Hallidays Point Development Pty Limited and anor v Greater Taree City Council

Land and Environment Court (NSW)|2008-10-01

CITATION : Hallidays Point Development Pty Limited and anor v Greater Taree City Council (No 2) [2008] NSWLEC 1446

FIRST APPLICANT Hallidays Point Development Pty Limited

SECOND APPLICANT PARTIES : John Donnantuoni

Development Application - Development Control Plan :- KEY ISSUES: Staged development Concept plan

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan 199

Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC 106 CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59

DATES OF HEARING: 29 and 30 September and 1 October 2008

APPLICANTS Mr I Hemmings, barrister INSTRUCTED BY Stacks/Forster LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister INSTRUCTED BY BJ Donnellan & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10646 of 2007 Hallidays Point Development Pty Limited and anor v Greater Taree City Council

JUDGMENT The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ Introduction 1 COMMISSIONER: Blackhead Road joins the coastal hamlets of Diamond Beach, Hallidays Point and Blackhead with the Lakes Way. The Lakes Way is the main thoroughfare from Forster/Tuncurry to the Pacific Highway near Taree. Blackhead Road is not designated as an arterial road by the Roads and Traffic Authority but, for the purposes of the Greater Taree Local Environmental Plan 1995, by a combination of the definitions in the LEP and the relevant map, it is deemed to be an arterial road for the purposes of the LEP.

2 When travelling from the Lakes Way towards these coastal hamlets, at approximately the midpoint of the journey to the first of these settlements, the traveller passes the entrance to a residential estate known as Tallwoods on the left. Tallwoods is a golf course estate with the golf course on the comparatively low and flat a portion of the development and the housing along a series of spines formed by the spurs and ridge tops of the hills to the north of the entrance.

3 Directly opposite the entrance to the Tallwoods estate are located two comparatively flat rural allotments totalling ~ 80 ha in area and known as 212 - 296 Blackhead Road, Hallidays Point. It is upon these two rural allotments that the applicants propose the construction of a rural tourist facility. The proposed rural tourist facility would have, in the final form for which conceptual consent is now sought, 335 sites; a service station [to be ancillary to the rural tourist facility]; a cafe and shop [which are also to be ancillary to the rural tourist facility]; two playing fields; a range of equestrian facilities and opportunities for ecotourism walks through protected areas on the site. It is proposed to be developed on the parts of the site in the 1(a) Rural General zone of the LEP.

Staging 4 Approval for the proposed rural tourist facility is sought in a series of stages, the first of which is the subject of this appeal. This first stage involves no physical development but seeks approval for the concept which envisages a further three stages during construction. Each of these additional stages would be the subject of a separate development application to the Greater Taree City Council for its approval. A staging plan was in evidence in these proceedings setting out each of the three proposed construction stages.

Amendments to the concept during the course of the hearing 5 During the course of the hearing, the proposed concept underwent three significant changes - these resulting from amendments sought by the applicants and not opposed by the Council.

6 The first of the amendments involved the deletion of portion of the internal roadway proposed to run north-south toward the western boundary of the site. The deleted element of this roadway ran from the originally proposed T intersection in the vicinity of the horse stables northward to the outer southern edge of the north-western tourist sites proposed for the third construction stage of the development.

7 The second of the amendments involved the removal of 12 sites along the north-western frontage to Blackhead Road and their replacement with 8 sites located further to the south and outside the 40 m buffer zone which has been agreed to along the Blackhead Road frontage. The perimeter road in this area was also relocated to the edge of this buffer zone.

8 For reasons explored more fully later, the final amendment was that the equestrian facilities, comprising stables at construction stage 1; equestrian jumping area at construction stage 2; and dressage arena at construction stage 3, are now all proposed to be constructed during the first construction stage.

The site inspection 9 As part of the site inspection undertaken at the commencement of the hearing, an extensive drive around of all of the site (other than the SEPP 14 wetlands comprising approximately 30% of the site at its southern boundary) was undertaken with stops at various vantage points for discussion of aspects of the proposed concept.

