Camberlee Investments Pty Ltd v Shoalhaven City Council

Land and Environment Court (NSW)|2017-03-22

Judgment

This appeal is brought by Camberlee Investments Pty Ltd ('the Applicant') under s 97 of the Environmental Planning and Assessment Act 1979 ('the EP&A Act') against a decision by the Joint Regional Planning Panel (Southern Region) ('JRPP') on 12 November 2015, as notified by the Shoalhaven City Council ('the Council') on 26 November 2015, to refuse development consent for a development located at 801 Kangaroo Valley Road, Bellawongarah. The property is described as Lot 13 DP 707955 and is known as "Rockfield Park" ('the Site").
The Applicant contends that its proposal is an eco-tourist facility, which is permitted with consent. The Council contends that the proposal does not meet the necessary preconditions for approval of an eco-tourist facility, with the result that development consent must not be granted. In addition, the Council contends that there are various merit reasons which should result in development consent being refused.

The Proposal and the Site

The development application ('DA') before the Court seeks approval for the construction of, what the Applicant has described as, an eco-tourist facility and associated infrastructure, in two stages. The first stage is the demolition and site preparation stage (earthworks), while stage two relates to the construction of building works above ground.
The key elements of the DA are the construction of 42 units containing a total of 42 bedrooms accommodating a maximum of 84 guests on any one occasion. Each unit will be single-level, and contain a living area, bathroom and private balcony.
The central facilities building, comprising 3 levels, will contain a basement level (waste room, service lift and storage/staff facilities); ground level (restaurant of 104 person capacity); two bar areas (the lounge/bar area will accommodate 72 seated guests); reception; guest lift; amenities area; kitchen; luggage store; office space; board room; lounge area and deck area; and a first floor area containing a library/lounge, boardroom guest lift and amenities area.
In addition, the proposal includes a gym and pool facilities building; wildlife centre, gallery and refuge building (to be used as a bushfire refuge if required); day spa facility; farm shed and manager's studio; new dwelling house; three new creek crossings; onsite sewerage treatment plant; car parking for 88 vehicles, and associated works, including access/manoeuvring areas, drainage, landscaping and associated infrastructure works.
As approvals are required pursuant to the Rural Fires Act 1997 and the Water Management Act 1997, the development is integrated development as prescribed by s 91 of the EP&A Act. It may be referred to the Joint Regional Planning Panel for determination having regard to Schedule 4A of the EP&A Act.

The Site and the Locality

The Site is 69.55 hectares in size, with an irregular shape. Its northern boundary to Kangaroo Valley Road is 374 metres, its western boundary is 998 metres, and its southern boundary is 555 metres while its widest point is to the east at approximately 1,253 metres.
An aerial photograph of the site (outlined in red) is produced below (extracted from Exhibit 7):
Situated in the Shoalhaven Local Government Area, the locality is predominantly rural in character. The Site is surrounded by small farming allotments and the Black Ash Nature Reserve (part of the Cambewarra Range Nature Reserve) to the west. The township of Berry lies approximately 6.3 km to the east, and Kangaroo Valley approximately 8 km to the west of the Site.
More particularly, to the Site's north, in addition to Kangaroo Valley Road, there are two parcels of privately owned land; to the west, the Black Ash Nature Reserve (zoned E1) and two parcels of privately owned land; to its south, Tourist Road and one parcel of privately owned land; and to the east, Tourist Road and two parcels of privately owned land. In the North West, which contains the area zoned E2, there is Illawarra Subtropical Rainforest, an identified Endangered Ecological Community under the Threatened Species Conservation Act 1995.
Provided below is an aerial photograph depicting the zoning of the Site and adjoining land pursuant to SLEP 2014 (reproduced from Exhibit 7):
The Site's primary access point is via Kangaroo Valley Road with a secondary access via Tourist Road. It is serviced by electrical infrastructure, but not reticulated water or sewerage. Part of the Site is identified as "bushfire prone" and four creeks cross it.
Currently, the Site is used for low scale livestock farming of dorper sheep, and accommodates a two storey dwelling, maintenance/storage shed, dam, stockyards and internal fencing. It has cleared areas as well as patches of natural remnant vegetation.

Relevant Statutory Controls

The instruments which are relevant to the proposed development are:

Environmental Planning and Assessment Act 1979;
Environmental Planning and Assessment Regulation 2000;
State Environmental Protection Policy (Sydney Drinking Water Catchment) 2011 ('SEPP 2011');
State Environmental Protection Policy No 55 - Remediation of Land
State Environmental Protection Policy (Building Sustainability Index: BASIX) 2004;
Shoalhaven Local Environmental Plan 2014;
Development Control Plan No. 18 - Car Parking Code ('DCP 18');
Development Control Plan No 63 - Tourist Development in Regional Areas ('DCP 63');
Development Control Plan No 78 - Onsite Sewerage Management ('DCP 78')
Development Control Plan 91 - Dwellings and Ancillary Structures ('DCP 91');
Development Control Plan 93 - Controls for Waste Minimisation and Management ('DCP 93');
Shoalhaven Contribution Plan 2010; and the
Roads Act 1993

