the bird-scaring devices at residential receivers could slightly exceed the maximum permissible noise level as he had defined this.
21	Mr Eblen expressed concern at the potential for the noise from the audible bird-scaring devices to limit his ability to enjoy outdoor activities on his property – particularly at weekends when he and his wife would normally be at home and relaxing. He was particularly concerned at the intention to use the devices continuously, seven days a week between the hours of 7 a.m. and 8 p.m. during the months of February, March and April – months when he and his wife would be very likely to be outdoors in the early evening and at weekends.
22	Dr Trafford-Walker expressed similar concerns about the impact of noise from the bird-scaring devices and about the daily duration of the noise. It was his evidence that he had experienced audible bird-scaring devices being used on the Edwards’ property on previous occasions – devices such as those which are the subject of the present proposal and also shotguns. Dr Trafford-Walker suggested that the effects of the local topography were such as to channel noise down the valley from the Edwards’ property to his. Under some conditions he claimed that the noise of bird-scaring devices had been audible and annoying even when he was inside his house and with doors and windows closed. It was also his experience that audible bird-scarers could lead to additional noise nuisance by causing dogs in the vicinity to bark. We accept Dr Trafford-Walker's evidence.
23	Dr Trafford-Walker also expressed his concern at the likely difficulty in enforcing any conditions which might be attached to the use or placement of audible bird-scaring devices and claimed that there had been regular breaches of the conditions attached to the original consent granted to allow the use of the subject land for viticulture which had gone unpunished.
24	The proposal is based on complying with a minimum separation distance of 300 metres from a device to the nearest residential receiver. The plotting of this distance produced the eccentrically-shaped placement area depicted in Exhibit A1. The artificiality of this placement area was referred to during the hearing by Mr Wohlstadt who noted that, if adhered to, it would only allow the bird-scarers to provide protection to grapes on about two-thirds of the subject land. The difficulty of defining the placement area clearly and in an enduring way on the irregularly-shaped and undulating subject land was also mentioned.
25	Mr Wohlstadt also raised other issues relating to the ability of the proposed conditions of operation to be enforced. For example, the condition that only two of the four speakers on the two devices should be used at any one time might be breached unintentionally. There might be more risk of this, he suggested, if current arrangements for operating the vineyard – the close involvement of family members, the employment of permanent staff etc – were to change in future. The Court noted these concerns but was not persuaded that the proposed conditions were inherently unenforceable or that such concerns should influence unduly its primary task of assessing the appropriateness of the proposal on planning grounds.
26	Ms Davidson described her personal experience in operating audible bird-scarers in the Hahndorf area and noted that these devices were capable of causing annoyance at some considerable distance from the source under certain atmospheric conditions. She gave evidence that she has now discontinued the use of audible bird-scarers on her Hahndorf property, although she still uses them in another vineyard at Langhorne Creek which has very few dwellings nearby.
27	As an expert in viticulture Ms Davidson addressed the usefulness of bird-scarers. She was strongly of the view that netting offered a much more effective means of limiting bird-strike than bird-scarers and that the installation and management of nets need be no more expensive or labour-intensive than the installation and operation of bird-scarers. It was her opinion that the subject land had the potential to produce high-quality grapes which could be sold at a premium and that, in these circumstances, the investment in nets was warranted. No expert evidence seeking to refute Ms Davidson’s evidence was provided to the Court.

28	The relevant provisions of the Development Plan, listed earlier, clearly seek a balance between the avoidance of noise nuisance and loss of amenity, on one hand, and the legitimate interests of primary producers on the other.
29	An earlier decision of this Court (MacGillivray v District Council of Mt Barker [2001] SAERDC 11) found that the use of audible bird-scaring devices is not a necessary incident of the use of land for viticulture. In the present case, the subject land has been used for grape-growing for a number of years. It can not be argued, therefore, that the proposed use of bird-scarers is ‘essential’ as required by Zone Principle of Development Control 4. Ms Davidson’s evidence supported this conclusion.
30	However, such devices, while they may not be essential to successful viticulture, are clearly employed by many grape-growers and, as noted earlier, the South Australian Environment Protection Authority has produced Draft Environment Noise Guidelines for Audible Bird Scarers which seek to provide guidance on the use of audible bird-scarers without unreasonably impacting on the quality of life of nearby residents. The draft guidelines place considerable weight on the importance of having a ‘bird management plan’ in circumstances where ‘the operation of audible bird scaring devices might have an adverse impact on the surrounding community’. Such a plan ‘should outline the grower’s integrated bird scaring and management strategies’, and should set out the proposed use of a range of measures, such as visual scarers, audible scarers, noise and movement on the property, netting, habitat management and culling. It was indicated by Mrs Edwards that a number of alternative measures were used on the subject land, but the Court was not provided with evidence of the existence of an integrated bird management plan per se.
31	It may well be that audible bird-scarers could be used on the subject land as part of an appropriate bird management plan. However, we have concerns about the use of the specific devices which are the subject of this particular proposal and about the manner in which they are intended to be used. As noted earlier, they are ‘omni-directional’ devices and cannot, therefore, be made to comply with the recommendation of the Draft Guidelines that such devices be faced away from residential properties.
32	Of major concern to the Court is the sustained nature of the noise emitted by the proposed audible bird scaring devices. These devices emit an array of sounds which is virtually continuous, apart from a very brief pause before changing from one sound to another. There is an interval of 15 seconds at the end of each cycle before the complete cycle begins again. During the period of February, March and April, it is the appellants’ intention to operate these devices for 13 hours a day, 7 days a week.
33	On the balance of the evidence, the operation of these devices in this way and in this locality is likely to impact significantly and adversely on the amenity of local residents. It does not therefore meet the provisions of the Development Plan which relate to the noise and amenity impacts of development, in particular as these are set out in Council-wide Principle of Development Control 10 and Principle of Development Control 14 for the Rural Watershed Protection Zone, both of which require that "Development should not detrimentally affect the amenity of its locality or cause nuisance to the community (a) by the emission of noise..."
34	The decision of the Court is that this appeal be dismissed and the decision of the Council upheld.