Ardill Payne & Partners v Byron Shire Council

Land and Environment Court (NSW)|2019-02-06

Judgment

COMMISSIONER: This appeal, within Class 1 of the Court's jurisdiction, is made under the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Byron Shire Council (Council) of Development Application 10.2017.602.1 (DA).

Site and Locality

I rely, generally, on Council's Statement of Facts and Contentions for the following descriptive material. The site is described as Lot 3 in DP 252483, with the address 541 Friday Hut Road, Possum Creek. The site has an irregular configuration with a total area of 8.861 hectares. Opossum Creek adjoins the north-western boundary of the site and Willowvale Creek passes generally in an east-west direction through the site. The level of the site includes mild and moderate slopes with small areas of relatively level land. Parts of the site are covered by native vegetation which is mapped as a bush fire hazard. There are a number of freestanding buildings on the site.

Proposal

According to the DA form, with DA10.2017.602.1, consent was originally sought for the following: "Convert existing shed (including Alterations and Additions) to create Dwelling House, in-ground Swimming Pool, Change of use of Shed to Dual Occupancy, Change of use of Studio to Holiday Cabin, Change of use of House to Holiday Cabin and Construction of four (4) new Holiday Cabins."
The proposal is partly concerned with gaining approval for future building works but also partly concerned with approval for change of use of existing buildings. As put by the applicant (Ex 1 - Statement of Facts and Contentions in Reply): "…other than consent for works to complete the Stone Cottage, the proposal primarily seeks consent for a change of use for the majority of the buildings on the property. A consent or approval is in existence for most of the buildings and the Applicant seeks to keep those buildings and put them to a constructive use in accordance with planning law."
As I understand it, the essence of the application at the time of the hearing was as follows:

Approval of change of use of two existing buildings (Building 1 and Building 2 - nearest the entrance to the site off Friday Hut Road) to two holiday cabins.
Approval of a dual occupancy development which would comprise Building 5 and Building 8. That is to say, the dwelling comprising Building 8 (itself linked in dual occupancy sense with Building 5) would constitute two distinct but connected "wings" (the barn wing which is constructed and the stone cottage wing which is partially constructed). The Building 8 development concept would also include some associated works including one new pool on a sideslope near the barn wing, and a separate "reflection pool" between the barn wing and the stone cottage wing.

Hearing

The hearing commenced with an on-site view. A number of oral submissions were made by objectors. Concerns raised included: overdevelopment in particular mindful of the history of the changes on the site; and generally on the proposal's impacts and inconsistency with the applicable planning policies. These matters are considered in the analysis of issues. During the view Mr Young (for the applicant) and Mr Seton (for Council) explained the proposal in the context of existing development on site and the surrounds.

Statutory framework

Most of the site, and that of principal concern in this judgement, is zoned RU2 Rural Landscape under Byron Local Environmental Plan 2014 (LEP). A small area of the site is noted as a "deferred matter" in LEP terms, and as such remains zoned 1(a) General Rural Zone under Byron Local Environmental Plan 1988. However, this area does not come into detailed consideration in the judgement.
Byron Development Control Plan 2014 (DCP) is relevant to the assessment.

Issues

The contentions in this matter, as raised by Council, narrowed as the hearing approached as a consequence of: (1) supplementary reports (particularly in regard to building and/or structural considerations, bushfire and ecology); and (2) amending plans (which in particular made clearer what future building works might be included in any consent). This second point was concerned with the need to distinguish existing building works from that proposed, given that there is no capacity to give consent for completed building works.
In closing submissions, Mr Seton framed the central issues for consideration here, as threefold. The first is concerned with jurisdiction and characterisation of the use. The second is concerned with the contravention of a development standard and thus also is jurisdictional. The third is concerned with the overall merits of the proposal. I find this a useful breakdown and will work through these issues, although somewhat out of that order.