The particular aims of the SLEP (at cl 1.2(2)) are as follows: "1.2 Aims of Plan … (a) to encourage the proper management, development and conservation of natural and man-made resources, (b) to facilitate the social and economic wellbeing of the community, (c) to ensure that suitable land for beneficial and appropriate uses is made available as required, (d) to manage appropriate and essential public services, infrastructure and amenities for Shoalhaven, (e) to minimise the risk of harm to the community through the appropriate management of development and land use."
As shown above in the aerial photograph with zoning overlay, the Site is partly zoned RU1 - Primary Production (which applies to most of the Site) and E2 - Environmental Conservation (covering the north-western and south-eastern corners of the Site).
The objectives of the RU1 zone are: "• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To conserve and maintain productive prime crop and pasture land. • To conserve and maintain the economic potential of the land within this zone for extractive industries."
The consent authority must have regard to the objectives for development in a zone when determining a DA in respect of land within that zone: cl 2.3(2).
In the RU1 zone, under the SLEP, developments permitted without consent are: extensive agriculture, forestry and home occupations. Prohibited development comprises: hotel or motel accommodation, pubs, serviced apartments; and any other development not specified as being either permitted without or permitted with consent. Permitted with consent is development including eco-tourism facilities and tourist and visitor accommodation (but with the subset of "hotel and motel accommodation" being carved out as being prohibited development).
Thus, within the RU1 zone, an eco-tourism facility is permitted with consent. "Eco-tourism facility" is defined by SLEP to mean a building or place that: "(a) provides temporary or short-term accommodation to visitors on a commercial basis, and (b) is located in or adjacent to an area with special ecological or cultural features, and (c) is sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact. It may include facilities that are used to provide information or education to visitors and to exhibit or display items."
An eco-tourist facility is distinguished from tourist and visitor accommodation, and is indeed described as "not a type of tourist and visitor accommodation". This is reinforced in the definition in the SLEP set out below: "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."
Notwithstanding that hotel or motel accommodation is, as defined, a subset of tourist and visitor accommodation, that type of accommodation is expressly prohibited in both the RU1 and E2 zones. The definition of hotel or motel accommodation is: "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."
There is a specific planning regime which applies to eco-tourist facilities. Requirements which must be satisfied before development consent can be granted for this kind of facility are detailed at cl. 5.13 of the SLEP as follows: "5.13 Eco-tourist facilities (1) The objectives of this clause are as follows: (a) to maintain the environmental and cultural values of land on which development for the purposes of eco-tourist facilities is carried out, (b) to provide for sensitively designed and managed eco-tourist facilities that have minimal impact on the environment both on and off-site. (2) This clause applies if development for the purposes of an eco-tourist facility is permitted with development consent under this Plan. (3) The consent authority must not grant consent under this Plan to carry out development for the purposes of an eco-tourist facility unless the consent authority is satisfied that: (a) there is a demonstrated connection between the development and the ecological, environmental and cultural values of the site or area, and (b) the development will be located, constructed, managed and maintained so as to minimise any impact on, and to conserve, the natural environment, and (c) the development will enhance an appreciation of the environmental and cultural values of the site or area, and (d) the development will promote positive environmental outcomes and any impact on watercourses, soil quality, heritage and native flora and fauna will be minimal, and (e) the site will be maintained (or regenerated where necessary) to ensure the continued protection of natural resources and enhancement of the natural environment, and (f) waste generation during construction and operation will be avoided and that any waste will be appropriately removed, and (g) the development will be located to avoid visibility above ridgelines and against escarpments and from watercourses and that any visual intrusion will be minimised through the choice of design, colours, materials and landscaping with local native flora, and (h) any infrastructure services to the site will be provided without significant modification to the environment, and (i) any power and water to the site will, where possible, be provided through the use of passive heating and cooling, renewable energy sources and water efficient design, and (j) the development will not adversely affect the agricultural productivity of adjoining land, and (k) the following matters are addressed or provided for in a management strategy for minimising any impact on the natural environment: (i) measures to remove any threat of serious or irreversible environmental damage, (ii) the maintenance (or regeneration where necessary) of habitats, (iii) efficient and minimal energy and water use and waste output, (iv) mechanisms for monitoring and reviewing the effect of the development on the natural environment, (v) maintaining improvements on an on-going basis in accordance with relevant ISO 14000 standards relating to management and quality control."
The other relevant zoning, the E2 Environmental Conservation zone, has the following objectives: "• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To protect water quality and the ecological integrity of water supply catchments and other catchments and natural waterways. • To protect the scenic, ecological, educational and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages. • To conserve and, where appropriate, restore natural vegetation in order to protect the erosion and slippage of steep slopes."
These objectives focus on protection. Consistent with these objectives, permitted development is limited, but does include eco-tourist facilities, and bed and breakfast accommodation. Unlike in zone RU1, tourist and visitor accommodation is not permitted.
The Site is also subject to other controls including those relating to terrestrial biodiversity and riparian lands and watercourses (cll 7.5 and 7.6 SLEP respectively).
Adjacent to the E2 zone is the Black Ash Nature Reserve, which is zoned E1 in recognition of its environmental significance. No development is permitted within that zone.

Background to the Application

The application was lodged with the Council on 17 October 2014, which registered the DA with the JRPP on 31 October 2014. Various referrals were made to external authorities for their comment on 3 November 2014, including (Ex 7, pg 9): "a) Water NSW. b) NSW Office of Environment and Heritage. c) National Parks and Wildlife Service. d) Endeavour Energy. e) NSW Roads and Maritime Service. f) NSW Rural Fire Service. g) NSW Department of Primary Industries - Office of Water. h) NSW Department of Primary Industries - Fisheries. i) NSW Police Force."
Internal referrals were also made on the same date. Several of these internal referrals resulted in requests for further information. The application was notified from 5 November 2014 to 8 December 2014, which notification period was subsequently extended (by resolution of the Council) to 9 January 2015. The notification period was further extended to 9 February 2015. The original application included a conference centre as part of the development.
Following the notification process, 292 submissions were received from 185 households/groups, with the vast majority comprising objections to the proposed development. Two petitions were submitted, signed by 1,777 people.
Throughout the assessment period, the Council sought and the Applicant provided additional information in respect of the proposal. As a result of this additional information, a further notification period was undertaken. In the following months, the iterative process of assessment, calls for further information and new material continued. There was a further notification period of 33 days, from 11 September to 14 October 2015.
On 30 October 2015 the Council submitted its s 79C Assessment Report to the JRPP. On 5 November 2015 the Council's Regional Development Committee recommended refusal of the application. The Southern Joint Regional Planning Panel refused consent on 12 November 2015, and the Applicant was notified of the decision to refuse the DA on 27 November 2015.
The reasons given for refusal included that the development: had not satisfied the Council that the requirements of cl 5.13 (Eco-tourist facilities) of the SLEP had been met; did not satisfy the density standards and amenity requirements of Shoalhaven DCP no 63 - Tourist Development in Rural Areas; would result in an unacceptable noise impact; was proposed for a site which was unsuitable for it; and was not in the public interest.
This appeal was filed on 15 April 2016.
Since the application was first made and subsequently refused, the proposal has been changed to eliminate conference use, with the result that the development is not prima facie prohibited. In addition, acoustic experts have agreed that the Council's concerns about amenity insofar as they relate to noise are able to be dealt with by way of condition, provided certain procedures and practices are adhered to.
A conciliation conference held in October 2016 was unable to resolve the dispute. On 9 December 2016, the Applicant was granted leave by the Court to amend its DA.
The Applicant's application (considered in this appeal) included new material which was prepared for the purposes of the hearing. This material included a new Plan of Management ('PoM') dated February 2017. The PoM contains a number of appendices, including a site plan; details of a landscape regeneration area; ESD Strategy and targeted green star certification; Rockfield Park Interpretation Plan; Acoustic Assessment Report; Waste Management Plan and Bushfire Evacuation Plan: Exhibit D.