10 In addition to the inspection of the site, an inspection was also undertaken, in a drive-by basis, of rural residential development to the west of the site off Blackhead Road and separated from the site by one large rural lot; development on the road leading into Hallidays Point and Blackhead; the major and minor retail and commercial centres at Blackhead and the nature of the residential and residential development adjoining the road linking these hamlets.

11 The large rural allotment to the west of the site along Blackhead Road separating the site from the nearby rural residential development has been identified by the Council as appropriate for development of a facility under the provisions of SEPP Seniors Living. The Council has issued a compatibility certificate for such a development and an application has been launched with the Council for a SEPP Seniors Living development on the site. This application has not yet been assessed and determined. However, it is agreed that, in my concentration of this proposal, I should undertake an assessment on the basis that it is likely that this allotment will no longer provide a rural backdrop to the west for any development permitted on the site but would provide what would be regarded as an urbanised background, at least to some degree of intensity, in substitution for that which is there now.

12 Three other locations were also visited during the course of the off-site inspection. The first of these was a visit to various points on the Tallwoods estate, on its most north-eastern ridge, where it was possible to overlook some parts of the site where parts of the built form of the proposed rural tourist facility would be located. Those locations on the site viewed from the Tallwoods locations in the public domain where development is proposed were in parts of the north-western corner of the site in an area in the third proposed construction stage.

13 Given the topography of the relevant parts of the Tallwoods estate visited and the fact that there were a number of dwellings constructed in the vicinity of these public domain inspection points (dwellings which were cantilevered out from the slope), somewhat more of the proposed rural tourist facility would be able to be viewed from those dwellings than could be seen from the public domain locations visited. Such additional areas which might be viewed from these houses would also be in the north-western corner of the site and, in addition to elements in the third construction stage, might also include some elements proposed for the second construction stage.

14 For reasons which will become apparent from discussion later, it is not necessary, in my view, to determine precisely the extent to which viewing of development in this portion of the site would be seen from these dwellings.

15 The second location comprised a partially developed tourist facility at Diamond Beach North. This tourist facility, essentially, comprises a recycled caravan park originally constructed some 30 years or so ago. Further stages of this development are currently the subject of a development application to the Council which has not finally assessed or determined this application. Further discussion of this facility and its relevance in those proceedings is dealt with later in this decision.

16 The third location was the headland at Blackhead which was visited for the purposes only of giving a view of the coastline and, from the coastline and its beaches, a broader appreciation of the coastal ambience and tourist attractiveness.

The matters in contention 17 Unusually for development appeals in the Court, there were no public submissions objecting to the proposal and there were a small number of form letter public submissions in support

18 A submission expressing concern about possible impacts on wetlands further to the south, within the Great Lakes Council area was made by that Council. However, after discussion between an officer of Great Lakes Council and relevant representatives of the applicant and the Council in these proceedings, that Council's concerns were satisfied and no objection pressed to the proposal.

19 Immediately prior to and during the course of the proceedings, discussions between various experts advising the Council and the applicant led to the resolution of a number of contentions contained in the Council's Statement of Facts and Contentions prepared and filed with the Court in late June 2008. This Statement of Facts and Contentions was based on revised plans prepared in the light of a decision given by Lloyd J in February 2008 concerning an earlier version of the proposal (see Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC 106). His Honour's decision is discussed in more detail below under the relevant contention concerning access to Blackhead Road - a contention which remains pressed by the Council despite His Honour's decision on the interpretation of the relevant provisions of the LEP.