Unlawful use due to characterisation

Part of the proposal is described by the applicant as a change of use of two existing buildings to "holiday cabins". In the documentation there is some immaterial exchange between this term and the term "tourist cabins". Neither term is defined in the LEP (which of the two terms is selected for use is not material but in this judgement I will use the term holiday cabins). What is important is the need for me to characterise this aspect of the development in the terms of the LEP to determine its permissibility.
Mr Seton argued that the holiday cabins aspect of the proposal (a change of use application) was properly characterised as "hotel or motel accommodation", or "serviced apartments" under the LEP, each of which was a prohibited use. Mr Young argued this aspect of the proposal was properly characterised as "tourist and visitor accommodation" under the LEP, a nominated permissible use.
The dictionary defines each use as follows: tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following: (a) backpackers' accommodation, (b) bed and breakfast accommodation, (c) farm stay accommodation, (d) hotel or motel accommodation, (e) serviced apartments, but does not include: (f) camping grounds, or (g) caravan parks, or (h) eco-tourist facilities. hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that: (a) comprises rooms or self-contained suites, and (b) may provide meals to guests or the general public and facilities for the parking of guests' vehicles, but does not include backpackers' accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation. serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents.
Mr Seton's view is that, factually, the development must be characterised as either "hotel or motel accommodation" or "serviced apartments". He referred to cl 2.3(3)(b) of the LEP which provides as follows: (3) In the Land Use Table at the end of this Part: … (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
Mr Seton also referred to Samcourt Pty Ltd v Inner West Council [2018] NSWLEC 1442, where the question of characterisation was considered by Gray C. I understood, Mr Seton to be arguing that Gray C's conclusion that "specific provisions nominating these permissible uses prevail over general provisions" at [43] might in a sense provide an impetus for me to look to what Mr Seton referenced (as per Gray C in Samcourt) as the "sub-class" term rather than the "class" term, when looking for the correct classification of the purpose of the development.
There are two segments to the question of characterisation. The first is in regard to statutory construction. The second is in regard to the particulars of the characterisation in this case.
In regard to the question of statutory construction, the approach taken up with the Standard Instrument (Local Environmental Plans) Order 2006 was somewhat different to older style instruments, in that it more commonly than previously uses these "class" or, as they are sometimes termed, "group" terms as a means of grouping related types of land use to reduce the need to individually nominate quite so many individual terms in land use tables. This seems to be aimed at allowing a more precise definition of, and thus distinction between, land uses while keeping land use tables in LEPs briefer (at least than they might otherwise be).
The provisions in cl 2.3(3)(b) of the LEP, nor the authorities provided, suggest to me that I need to choose what Mr Seton calls a sub-class term over a class term. A reading of cl 2.3(3)(b) simply prevents an otherwise ambiguity which might be found if the Dictionary section of the LEP were read in competition with the direct provisions of the land use tables. For example here, there may be a clear intention in this case to have "hotel or motel accommodation" as a prohibited use in the zone. However, without cl 2.3(3)(b) of the LEP, the setting might be seen as ambiguous given that "tourist and visitor accommodation" was clearly a permissible use and "hotel or motel accommodation" a sub-class of that use via the definitions in the Dictionary.
In regard to Samcourt and what "level" of characterisation might be favoured, I take the view that were there a more apposite characterisation available from the sub-class terms then that level should apply. But that if there is no more favourable characterisation available, then there is no forcing into a sub-class term for the purposes of characterisation.
That is to say, the class term "tourist and visitor accommodation", for me, is properly playing two functions in LEP land use tables. It is both: (1) a land use term in its own right, and (2) helping manage the length of land use tables. The fact that the particular term by way of definition "includes" various other sub-classes of tourist and visitor accommodation does not force me to choose one of them for the purposes of assigning the correct classification. If I use the phraseology in Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147 [28], and reference a "genus-species relationship", it would be to say that it is not necessary to assume that all the species of the genus are nominated in the land use definitions of the LEP.
When I turn to the appropriate characterisation here, I note the general approach to characterisation for planning purposes is set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114. Useful for me here is the following: "36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. … 45 The characterisation of the purpose of development must also be done in a common sense and practical way..."
While it is sometimes appropriate to go to the specifics in characterisation (eg the "servicing" aspect of serviced apartments is critical in distinguishing it from other forms of accommodation in some urban zones), it is not necessary or appropriate in this case to go beyond Mr Young's argument that this aspect of the development is better characterised as "tourist and visitor accommodation" and as "a building or place that provides temporary or short-term accommodation on a commercial basis". I am not convinced, factually, that these intended "cabins" meet the "hotel or motel accommodation" definition. I am not convinced that they contain what would be my interpretation of the phrase "rooms or self-contained suites" as included in the definition. Equally I cannot consider this aspect of the development as a "serviced apartment" according to the definition, as for me the "regularly serviced or cleaned by the owner or manager of the building" aspect implies a regularity (eg every day or every few days) which rings true for serviced apartments but does not seem a "necessary" feature of this particular use (while I agree with Mr Seton that such particulars are not available, cleaning might reasonably be thought to occur at the end of the stay, something different to "regularly"). It is "sufficient" to characterise the purpose of this aspect of the development as "tourist and visitor accommodation", a permissible use.