The Council's Contentions

The Council's contentions which it pressed in this appeal are as follows: 1. The proposal does not satisfy the provisions of clause 5.13 (Eco-tourist facilities) of the SLEP. In particular, the Council is not satisfied as to the following matters: 1. That the proposed facility has a "demonstrated connection" with the ecological, environmental and cultural values of the Site, a mandatory requirement under cl 5.13(3)(a); 2. That the facility will be constructed, managed and maintained to minimise impacts on and conserve the natural environment (cl 5.13(3)(b)) including adequacy of information with respect to alternative power sources; 3. That waste generation during the operation of the facility will be "avoided" and that ongoing waste will be managed; 4. That there is sufficient information with respect to compliance with the requirements to minimise impact on the natural environment; 5. That the development is not consistent with the objectives listed in cl 5.13(1) of the SLEP. 1. The proposal does not comply with the provisions of Part 2.2 (Density Standards) of DCP 63, and is therefore an overdevelopment of the Site. In particular that: 1. 42 units are proposed, when only 35 are allowed; and 2. The excessive density is out of character with the adjoining rural area, having regard to noise impacts and incompatibility with the surrounding development. 1. The proposal will result in an unacceptable visual impact. In particular, when viewed from the east the development will not be obstructed by the topography of the land or existing established vegetation, and it has not been demonstrated that the development will not have an adverse visual impact when viewed from a distance to the east. 2. Finally, having regard to the size of the development, its non-compliance with cl 5.13 of SLEP and the number and substance of the public objections received, the proposal is not in the public interest.
The Council is satisfied that the matter of noise is no longer in issue between the parties. For completeness, I note the following agreement of the experts with respect to the satisfaction of the noise contention: with suitable acoustic treatments and controls, the proposed development (including the central facilities including the restaurant) will comply with the relevant noise level criteria. Compliance with the relevant noise level criteria will be achieved "providing the controls are strictly adhered to". The experts further agree that "compliance with the acceptable noise criteria at all surrounding residential receptors will be contingent on the ongoing management of the resort and the premise that there will be no functions or the like held at any time, including no amplified music other than low level background music to accompany restaurant dining guests" (Joint Expert Report (Acoustics), Exhibit 6).
Although this is, obviously, a burdensome requirement to be incorporated in conditions of consent (if consent were to be granted), nonetheless the long settled position is that a person granted consent, subject to conditions, will abide by those conditions.
The reasons for decision in this judgment are more confined than the evidence and further submission which were put during the hearing, which was extensive. However, as these matters were not considered to be dispositive of the matters in dispute they have not been included. I make no finding in respect of those matters which have not been expressly identified in this judgment.

The Site Visit

On 20 March 2017, the first day of the hearing, in company with the parties, their legal advisers and experts, I had the opportunity to undertake an extensive view of the Site. I was shown the approximate location of the proposed cabins, swimming pool and spa centre, car park area and other features of the proposed development. I was also taken across the three creeks which traverse the property, as well as travelling to the edge of the Black Ash Nature Reserve. I also travelled in a south-easterly direction from the south-west of the property: along Tourist Road, turning left into Kangaroo Valley Road. I had the benefit of seeing the adjacent nature reserve. Various view lines and vistas were pointed out to me.
On the morning of the site visit, which was affected by lifting mist, I observed that a tree had fallen onto the Kangaroo Valley Road as I drove between the township of Berry and the Site, reducing the trafficable area to one narrow laneway. I also observed the road to contain hairpin bends, narrow width and steep drops to the side.

Objector Evidence

Several dozen objectors attended the first day of the hearing on site, and nine of these objectors made submissions. As noted at [33] above, there has been and is considerable community opposition to the development. Counsel for the Applicant, Ms Duggan SC, objected to each of the witnesses giving evidence; however, the Court permitted the admission of the objector evidence on the basis of its admission as lay, and not expert, evidence, which dealt with Ms Duggan's objection.
Notes were taken of the objector evidence given on site and an agreed compilation was filed with the Court: Exhibit 14.
The concerns of the objectors are summarised as follows: concerns about the quality of the information to support the proposal; access to information; road safety and emergency management, including fire risk; traffic management; water and sewage management; environmental impact of the proposal; intensity of use; adequacy of plan of management; Aboriginal cultural heritage; permissibility of the proposal and its characterisation as an eco-tourism development; noise pollution; adverse visual impact and the public interest generally. In support of these submissions, photographs of street signs and a video were provided, containing footage taken from a vehicle showing local road conditions. I later viewed the video submitted by an objector with the sound turned down, and without paying regard to the words beneath the images. (It had been admitted into evidence on this basis.)

The Evidence

Expert evidence was provided by for the Applicant by Mr Robert Varga (Traffic); Ms Jennie Buchanan (town planning evidence); Mr Tony Charters (Eco-tourism); Mr Israel from Project Tourism International Architecture Pty Ltd (PTI) (Visual Impact Assessment - Exhibit C); and Mr White (Acoustics).
For the Respondent, evidence was provided by Ms Elaine Treglown (town planning) Mr Scott Wells (Traffic) and Mr Harwood (Acoustics).
The following Joint Expert Reports formed part of the evidence in the proceedings:

Mr Robert Varga and Mr Scott Wells prepared a joint expert report on traffic (Ex 11);
Mr Charters and Ms Buchanan (for the Applicant) and Ms Treglown (for the Council) prepared a joint expert report on town planning and eco-tourism (Ex 5); and
Mr White (for the Applicant) and Mr Harwood (for the Council) provided a joint report on Acoustics (Ex 6).