20 Effectively, the Council's contentions put as warranting refusal and thus requiring my determination may be summarised as follows: o The proposed concept is prohibited by virtue of the provisions of cl 35(2) of the LEP. This concerns access to development from or in the vicinity of arterial roads being banned by this provision with, in the Council's submission, access from this proposed rural tourist facility to Blackhead Road being in contravention of that provision; o The proposed concept is prohibited as it does not satisfy the relevant broad objectives for all rural zones within the Council's area or the relevant objectives of the 1(a) Rural General zone against the provisions of which the development is to be assessed; o If the proposed concept does not fail at the second of these contentions immediately above, consideration of the merits of the proposed concept against those objectives and the relevant provisions of the Council's Development Control Plan 1995 causes it to fail on such a merit analysis; and o Proper consideration of the comments of the Rural Fire Service on the proposed concept should cause me to conclude that I could not be satisfied that appropriate bushfire protection measures were incorporated in the proposal.

21 If I were otherwise minded to approve the proposal, there were three matters relating to the proposed conditions of consent which were contested. The first was the Council's proposed requirement for the construction of either a pedestrian overbridge or subway to permit persons to move, safely, from one side of Blackhead Road to the other in the vicinity of the entrance to the site. The second was the Council's proposed requirement that the applicant should meet the totality of the cost of construction of a bicycle path from the entrance to the development to Blackhead township. Finally, the Council proposed I should impose conditions on the proposed café and service station to ensure that they were rendered ancillary to the proposed rural tourist facility.

Access to Blackhead Road 22 Clause 35(2) of the LEP prohibits developments such as this if they have any direct access to an arterial road identified as such by the LEP or have, as part of their access, indirect access within 90 m of such an arterial road. It reads, relevantly: 35. Development along arterial roads 1. ………… 2. The Council shall not consent to the development of land zoned 1(a), 1(b1), 1(b2), 1(c1), 1(c2) or 1(f) for any purpose listed in Schedule 4 if the development will have direct access to: (a) an arterial road; or (b) a road connecting an arterial road, and the access to that development is within 90 metres of the arterial road.

23 The proposal which was considered by Lloyd J in February 2008 was one which had an egress from the proposed service station immediately within and to the west of the entrance point to the development (which egress was capable, His Honour found, of being used for pedestrian access to the development).

24 In design terms, the plans which form the present concept element of the proposed rural tourist facility has removed this egress from the proposed service station and now proposes a fence which extends 90 m into the site on either side of the entrance way. For reasons discussed later, no secondary bushfire entrance is proposed.

25 In His Honour's decision, at paragraph 36, His Honour answered two specific questions, unequivocally, concerning the then proposal and its interaction with cl 35 of the LEP. First, His Honour held that the then proposal did not have direct access to an arterial road. Second, His Honour held that the possible pedestrian access through the egress point to the service station was a transgression of cl 35 and offended against the prohibition of access to such a development within 90 m of an arterial road. This, His honour found, rendered the development prohibited. The terms of His Honour's decision, as noted below, make it expressly clear that His Honour considered that there were no other breaches of cl 35.

26 From this, it can be seen clearly that the only element of the then proposal which offended cl 35 of the LEP was the indirect pedestrian access (see conclusion at para 36 of His Honour's decision).

27 This element of the proposal has now been removed by the incorporation within the concept of the erection of a pedestrian-proof boundary fence along the whole of the frontage to Blackhead Road and returning 90 m into the site on either side of the entrance. I am satisfied that the proposed fence removes the sole element which His Honour found contravened clause 35 the LEP.

28 Although Mr Fraser, counsel for the Council, valiantly attempted to persuade me that I should conclude that the access to Blackhead Road proposed in the present concept plan offends the provision of cl 35(2)(a) of the LEP - as it should be regarded as direct access to an arterial road, I am satisfied, as I indicated to him at the time, that I am bound by the decision of Lloyd J who quite explicitly determined that access of the nature proposed did not constitute direct access to an arterial road.

29 As I also indicated to Mr Fraser, if the Council wished to contest the validity of Lloyd J's findings, it was not appropriate to do so before me but was a matter that needed to be dealt with in an entirely different forum.