Merits of the development

I now move to consider the overall merits of the proposal. While it is the third of Mr Seton's nominated central issues, it allows a more rounded consideration of the proposal and why, overall, I see approval as inappropriate.
The Council's contentions reference two inter-related areas of particular relevance to my determination: (1) inconsistency with the zone objectives, and (2) adverse impact on the scenic amenity and character of the rural environment. The contention in regard to public interest and precedence also has pertinence.
The zone objectives are as follows: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality. • To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.
The Council contention in regard to impacts on "scenic amenity and character of the rural environment" called up references in the LEP, including: (1) the above zone objectives (especially the second, fourth and fifth of the zone objectives listed above) and (2) dual occupancy provisions (cl 4.2D). Reference is also made to the DCP which I will relevantly particularise below. I will first consider the dual occupancy aspect then the holiday cabins aspect.

Dual occupancy component

Mr Mead (Council's planning expert) evidenced that both LEP and DCP provisions suggest restraints on dual occupancy development in settings such as this which are not accommodated with the proposal.
Clause 4.2D(2) of the LEP is concerned with dual occupancy development in the RU2 zone and is reproduced in full below. 4.2D Erection of dual occupancies (detached) and secondary dwellings in Zones RU1 and RU2 (1) The objectives of this clause are as follows: (a) to provide alternative accommodation for rural families and workers, (b) to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land, (c) to set out consent considerations for development of dual occupancies (detached) and secondary dwellings to address matters such as access, siting, land suitability and potential impacts. (2) Development consent must not be granted to development for the purpose of a dual occupancy (detached) or secondary dwelling on land in Zone RU1 Primary Production or Zone RU2 Rural Landscape unless the consent authority is satisfied that: (a) the development will not impair the use of the land for agriculture or rural industries, and (b) each dwelling will use the same vehicular access to and from a public road, and (c) any dwellings will be situated within 100 metres of each other, and (d) the land is physically suitable for the development, and (e) the land is capable of accommodating the on-site disposal and management of sewage for the development, and (f) the development will not have an adverse impact on the scenic amenity or character of the rural environment.
In relation to the broader contentions on scenic amenity and character of the rural environment, Mr Mead referred to the DCP, noting that it does not set size constraints on dual occupancy development but references the second objective at Section D2.5.2 of the DCP (concerned with character and siting of dual occupancy development) as of relevance: "To minimise the footprint of dual occupancy and secondary dwelling development through location of dwellings and the use of shared services and common areas."
He then describes the proposal as follows (Ex E pars 5.16 - 5.18): "The proposal provides for two substantial dwellings that comprise the dual occupancy. The two dwellings do not share services or common areas. Building 5 has a footprint of 149.8sqm with 392.7sqm of decks and verandahs surrounding the dwelling. Building 8 has GFA of 783.06sqm (and a much larger footprint when the carport, outdoor deck areas and pizza over pergola are included). The design and siting of the dual occupancy development does not "minimise the footprint of dual occupancy development". In my opinion, while the distance between Buildings 5 and 8 is acceptable in general terms, it is the size of Building 8 that means that the dwelling extends well past a 100m distance. In my opinion the form of development on the site, being over 1,300sqm of footprint for the detached dual occupancy, is inconsistent with the objectives for the zone as discussed in the context of Contention 4. It also results in a scale of development that is not compatible with the rural character of the site."