Oral evidence was given by Mr Charters, Ms Buchanan and Mr Varga for the Applicant and by Ms Treglown and Mr Scott (who appeared via telephone) for the Council.

The proposed development and cl. 5.13

The Council has framed some of its objection to the proposed development around what it says is the Applicant's inability to satisfy various elements of cl 5.13 of the SLEP. As noted above, that clause sets out those matters about which the Court must be satisfied in order for consent to be able to be granted to the proposed development. If those matters are not satisfied, consent cannot be granted.
With respect to cl 5.13 of the SLEP, the particulars of the Amended Statement of Facts and Contentions that the Joint Town Planning Report canvassed were:

Particular 1(c) - that the Respondent is not satisfied that the proposed eco-tourist facility will have a 'demonstrated connection' with the ecological, environmental and cultural values of the site or area (cl 5.13(3)(a);
Particular 1(d) - that the Respondent is not satisfied that the proposed eco-tourist facility will be constructed, managed and maintained so as to minimise impacts on and conserve the natural environment (cl 5.13(3)(b);
Particular 1(e) - that the Respondent is not satisfied that waste generation during the operation of the eco-tourist facility will be "avoided" (cl 5.13(3)(f)); and
Particular 1(f) - that the Respondent is not satisfied that sufficient information has been submitted with the development application to demonstrate compliance with parts (i) to (v) of cl 5.13(3)(k).

With respect to the requirement for a demonstrated connection between the development and the ecological, environmental and cultural values of the site or area, Mr Charters for the Applicant identified a number of matters which he says go to the satisfaction of this requirement, relying upon the Rockfield Park Interpretive Plan [Ex D, Tab D of the PoM]. The site and its environs "provide a wide range of interpretive themes that can be developed", with interpretation and education to be presented through a range of media, suitable to an ecotourism lodge. These media would involve a mix of personal interpretation (such as bird watching walks and residential short courses, for example wildlife photography and rainforest identification); personal interpretation offsite within the environs of Rockfield Park (activities within a day trip, including art galleries and museums); non-personal interpretation, in-room and within the internal public areas (such as a guest compendium with information about indigenous cultural history of the region and the sustainability features of the property) and within the grounds (such as self-guided walks); non-personal interpretation - web-based and social media; and ecoguides: Ex D, pp 1 - 6; Joint Report at [10] and [12]].
Ms Treglown for the Council did not consider that static displays, information in guest compendiums, appreciation of views nor participation in farm activities contribute to a demonstrated connection, and criticised the limited information available on the location of walking trails and how guests may become involved in, say, weed management and revegetation works: Ex 5 at [13].
In response to Council's criticism that there was insufficient detail about the location of these walks, Mr Charters responded that detailed planning would in the normal course of a development application occur later, and walking trails would be placed where the terrain was not too steep.
Mr Charters acknowledged that there was no obligation on guests to undertake these activities, but opportunities would be available to guests of the lodge to become involved in the provided activities.
Mr Charters pointed to the many layers of significance of the Site, including the farm heritage; Black Ash reserve, containing threatened flora and fauna species; the site's scenic location and its location within a region of diverse natural and cultural heritage: Ex 5 at [11].
The Council's expert did not agree that the material provided by the Applicant satisfied the demonstrated connection requirement, as the obligation lay with the Applicant to show the manner in which the activities were to be provided. Ms Treglown also opined that there is no demonstrated connection due to the capacity and method of operation of the restaurant and lounge/bar: Ex 5 at [5]. A restaurant and lounge for the proposed scale are not essential elements of an eco-tourist facility, as the size, capacity and intended use of the restaurant, lounge and bar may attract guests who are not visiting to experience cultural and ecological values but rather for the principal prupose of attending a function or to dine: Ex 5 at [6].
The Applicant's expert, Ms Buchanan, rejected this, positing an alternative assumption that guests attending the site for a function have chosen to hold a function there precisely because of the setting and opportunities to undertake experiences on the site: Ex 5 at [7].
Ms Buchanan also pointed to the Applicant's proposal to seek a 5 Star Green Star as Built rating, as well as an Advanced Eco certification: Ex 5 at [23]. The revised ESD report (forming part of the PoM - Exhibit D) now includes specific commitments as to which energy and water saving initiatives are to be installed at the eco-tourist facility: Ex 5 at [24]).
Ms Treglown acknowledged that the new report contained more information on alternative power sources: Ex 5 at [25]. However, this further information did not deal with all her concerns, which included the limited information provided on the specifics of the various systems and associated infrastructure, with this detail considered to be necessary to ensure that the impacts are adequately addressed: Ex 5 at [25].
Ms Treglown expanded on these concerns in her oral evidence, particularly what she described as the generic nature of various of the renewable energy options. Under the Applicant's proposal, various final details are left to the construction certificate stage, such as the placement of solar panels and location of wind towers (which are at present not known). Moreover, it was unclear if there was sufficient area to accommodate solar panels. At present, she did not consider the Applicant's statements to be actual commitments. With respect to the energy and greenhouse gas strategy, there were no plans for the thermal labyrinth. There was no detail explaining where energy recovery was to be constructed.
As for the renewable energy options canvassed within the report, specifically biogas generation and worm composting, Ms Treglown remained unconvinced that the claimed reduction of waste using these technologies would be achieved. Specifically, she pointed out the absence of information with respect to the amount of waste to be handled by biogas generation, worm farming and composting: Ex 5 at [35].
In responding to questions from the Applicant's counsel Ms Duggan, Ms Treglown conceded that the PoM was prospective as it was prepared at a time when the development did not exist. She also conceded that as the development matures and technology advances, the PoM requires the Operator to review its performance. However, Ms Treglown did not resile from her opinion that the requirements of cl 5.13 are required to be met prior to the granting of development consent and were not presently met by the PoM, in particular waste minimisation and energy use.
In answer to a question from Ms Duggan, Ms Treglown agreed that a condition of consent could require the development to meet a 5 star energy rating. She also agreed that the Applicant could apply for and obtain ecotourism certification. However, Ms Treglown reiterated that the Applicant's obligation is to demonstrate that the requirements of cl 5.13 are met. Failure to demonstrate this meant that in her opinion, consent was unable to be granted.
Ms Buchanan noted that the Waste Management Plan now focuses on avoidance and includes the use of biogas as an energy source, thereby reusing organic waste from the facility and the farm: Ex 5 at [26]. Ms Treglown, by contrast, is not satisfied that the waste management plan contains sufficient and accurate information to confirm that waste will be adequately managed on site: Ex 5 at [29].
There was a difference in opinion between the experts as to the appropriate standards to be used in calculating waste generation rates. The Waste Mangement Plan [Ex D, Tab F] calculated rates in accordance with the City of Sydney's recommended waste generation rates for a hotel, in the absence of specific rates within Shoalhaven's DCP: Ex 5 at [30]). Ms Treglown rejected the proposition that a hotel development in a metropolitan area was the correct standard to use in an ecotourism facility in a rural/escarpment setting where waste reduction is a key objective. However, Ms Treglown also rejected the Applicant's proposition that the Council itself was obligated to proffer an appropriate standard. The experts agreed in the joint report that under the WMP figures only 15% of waste was to be recycled, meaning that 85% of waste would leave the Site as general waste: Ex 5 at [30-31]. In Ms Treglown's opinion, this high percentage of general waste leaving the Site does not suggest that waste generation will be avoided or minimised, thereby offending a requirement of cl 5.13.
This figure (of 15%) remained in contention between the parties, with the Applicant's expert stating that the rates did not take account of the additional waste minimisation measures proposed by the Applicant, such as use of a biogas generator; composting/worm farm; installation of reusable containers for toiletries and environmentally responsible purchasing: Ex D at [34].
In oral evidence, Ms Treglown confirmed her opinion that a recycling rate of 15% is low. She also maintained her opinion that the Waste Management Plan does not address the requirement of reduction in waste. Ms Treglown concurred with Ms Duggan that a philosophy of waste minimisation was expressed, but did not agree that this philosophy would necessarily result in outcomes.
In his oral evidence, Mr Charters rejected Mr Robertson's proposition that what was proposed with renewable energy were vague promises which amounted to "green washing". Instead, Mr Charters posited that a range of solutions are offered, with a very clear intent and a range of alternatives. The detail of these offerings, says Mr Charters, is to be prepared at the detailed planning stage. The intention is to seek advanced level eco-accreditation, which scheme was developed precisely to counter the issue of "greenwashing", and to hold operators to account. Mr Charters' evidence was that the application for certification was unable to be submitted until the property had been constructed and was running.