30 As a consequence, the Council inevitably fails in its contention that cl 35 prohibits the proposal.

Prohibition by non-compliance with the relevant LEP objectives 31 A number of the aims of the LEP are relevant to my consideration of this proposition advanced by the Council. These are contained in cll 9 and 12 of the LEP and the zone objectives for the zone in the development control table. The relevant provisions are set out below: 9. Aims of the plan This plan generally aims to: (a) ….; (b) ….; (c) ….; (d) ….; (e) prevent random development and subdivision of rural land which would create uneconomic farming units, destroy the rural landscape, or prejudice mining or extractive operations or future urban development; (f) ….; (g) minimise risks to life and property from natural hazards, particularly bushfire and flooding, by avoiding development likely to be exposed unduly to those risks; (h) ….; (i) ….; (j) ….; (k) ….; (l) ….; (m) ….; and (n) encourage further development of tourism and recreational facilities, while minimising any adverse impact on the natural attractions and amenity enjoyed by permanent residents. 12. General rural zone objectives The objectives which apply generally to all rural zones are: (a) ….; (b) ….; (c) the protection or conservation of: * ….; * ….; * ….; * ….; * ….; * environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values; (d) the protection of development from significant hazards particularly risks from bushfire or flooding so that development would not be likely to increase those hazards; (e) the location of development in such a way as to avoid creation of road traffic hazards or ribbon development along roads; and (f) ….. Development control table

The objectives are: (a) ….; (b) the promotion of rural tourist facilities which are appropriate for and require a rural location for efficient operation; (c) ….;and (d) the enabling of development for purposes that are: * appropriate in a rural location; * appropriate for agriculturally productive lands used for grazing and cropping ; and * sympathetic with the environmental characteristics of the land.

32 When considering these provisions, it is also necessary to have regard to the definition of tourist facility which appears in clause 4 of the LEP. It is in the following terms: "tourist facility" means an establishment providing holiday accommodation or recreation and includes a boatshed, boat landing facilities, camping ground, caravan park, cabins, convention facilities, hotel, house boat, marina, motel, playground, place of worship, restaurant, shops of an ancillary nature, water sport facilities or a club used in conjunction with any such facilities;

33 At this point, it is pertinent to note that, although there is a definition of tourist facility, there is no definition of the term rural tourist facility as used in the relevant provisions of the land use table applying to this zone as set out above. As a consequence, it is appropriate to consider that the words which follow this term in (b) of the zone objectives, which are appropriate for and require a rural location for efficient operation, inform me of what defines this subclass of tourist facility in addition to the broader definition contained in cl 4 of the LEP.

34 In this instance, it is the equestrian facilities, comprising stables at construction stage 1; equestrian jumping area originally proposed at construction stage 2; and dressage arena originally proposed at construction stage 3 together with the proposed community sporting fields to be constructed at construction stage 2 that were those requiring a rural location for efficient operation. When it was pointed out to Mr Hemmings, counsel for the applicants, that the proposed development would need to satisfy this test at every one of the concept stages, the applicant sought and was granted leave to amend the concept proposal to bring forward the equestrian jumping area and dressage arena to construction stage 1.

35 The consequence of this is that I am satisfied that the amended concept is now one which satisfies classification as a rural tourist facility as its equestrian facilities are clearly ones which are both appropriate for and require a rural location for their efficient operation. The proposed playing fields are undoubtedly ones which are appropriate for a rural location, I do not consider that they require a rural location for the efficient operation and, as a consequence, these proposed facilities, by themselves, would not satisfy all go toward satisfaction of this two step proposition.

36 It therefore follows that the proposal does not breach objective (b) and the first dot point of objective (d) of the zone objectives.

37 As the Council does not suggest that the site constitutes agriculturally productive lands, the second dot point of objective (d) of the zone objectives is not applicable.