In regard to the third paragraph in the above quote, Mr Mead indicated in his oral evidence that at the point of writing the above, he had been of the view that the separation distance of the two dwellings met the 100m standard contained in cl 4.2D(2) of the LEP, based on the applicant's then documentation. The applicant's position changed on this point during the hearing.
The experts agreed that there would need to be a condition imposed to require use of the two wings as a dual occupancy development (Ex E): "2.5 The experts agree that whilst the application provides for a greater degree of connection, the size and layout of each "wing" of the building would be capable of being used as separate dwellings, noting that they have separate entrances, wet areas and that the eastern wing contains a "bar" that has a configuration that resembles a kitchen. There are two separate parking areas and two separate pools (noting that one of these is annotated as "reflection pool"). The wings are 274sqm and 320sqm respectively. DR says that Perspective 2 provides clarification that the reflection pool is a water feature. 2.6 The planners agree that, if the application were approved, a condition of consent would need to be imposed to require use of this building as a single dwelling and the bar area should not be fitted with any cooking facilities."
In his written evidence at Exhibit E, Mr Roberts, planning expert for the applicant, comments as follows in regard to the zone objectives: "The proposed additions to buildings and the change of use of existing buildings have minimal to no impact on the scenic quality of the locality due to the extensive vegetation the currently exists which effectively screens all structures from public space and neighbouring properties."
In the written request, seeking to justify the contravention of the development standard at cl 4.2D of the LEP, prepared by Mr Roberts, he also indicates that the proposal is consistent with the objectives of the zone (I take it as a typographical error that reference is made to the RU1 zone, rather than RU2 zone in the written request, p6). However, no further direct arguments of note on that particular point are provided there.
When considering the broader questions of scenic amenity and character of the rural environment, Mr Roberts expresses the view that: "The proposed additions (associated with the dual occupancy) are not visible from public space whether that is defined as public roads or public open space and have no visual impact in this regard. Further, the proposed additions are not visible from any adjoining dwellings and it is my opinion that the proposed additions to building 8 have no adverse visual impact on the rural character of the locality."
While Mr Roberts did not comment on the objectives of Section D2.5.2 of the DCP he did opine as follows: "The proposed development is in full compliance with the 4 listed performance criteria and the 2 applicable prescriptive measures (of the DCP)."
In his oral evidence Mr Roberts emphasised that the site topography was a key factor causing the separation distance between the two dwellings in the dual occupancy. He pointed to the steep grade below Building 8 and that a compliant building would result in significant cut and fill.