Traffic Evidence

In his report of 24 September 2014 [Ex B, p152] Mr Varga for the Applicant noted the following traffic controls which apply to the road network in the vicinity of the site. Kangaroo Valley Road and Tourist Road are local, unclassified roads primarily used to provide vehicular and pedestrian access to frontage properties. Key features of the controls are:

A 60 km/h speed limit which applies to Kangaroo Valley Road in the vicinity of the Site;
A 60 km/h speed limit which applies to Tourist Road in the vicinity of the Site; and
A Give Way sign in Tourist Road where it intersects with Kangaroo Valley Road.

In addition, the section of Kangaroo Valley Road is signposted as "Road Ahead Unsuitable for Caravans, Coaches and Large Vehicles", prohibiting vehicles over 7.5 m in length "due to the steep and winding nature of the road" [Exhibit B, p161].
Details were provided by the Applicant about a funding application which has been made by the Council. In an effort to address the community's concern with respect to roads and safety, the Council has sought funding through the Federal Government's Blackspot Program. The Council wrote to property owners on 14 March 2017, advising them of the Council's application for funding for a 6.035 km length of Kangaroo Valley Road from Bundewallah Road to approximately 500 m west of Tourist Road (Ex C).
The project proposes to marginally widen the road (where required) to achieve the minimum width of 5.5m to provide centre line marking in accordance with standards. The widening would include pavement improvement works. This project has been nominated by the Council "to address head-on and off-path crashes. Installing line marking will improve lane definition along the narrow carriageway which regularly experiences visibility issues due to thick tree canopy blocking sunlight and regular fog conditions": Ex C.
The letter further describes a 2012/2013 black spot project which included a full review of warning signage and chevron alignment markers and installation of guard rail. Thirteen sections of guardrail were installed at high risk locations following a successful grant application.
The Council's "back up plan", in the event that the funding application is unsuccessful, is to "continue to seek whatever grant funding assistance it can to continue the safety improvements on Berry Mountain".
The RMS Crash Data for the period 1 October 2011 to 30 September 2016 (Ex 13) discloses that there were 18 crashes along Kangaroo Valley Road, between Berry and before the intersection with Wattamolla Road. Of those 18 crashes, 4 were described as "serious injury" crashes, 7 were moderate and 1 was minor. There were no fatalities in the period.
On the first day of this hearing in Court I expressly put the parties on notice that the matter of traffic was a particular concern to me, and that it would be of assistance if further evidence could be provided by each party's expert as to certain matters pertaining to traffic management and safety. Traffic and the related topic of road safety was also a matter which occurred with great frequency in the issues raised by the resident objectors. The Court may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits: s 38(2) of the Land and Environment Court Act 1979. As a consequence of this request, a joint expert report was prepared in very short order by Mr Wells and Mr Varga. Mr Varga gave oral evidence in Court, and Mr Wells, by telephone. I am indebted to the parties (and the experts) for their prompt response to my request for additional evidence.
In their Joint Report on Traffic (Ex 5), the experts agreed that roadway capacity (with respect to Kangaroo Valley Road) was not a matter for concern, based on the relevant traffic capacity guidelines. These guidelines were identified as the AUSTROADS Guide to Traffic Engineering Practice Part 2 - Roadway Capacity Table 3.9.
The experts agreed that the likely amount of additional traffic to be generated by the proposal is "more likely to be closer to 144 vehicles per day" (in contrast to the original assessment of 417 vehicles per day, as earlier assessed under a previous proposal). Regardless of which figure is correct, the experts agree that the volumes to be generated by the proposal fall well short of the thresholds for mountainous rural roads as specified in the AUSTROADS guidelines.
As far as fog and darkness are concerned, the experts were in agreement that drivers needed to drive to the conditions. Moreover, both agreed that the Council's proposal for line marking will result in significant safety improvement.
As far as construction traffic is concerned, the experts agreed that an appropriate construction traffic management plan could address these issues.
There were points of disagreement between the experts. Mr Wells for the Council considered that safety was "of concern upon reflection of the current crash rates" (emphasis mine), and that it may be reasonable for the Court to impose a "reasonable condition" requiring the Applicant to contribute to safety improvements along the road, such as a reasonable contribution towards the western side of the mountain, having regard to the Council's Federal funding application for the eastern side of the mountain.
Mr Varga disagreed with this proposal that the Applicant contribute to the cost of upgrading the road, given that the capacity thresholds would not be exceeded, making it unreasonable for the development to be deferred until after safety improvement works were undertaken. It would also be unreasonable for a very significant contribution to be sought from the Applicant towards external works.
In oral evidence, in answer to a question referencing his "concern with safety", Mr Wells stated that the 18 crashes referenced in the RMS data over a five year period is an unusually high number, which has led to a stronger focus by the Council to seek grant funding. The particular safety issues that Mr Wells identified are the mountainous nature of the road, limited sight distances, fog and animals. He further stated that even if traffic volumes are low, some people have trouble negotiating the road.
By contrast, Mr Varga opined that he was not as concerned as Mr Wells about the number of crashes disclosed in the crash rates.
Mr Wells also spoke about the difficulty of Kangaroo Valley Road complying with AS 1742 - Signs and Lines, given the narrowness of the road. Under that standard, to centre linemark a road, it must have a minimum width of 5.5m. Many sections of Kangaroo Valley Road are not able to meet this standard. Moreover, some areas of the road are not able to be widened, due to the natural terrain, and lack of funding. At the time of the hearing, the fate of the blackspot funding application was unknown. In 2011, funding was granted for construction of a guard rail and signage for 12 km of Kangaroo Valley Road. The pavement is showing signs of failure with pot-holes and crumbling shoulders.
Under cross-examination, Mr Wells agreed with Ms Duggan's proposition that safety was not of such a concern to the Council that it was prepared to spend its own funds on repairing the road.

Applicant's Submissions

The Applicant has submitted that the Court is only required to determine issues joined between the parties: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at 189 (paragraph [43]) and 201 (paragraph [95]). (The Applicant agreed that an issue may also be raised by the relevant consent authority - in this case, the Court - with notice, which is what happened in this case.)
The Applicant submits that with respect to the preconditions set out by cl 5.13, this is not a matter of permissibility, but a "gateway". If relevant satisfaction is achieved as to the necessary matters, the gate is open, and the matter can be considered.
With respect to the requirement to show a "demonstrated connection", the Applicant, in summary, submits that the application identifies the inherent values and the means by which those values will be appreciated. The values which have been identified are the: cultural values of the site (including its past use as an agricultural concern, planted exotic gardens and retained bushland); environmental values (the scenic location appreciated both within the site and the area) and ecological values of the area, including the Black Ash reserve which contains threatened flora and fauna and is also of general ecological interest.
The required connection is achieved through visitation; active education; participation and passive education.
The Applicant's submission with respect to waste management is that the PoM makes sure garbage does not come onto the Site in the first place. All food waste will be composted; electronic equipment will be recycled; workers and guests will be educated as to the approach to waste minimisation. Management response will be adjusted as required.
With respect to power and water, the Applicant's position is that architectural design promotes passive cooling and heating; all power will be sourced through green energy. Efficient and feasible technologies will be investigated and incorporated. Given the need for innovation, the Applicant concludes that what is proposed is appropriate.
As for the matters raised by the Objectors, the Applicant's position is that these matters have been considered at each state of this planning process: by the Council, the JRPP and finally the Court. Absent objective evidence, the Applicant says that the fears and concerns of the residents do not support refusal of the application.
The additional evidence produced in response to the Court's request resulted in the following agreed positions by the traffic experts for the parties: the road usage is significantly below the capacity threshold for this type of road; construction traffic can be appropriately managed; drivers will be required to drive to conditions and three proposed conditions of consent have been agreed to by the Applicant.
With respect to road safety, the Applicant has submitted that "due to low traffic volumes and relatively low crash data (Ex J) … the road is presently sufficiently safe for current and proposed traffic. Additionally the works proposed by the Council (Ex E) will further improve the safety of the road."
The Applicant relied upon the decision of New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] where Lloyd J held that: "the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. While such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area".
The Applicant strongly pressed the position that the Council has never raised traffic as a contention between the parties. The Applicant also submitted that neither the Council nor RMS submitted objections with respect to the road as reasons for refusal, save for being caught as a public interest consideration.
The Applicant further submits that the fears and concerns raised by the residents have not been accepted as a reason for refusal by the Council, the JRPP or the expert evidence. Moreover, the Applicant submits that the issue is one which has been the subject of considerable consideration by all relevant authorities, and determined on merit to be a matter that does not warrant refusal of the application. In summary, the Applicant submits that the issues concerning traffic do not provide grounds for refusal of development consent.

