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					DL Triffett v West Coast Council [2006] TASRMPAT 69 (4 May 2006)
File No: 12/06 P Esplanade, Strahan - Sea plane operation
BETWEEN DL Triffett Appellants AND West Coast Council Respondents

J 69/2006

This was an appeal against the grant of a conditional permit for a sea plane operation at the Esplanade, Strahan. The appeal was heard at Zeehan on 6 April 2006

The appellant appeared in person. P Gul appeared on behalf of the West Coast Council.

DECISION
1. Application was made to the West Coast Council for a permit for the establishment of a sea plane operation based on a pontoon adjacent to the Strahan wharf, adjacent to the Esplanade at Strahan. Representations were made to Council, in essence opposing the grant of the permit on grounds of safety and noise emissions. Council granted a permit, relevantly including the conditions appealed against; 4. “In accordance with the Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004, the development is to operate between the following hours: Monday – Friday; 7.00 am – 8.00 pm (or official last light, whichever is earliest), Saturday 8.00 am – 8.00 pm (or official last light, whichever is earliest), Sunday, good Friday, Christmas; 10.00 am – 8.00 pm (or official last light, whichever is earliest). The applicant is to confirm that the quantity of fuel being stored will not require a Dangerous Goods Licence from Workplace Safety Tasmania.”

2.

3.

(a)

(b)

(c)

21.

4.

The appeal lodged against the above conditions was resolved with respect to condition 21, and a consent order will be made with respect to that condition. With respect to condition 4, the appeal was on the basis that the requirement for a 10.00 am Sunday start would place the applicant at a commercial disadvantage as other sea plane and boat operators were not subjected to the same conditions. The site lies within the area controlled by the West Coast Planning Scheme 2000. Under that scheme it lies within the Natural Resources Zone, which includes all of the water within Macquarie harbour. The use lies within the Business and Civic use class, which is a discretionary use in the above zone. The Natural Resources zone provisions have little in the way of present relevance, although they make the observation that the values of the zone are related to activities dependant upon the water. The adjacent urban zone objectives include tourism, and orderly wharf development, and it was uncontested and the Tribunal finds, that the proposed development is consistent with those objectives. Clause 4.4.1 of the scheme sets out the matters to be considered upon determining an application for approval, and the substantially relevant matter is the potential for adverse effects from the noise of the sea planes taking off. The evidence on behalf of Council was that condition 4 had been set by reference to the above regulations. For various kinds of noisy machinery, they provide for Sunday, Good Friday and Christmas day, that the allowable hours of operation are between 10.00 am and 6.00 pm. In the absence of any scientific or precise measurements of the noise emitted by the sea planes, those regulations were adopted by Council as a guide. That resulted in the Sunday, Good Friday and Christmas day hours. The appeal against condition 4 was only pursued with respect to the Sunday, Good Friday and Christmas day hours, and then only with respect to the 10.00 am start. What was sought by the appellant was that the time for starting be varied to 9.00 am. The principal argument on behalf of the appellant was that other operators of sea plane, boat and excursion services, were free to start before 10.00 am; with the other sea plane operator commencing at 9.00 am. The evidence was that the other sea plane operators did not have a permit, but relied upon existing use rights accruing from operations prior to the coming into operation of the current Planning Scheme. There was no objective measurement of the noise level emitted by the sea planes, or received at the nearest premises on shore. The evidence on behalf of Council was that it was intended that such measurements were to be taken, following upon complaints by residents and others as to the levels of noise emitted by the sea planes taking off. The evidence on behalf of Council was that the planning officer’s assessment was that the noise of two sea plane services operating rather than one would not be perceived as a problem, so much as the fact of another sea plane taking off prior to 10.00am. There was no evidence to the contrary and the Tribunal accordingly accepts that assessment.

5.

6.

7.

8.

9.

10.

11.

12.

13.

File No: 12/06 P

Page 2

J69/2006

14.

It is important that the Tribunal’s decision does not accord a lawful status to the production of noise, which may be in breach of any of the relevant environmental statutes or regulations. Specifically, the Tribunal should not make lawful, the production of noise which would otherwise constitute an environmental nuisance under the Environmental Management and Pollution Control Act 1994. That position can be safeguarded by appropriate specification in the permit. Upon the evidence there is nothing, apart from the possibility of the emission of excessive noise, about the proposed development and use, which is in conflict with the provisions of the Planning Scheme. Condition 4 appealed against places the appellant in a different position relative to his competitors, which is unfair. The issue of noise from the sea planes is being investigated by Council. It might reasonably be assumed that if there is excessive noise under any relevant statute or regulation, appropriate action would be taken. The grant of a permit with an appropriately modified condition 4, would allow commercial parity between the operators, without giving any entitlement to emit noise which offends any statutory regulatory system. The order of the Tribunal is that the permit appealed against is varied as follows. Condition 4(c) is amended to read: “(c) Sunday, good Friday, Christmas; 9.00 am – 8.00pm (or official last light, whichever is earliest).”

15.

16. 17.

18.

the following additional condition is inserted: “4A This permit does not authorise or make lawful the emission of noise in contravention of any provision of the Environmental Management and Pollution Control Act 1994, or any regulations thereunder.”

19.

Condition 21 is amended to read: “21. All fuel is to be stored in accordance with the requirements of Workplace Safety Tasmania.”

20.

The West Coast Council is directed to issue an amended permit incorporating the above amendments. The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within the next fourteen days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs. In the absence of any such application for an order for costs the order of the Tribunal is that each party bear its own costs. Dated 4 May 2006 DR Howlett Member KAM Pitt QC Chairman

21.

22.

File No: 12/06 P

Page 3

J69/2006


				
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