Findings in regard to merits of the dual occupancy development

In the broad I prefer the evidence of Mr Mead in regard to the dual occupancy aspect of the development. An important point here is that I am with Mr Mead, rather than Mr Roberts, on whether an evaluation of "rural landscape character" (from LEP RU2 zone objectives) or "scenic amenity or character of the rural environment" (from LEP dual occupancy provisions) should be limited to points external to a site.
I would agree that views from areas of high sensitivity and high public exposure have considerable weight when considering these planning objectives but I do not agree with Mr Roberts' opinion that given the site road boundaries are generally screened with vegetation, and his statement that "the proposed additions are not visible from any adjoining dwellings", that in this case the scenic amenity and rural character aims are achieved or can be set aside. The extreme of this argument is that, all other things being equal, "anything goes" in regard to the question of scenic amenity or the character of rural land beyond screened boundaries.
I take Mr Mead's point to be that these planning provisions (précised at [40]) are concerned with the actual character of the land, with its appearance as one aspect of this character; and then considerations from outside the site boundaries one aspect of appearance, and from within the site another. The point is well framed in the first DCP objective at cl D2.2.3 entitled "Character and Visual Impact": "To retain and enhance the unique character of Byron Shire and its distinctive landscapes, ecology, rural and natural areas."
This can be read as distinguishing (while acknowledging the connections between) the terms "character" and "visual impact".
I do not find the proposal consistent with the performance criteria in cl D2.5.2 of the DCP which, on the topic of site responsiveness, suggests the idea of siting dual occupancies in a clustered arrangement ("with other farm buildings, garages, car ports or farm sheds"); which is in alignment with the higher order objective of this section of the DCP of minimising the footprint of dual occupancy development.
It is my conclusion that the addition of a further dwelling to the site, as proposed, through approval of the dual occupancy component of the development, would be inconsistent with the LEP objectives in regard to the RU2 zone. The proposal would not "maintain the rural landscape character of the land", or "protect significant scenic landscapes and minimise impacts on the scenic quality of the locality". This is demonstrated numerically through its non-compliance with the requirement for dwellings to be situated within 100 metres of each other under cl 4.2D of the LEP. Having regard to the DCP the proposed dual occupancy, according to uncontested evidence from Mr Mead would compromise an area in the order of 783m2 (and considerably larger were outside hard stand areas included), and as such would not "minimise the footprint of dual occupancy (development)" (DCP cl D2.5.2).

Tourist accommodation component

This aspect of the proposal would allow the use of Buildings 1 and 2 as two separate holiday cabins.
Mr Mead believes the use of these buildings for tourist accommodation is inconsistent with the planning intentions, in that it is not of the scale or form intended by the LEP or DCP. His position can be summarised as follows: 1. The pertinent zone objective is "(to) enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality". The proposal is not aligned with this objective as: (1) it is not associated with primary production and environmental conservation, and (2) it is not small-scale (for reasons outlined below). 2. The pertinent DCP provisions include those at cl D3.3.4 Rural Tourist Accommodation and Farm Stay Accommodation. The proposal does not meet the DCP definition of "rural tourist accommodation" which requires a clustering around the primary dwelling 3. In regard to "scale", the concern is in regard to the size of the two buildings which exceed the DCP control which provides structures should be "not more than 60sqm gross floor area (each)" 4. The proposal is inconsistent with cl D3.2.3, Performance Criteria 3 of the DCP which requires "all development to which this Chapter applies in Rural Zones must be low scale consistent with the relevant Aims, Guiding Principles, Best Practice Guidelines and Performance Standards contained in the Byron Rural Settlement Strategy 1998". 5. Non-compliances with particular provisions of Byron Rural Settlement Strategy are cited: minimum site area of 20ha, access for people with disability, "planting 900 native plants per cabin".
Mr Roberts, arguing the alternative view, references the density provisions at cl D3.3.4, Prescriptive Measure 1 which he believes have been established to ensure that such uses remain small scale and consistent with the desired future character of the rural locality. Mr Roberts submits that: "The density provisions in this instance would permit up to a maximum of 6.8 or 6 bedrooms to be used for rural tourist accommodation with this application proposing a total of 3 bedrooms which is half permitted by DCP 2014. Having regard to the above, it is my opinion that the proposal is small-scale rural tourism and is consistent with the zone objectives in this regard. 6 x 1 bedroom rural tourist accommodation structures would permit up to 360m2 of tourist related GFA in 6 separate structures which is permitted and prescribed by Clause D3.2.3 (sic), Prescriptive Measure 1 of DCP 2014. These 6 permitted structures would have a substantially larger scale and appearance then what is sought by the change of use of the two existing buildings which have no impact on the rural character of the locality. The proposed additions to buildings and the change of use of existing buildings have minimal to no impact on the scenic quality of the locality due to the extensive vegetation the currently exists which effectively screens all structures from public space and neighbouring properties."
Mr Roberts indicated in evidence that the Byron Rural Settlement Strategy (BRRS): "…has been repealed and replaced with the Byron Rural Land Use Strategy", and as "no savings provisions apply, as such the controls contained within the BRRS are no longer being applicable to this application."