Council's Submissions

The Council submits that of the 292 submissions received by the Council, 192 raised concerns in relation to traffic and safety of the surrounding road network.
Detailed examples of evidence by motorists of traffic hazards experienced by users of Kangaroo Valley and Tourist Roads are set out at Annexure A to the Council's written submissions. In excess of thirty detailed accounts are provided of those objectors' personal experiences with challenges and dangers of roads around the Site.
Exhibit 10 contains photographs of the road signage present along Kangaroo Valley Road and Tourist Road. In Council's submission there are over 150 road signs along these two roads. Travelling to the Site from either the easterly or westerly direction will require the driver to negotiate four and up to six hairpin bends.
The Council in its submissions analysed the most recent crash data available from the RMS. Two sets of crash data have been made available in the course of this hearing. Exhibit J comprises RMS Crash Data for the period 1 December 2008 to 30 September 2013, and Ex 13 contains RMS Crash Data for the period 1 October 2011 - 30 September 2016 (an analysis of the crashes in the later data set is set out above.) Twelve accidents were single-vehicle, with most occurring in fine weather on a dry surface during daylight hours.
Ms Duggan for the Applicant makes the point that the evidence of the police, insofar as it relates to traffic, is in respect of an earlier version of the Application. In its submissions the Council concedes that the assessment was directed to a higher daily increase from the development (Ex 2, folio 109). Notwithstanding this concession, in commenting on the original version of the proposal, Sergeant Henry of the Shoalhaven Local Area Command (Ex 2, Tab 32) noted his concern that the proposed development is within a high-risk bushfire area, and concluded that the roadway conditions will play a significant role in incident-free movement of people.
The Council further submits that the road "capacity", discussed by the experts, has nothing to do with road conditions, but is a hypothesised vehicle capacity on two lane two way rural roads: Ex 11, p22. This is not what exists in proximity to the Site, where in most parts, says the Council, there are no "lanes".
The Council rejected the Applicant's evidence of a "demonstrated connection", submitting that the special values needed to be clearly identified. The Council also found fault with the way the development proposed to achieve connection with its special values, in particular arguing that the paths proposed to be used for nature walks and the like have not been planned and have therefore not been able to be assessed, and such construction contradicts biodiversity recommendations with respect to the nature reserve.

Discussion and Findings

I accept the Council's submission, which in any event is a reflection of statutory construction, that the consent authority - in this case, the Court - must be satisfied as to each of the elements set out at cl 5.13(3) before its power to grant development consent is enlivened.
The inclusion of a control such as cl 5.13 demonstrates that before an eco-tourist facility becomes eligible for the granting of development consent, the Court must be satisfied as to the existence of each of eleven separate matters, one of which - the management strategy for minimising impact on the natural environment - contains five separate requirements. The bar is set very high. Notwithstanding that I find that part of the Applicant's case is successful with respect to this requirement, on this occasion for the reasons set out below, I find that the Applicant has not met that bar.
As far as the requirement that a "demonstrated connection between the development and the ecological, environmental and cultural values of the Site or area" are concerned, I am satisfied that the Applicant has provided sufficient evidence to meet this requirement of cl 5.13, and in my view the Council does not succeed in making out its contention in opposition. True it is that more work needs to be done by the Applicant (such as seeking the necessary consents for bushwalking activities where development is required to be undertaken). I also accept the Council's position that the environmental impact of some of these activities is yet to be assessed, but further accept the Applicant's submission that where required, relevant approvals will be sought. In my view the fact that the restaurant/lounge/bar area is reasonably significant in size does not of itself mean that a demonstrated connection cannot be made out.
The existence of this connection, while important, is insufficient to overcome what I find to be the shortfalls with essential elements of other aspects of the development, insofar as cl 5.13 is concerned, as proposed by the Applicant. The further work to be done with respect to the "demonstrated connection" aspect (such as identification and mapping of walking trails) is qualitatively different in my view to what I consider to be the matters which have not been demonstrated by the Applicant, as set out below.
I find that the lack of specific information with respect to alternative power sources, the limited information on the details and appropriateness of the systems and associated infrastructure, and the impacts arising from the way that waste is proposed to be managed, taken together in my view do not allow me to be satisfied that the development will be constructed, managed and maintained so as to minimise any impact on, and to conserve, the natural environment.
For the reasons set out below I concur with the Council's submission regarding the inadequacy of information regarding waste generation during the development's operation, dissatisfaction about aspects of waste management to be employed as well as concerns regarding the generic nature of information contained within the ESD Strategy and Targeted Green Certification Report [Ex D, Tab C].
For example, the Waste Management Plan [Ex D, Tab F] states that "all food and other organic waste will be processed via a biogas generator (that will provide energy for use), a worm farm and/or composted." An aspect of waste management therefore is biogas (described as gas resulting from the fermentation of organic waste), which is capable of providing a clean energy source and reduction in the amount of Greenhouse gas released from the facility: Ex D, Tab F, p. 8. Upon examination of the proposed energy sources, biogas is described as one of several "renewable energy options" incorporated into the development, with "further analysis (such as gas demand, generation and sizing) to be carried out in the detail design phase of the project": Ex D, Tab C, p.20. The role of biogas in both energy generation and waste reduction is therefore uncertain. The role of worm farms for processing kitchen waste is "a process that will be further investigated" [Ex D, Tab F, p.5].
It is plain that the Applicant has put forward a number of proposals with respect to energy, including one mentioned above. However, the standard laid out in the SLEP is that the consent authority is to be satisfied that "any power and water to the site will, where possible, be provided through the use of passive heating and cooling, renewable energy sources and water efficient design".
I accept the evidence of the Council's expert that there is insufficient detail for the Court to be satisfied about power generation, waste management, greenhouse gas reduction, biogas, the thermal labyrinth and the air/heat recovery system for the gym and pool. I accept the Council's submission that intent does not satisfy the relevant test, and thus I do not hold the necessary satisfaction required.
With respect to waste, even if it were accepted that the avoidance of waste (as proposed by the Applicant) were well-executed, the Applicant's own figures demonstrate that the very low figure of 15% of waste generated by the development will be recycled. Allowing for some degree of increase in that figure given that the calculations do not include organic waste generated from the dining rooms (as this is said to be managed on-site, as set out at [117] above), the waste management approach could not be said to be one which "minimises impact on the natural environment". Under the proposal as it stands significant amount of waste will still be leaving the site.
I note the Applicant's submission that the development application has undergone significant assessment and refinement to address the concerns of the Council. I also note its submission that the application contains a commitment to continue to adopt and respond to changing future conditions. However, notwithstanding the considerable efforts made by the Applicant, I am not persuaded that these further refinements are such as to allow me to reach the necessary level of satisfaction as to each of the matters required by cl 5.13.
I have also considered the evidence of the Applicant's town planner that the PoM should be enough to give comfort to the Council and the Court that a formal management strategy for minimising any impact on the natural environment will be prepared prior to the construction and operation of the facility (emphasis mine).
I cannot take the comfort invited by the Applicant. The planning requirements have been drawn specifically to require satisfaction as to a range of matters prior to the grant of consent. The language used is clear, insofar as consent must not be granted unless the consent authority is satisfied as to certain matters. This satisfaction is not intended to be deferred to a later time, or made subject to a deferred commencement condition. It would be contrary to the plain language of the SLEP to prefer this construction.
In my view, too much of what the Applicant proposes to do with respect to fundamental aspects of the proposed development remains inchoate. If I were to grant consent based on that which is presently before me (at an approach which would defer, back to the Council at some future time, approval of matters where the language of the SLEP is clear that I must have the requisite satisfaction at the time of granting consent), this would be contrary to the approach required, as held by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88.
The matters which remain outstanding - such as the location of wind turbines, and a position as to whether or not co-generation will be feasible in the development - are not minor matters of detail, but go to the heart of the ability of the development to satisfy the particular and detailed requirements imposed by cl 5.13.
The Council submits the fundamental criticism that the ESD Strategy and Targeted Green Star Certification report [Ex D, Tab C] is "merely a wish list of possible solutions". While this colourful expression is not one that the Court would employ, I concur with the gist of the submission that follows, that there is insufficient detail contained within that report to allow the Court to arrive at the necessary satisfaction as to each of matters prescribed by cl 5.13: that satisfaction must be arrived at before the grant of consent.
Based on the level of detail in the application and currently available for assessment, taken together for the reasons set out above I am not satisfied that the facility will be constructed, managed and maintained to minimise impacts on and conserve the natural environment, nor am I satisfied that power and water to the site will where possible be provided through the use of passive heating and cooling, renewable energy sources and water efficient design. Likewise, the approach to waste avoidance, removal and management is not such as to allow me to be satisfied that the preconditions of cl 5.13 have been met.