Byron Rural Settlement Strategy

Firstly in regard to the DCP and the question of whether the Byron Rural Settlement Strategy has been "replaced" by the Byron Rural Land Use Strategy, as the latter document claims to do at its p5 (Ex D, Tab 22). The question is relevant here insofar as the DCP still references the Byron Rural Settlement Strategy (quite particularly it might be said in Chapter D2 - Residential Accommodation and Ancillary Development in Rural Zones and Chapter D3 Tourist Accommodation).
I find Mr Seton's submissions to be correct where he argued that a Council policy document like the Byron Rural Land Use Strategy has no power to alter a statutorily made DCP. Mr Seton pointed to the fact that there have been amendments to the DCP subsequent to the Byron Rural Land Use Strategy, which had not modified the DCP content in that regard. For me the DCP's provisions calling up the Byron Rural Settlement Strategy remain live and pertinent, albeit subject to the provisions of s 4.15(3) of the EPA Act.

Balancing the policy provisions

The policy provisions are going two ways here. I acknowledge Mr Roberts point outlining the DCP's suggestions of a particular yield (in bedrooms) for the site, which is not exceeded with this proposal. But the buildings proposed now as holiday cabins are considerably larger than the policy provisions. They present more as dwellings than 60m2 cabins. Further it is clear in the LEP, DCP including via its reference to the Byron Rural Settlement Strategy, that there is a concern to ensure tourist accommodation in rural zones is just that (ie not just more dwellings for permanent or semi-permanent occupants). The objective seems to be to promote visitor appreciation of the distinctive setting and, through the injection of tourism-related spending, further diversify the economic base of the area.
The size of the cabins are clearly of concern and seem to me inconsistent with the "small-scale" reference in both LEP and DCP (and the Byron Rural Settlement Strategy). On the other hand it is recognised that the buildings exist and, as argued by Mr Young in closing (written) submissions: "… it is a feature of the development that existing buildings on the property which might otherwise be required to be demolished - are sought to be "repurposed"."
In consideration of the above factors, on balance it is my view that the specificity of the zone objectives suggests determining weight go against this aspect of the proposal. The affirmation, or opening, for this aspect of the proposal, in terms of the RU2 Rural Landscape zone objectives, comes from the fourth of these objectives. But for me the proposal does not align with the objective of enabling "small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality". These cabins cannot be defined as having the required association, which pushes me to favour the expert evidence of Mr Mead.

Factoring in the contentions relating to public interest and precedent

I here include consideration of Council's contentions relating to public interest and precedent to assist in coming to findings on the tourist accommodation component of the development. The particular point raised by Council is that the proposal is not in the public interest having regard to the contentions raised by Council and the nature and number of submissions received in relation to the proposed development. Exhibit 6 included written submissions objecting to the proposal although these submissions were prepared prior to final modifications to the proposal and the completion of the body of documentation available at the hearing (especially in regard to structural, bushfire and ecological concerns). Oral submissions during the site view immediately prior to the hearing did raise concern about overdevelopment and the history of the changes on the site; and generally on the proposal's alignment with the applicable planning policies.
Mr Roberts written evidence noted the development as "permissible in the RU2 zone, (and) consistent with the zone objectives. In turn he saw approval of the development to be within the public interest.
Mr Mead's written evidence included the following: "The built form that has been established on the site is not consistent with the key planning controls or objectives, particularly as they relate to tourist accommodation and dual occupancy development. … In my opinion the proposal sets a poor precedent for dual occupancy development and tourist accommodation. … The proposal represents an ad hoc approach to achieving both dual occupancy and tourist accommodation on the site, retrofitting buildings that are not purpose built or located in a manner envisaged by the relevant planning controls."
In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 [28], Lloyd J gave guidance in relation to the question of precedent, and where it may properly be taken into consideration. The tests might be thought of as twofold. The first test goes to whether the proposal is objectionable of itself (or as put by Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 "not unobjectionable"). It seems to me that the tourist accommodation proposal has "unobjectionable" components, including a lack of visual impact, apparent structural integrity (Ex G) and at least possibilities of improvements in ecological outcomes with the intended works in bushlands and associated offsets, related to bushfire and biodiversity management (although these expert reports were not tendered) . But as a planning proposition, the approval of them as tourist accommodation has significant objectionable components due to their large size, their lack of responsiveness to the zone objectives and other development controls mentioned by Mr Mead.
The second test in Goldin & Anor is concerned with "the probability that there will be further applications of a like kind". It seems to me that the policy provisions are attempting to work to achieve the zone objectives in the face of an understandable popular attraction to optimise individual lifestyle blocks in the Byron area, including for longer term accommodation - as evidenced on this site.
In turn I would also find that approval of the use of Buildings 1 and 2 as holiday cabins should not be allowed due to their large size and their lack of responsiveness to other planning provisions nominated above; and as it would create an undesirable precedent.
I would like to comment briefly on Mr Young's submissions that Buildings 1 and 2 "might otherwise be required to be demolished" (should there be no approval forthcoming for the use change). I would note I have been mindful of the Court's duties here in this Class 1 appeal in matters involving irregularities of this kind, having regard to both Ireland v Cessnock City Council [1999] NSWLEC 250, and, in particular, Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126 [42], and my evaluative approach here has been centred on the consideration of proposed development "on a conventional planning assessment against the relevant planning instruments". Any possible future enforcement action would be subject to its own processes and deliberations.

Development standard non-compliance in regard to proposed dual occupancy

Clause 4.2D(2) of the LEP is reproduced at [30].
Clause 4.2D(2)(c) would be read to require a consent authority to be satisfied that any dwellings (within a dual occupancy development) "be situated within 100m of each other", otherwise consent must not be granted. Council contends, and during the course of the hearing the applicant came to agree, that the proposed detached dual occupancy development involves two dwellings that would be situated further than 100m from one another.
While there was some disagreement from Mr Seton through his examination of the case law, here, in accordance with the submissions of Mr Young I accept that the control at 4.2D(2)(c) is a development standard.
Clause 4.6 of the LEP includes pre-requisites, compliance with which can allow a development to be approved notwithstanding contravention of such a standard. There are a number of "pre-requisites" but compliance with one alone means the provisions are not enlivened. In this case I will only consider cl 4.6(4)(a)(ii) which provides that: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: … (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
I have found [45] that in this instance that the proposal is not consistent with the objectives of the RU2 zone, as such the power to consent to a development that contravenes cl 4.2D(2)(c) of the LEP is not enlivened.

Conclusion

For the reasons stated, the Court orders that: 1. The appeal is dismissed. 2. Development consent to DA 10.2017.602.1 is refused. 3. The exhibits are returned except Exhibit 4.

P Walsh Commissioner of the Court

Amendments 14 August 2019 - Correction to typographical errors at [50]-[51] with respect to references to the "Byron Rural Land Use Strategy" and "Byron Rural Settlement Strategy". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 14 August 2019

(2007) 151 LGERA 114

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