Findings on Traffic

Further, I am not satisfied that the proposed development is a suitable development for this location, given the condition of the roads, which condition is exacerbated by the prevalent climatic conditions which can make the roads slippery and dangerous. The condition of the roads remains a matter of concern to me in light of the factual evidence given by the objectors (whose evidence has been considered by me as that of lay persons, and not experts).
The Applicant sought to rely upon the fact that on previous occasions, the matter of traffic was not of such concern to previous decision makers as to ground a refusal of the application. I note this submission but do not find it persuasive. As noted above, it is settled, and the Applicant accepted, that an issue may be raised by the relevant consent authority - in this case, the Court - with notice.
While I accept that the Council may be doing what it can with respect to obtaining additional grant funding to improve the state of Kangaroo Valley Road, this to me is seeking to ameliorate an existing problem which would be exacerbated if the proposed development were to be approved, given the consequent increase in the number of road users at various times of the day and night.
I am further persuaded by the Council's submission that the RMS Guidelines (which are necessarily general in nature) do not represent the "everyday problems which are experienced by local residents".
As for the evidence of objectors, I accept the Applicant's submission that the number of objectors to a proposal is not a relevant consideration per se for the purposes of this appeal. However, the issues they raised properly form part of the Court's consideration in accordance with s 79C of the EP&A Act.
There is authority that the Court may, upon notice being given to the parties, determine a matter based on submissions made on behalf of objectors to a proposal, provided there is proper and appropriate evidence to found that approach: Pain J in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47, upholding the decision of Moore SC (as his Honour then was) in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218.
The examples given by objectors of near misses, difficult conditions and the experiences of unfamiliar drivers (which are set out in detail in the objectors' evidence) are not representative of subjective fears, but in my view provide evidence to support a rational fear, which evidence is necessary not only to allow the Court to have regard to the views of residents, but to accord those views significant weight, adopting the test laid out by Lloyd J in the New Century Developments case (at [61]).
I note the submission from the Applicant that the police response to the proposal was to an earlier version of the application, which included a conference facility (and a higher volume of traffic). The police declined to respond to the later (current) application. The police were also not called by Council. However, these facts do not mean that no weight is to be placed upon the concerns raised by the police. Some of these concerns remain apposite for this development which is reduced in scale (compared with its earlier iteration), such as the concerns about the development's location in a bushfire-prone area.
While the Applicant refers to the material which it says represents the considerable analysis which has been undertaken regarding road use (at [5] of its Submissions) I am persuaded by the Council's rebuttal of much of that material, in particular the Council's submission that much of this material is concerned with parking or intersection issues, or discuss in a superficial way conditions to or from the Site on public roads. I place considerable weight on the direct observations of the local motorists and Council's traffic engineer, insofar as he expresses an opinion about safety.
I am persuaded by evidence such as this, and the RMS crash data evidence, that the proposed development is contrary to the public interest. The traffic and road safety risks which the development would pose are to my mind unacceptable. In this respect the location for the proposed development is not one which is suitable.

Concluding Findings

I am not satisfied that the proposed development meets each of the requirements of cl 5.13 SLEP, all of which must be met, and as a consequence, development consent must not be granted.
Even if I am wrong in that finding, I find that the proposed development should not be granted development consent, as it is contrary to the public interest, specifically with respect to concerns regarding traffic and road safety. In my view the traffic and road safety risks which the development would pose are unacceptable. These concerns alone are such as to warrant refusal of the application.

Orders 1. The Appeal is dismissed. 2. Regional Development application RA 14/1004 seeking consent for construction of an eco-tourist facility comprising 42 accommodation units and facilities including spa, wildlife centre and restaurant is determined by refusal. 3. The Exhibits, save for Exhibits A, D, J, 5,7,11 and 13, are returned.

Rosemary Martin Senior Commissioner 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: 18 October 2017

(2003) 127 LGERA 303

(2000) 111 LGERA 181

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