38 Whether or not the proposal is sympathetic with the environmental characteristics of the land and thus satisfies is the third dot point of objective (d) of the zone objectives interdependent with the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP.

39 As I understood the evidence of Mr Moore, planner for the Council, he accepted the proposition put by Mr Hemmings that, if the proposal satisfied the final dot point of objective (c) of the general objectives for rural zones, it could also satisfy the third dot point of objective (d) of the zone objectives. Even if I have misunderstood Mr Moore's evidence, I consider that this is the correct approach to take.

40 For the proposal to fail absolutely on this basis, that is a failure to satisfy the final dot point of objective (c) of the general objectives for rural zones, the proposal will must be one which is incapable, in any fashion, of satisfying the objective. The present process undertaken by the Court in development appeals is to address not merely the question of whether a proposal warrants approval in the form brought to the hearing but whether, with modification within the framework of that proposal without rendering the proposal so radically different that it constitutes a new proposal, such a modified proposal could be approved.

41 In the present instance, as is obvious from the discussion below in dealing with the merit assessment of this proposal, I am satisfied that in its present form it does not sufficiently satisfied this objective so as to warrant approval. Consideration, on the merits, of this proposal against this objective and against the provisions of the DCP, however, do satisfy me that a modified proposal which is not so radically different as to constitute a new proposal is capable of being given approval. As a consequence, I do not consider that this objective in the general zone objectives is sufficiently transgressed to warrant refusal on this basis.

42 This leads me to return to the general aims of the plan. For the reasons enunciated above, I have concluded that the zone objectives, including by reference to the general rural zone objectives, are not sufficiently transgressed to warrant refusal and, as a consequence, a similar position applies to aim (a) of the aims of the LEP in cl 9.

43 As is obvious from the merit assessment below, I do not consider that aim or other of the aims of the plan in cl 9 are breached by the proposal.

44 For the reasons set out under the separate heading of bushfire protection, I am satisfied that the concept proposal does not fall foul of objective (d) of the general objectives for rural zones contained in cl 12 of the LEP.

45 For the reasons set out under the separate heading dealing with pedestrian crossings of Blackhead Road in the vicinity of the entrance to the site, I am satisfied that the proposal does not fall foul of the first element of objective (e) of the general objectives for rural zones contained in clause 12 of the LEP.

46 As the proposal has a separate single access point to Blackhead Road, I am satisfied that the proposal does not fall foul of the second element of objective (e) of the general objectives for rural zones contained in clause 12 of the LEP.

47 There is, therefore no basis upon which I am satisfied I could conclude that the proposal is prohibited.

Merit assessment against the relevant LEP objectives and provisions of the Council's development control plan

48 In addition to the relevant matters contained in the LEP extracted above, a number of provisions of the DCP are also relevant. The first of these is contained in 4.14 rural tourist facilities. It reads: 4.14. Rural Tourist Facilities

Council may approve a tourist facility in a rural location where it complies with zone objectives. In the case of development listed within Schedule 4 of Greater Taree Local Environmental Plan 1995 Council has to be satisfied no adverse impact on the safety and efficiency of the arterial road and Pacific Highway will result from the proposed rural tourist facility.

A facility merely providing accommodation would not be considered appropriate in a rural location. Council however may consider approving a tourist proposal having accommodation where it requires a rural location, but only where the accommodation is secondary to the tourist facility on the site.

50 As to the second element of the first paragraph, tourist facilities are listed in schedule for the LEP but, for reasons which will be obvious upon reading my discussion concerning pedestrian safety appearing later in this decision, no adverse impacts on Blackhead Road arise from the proposed facility from the perspective of pedestrian safety. Given the proposal for incorporation of a roundabout at the intersection of access to the site and Tallwoods estate with Blackhead Road, I do not understand that the Council suggests that there will be any adverse traffic impact on the safety and efficiency of Blackhead Road.

51 As earlier observed, the proposal has been amended to bring forward the totality of the equestrian facilities for the site into construction stage 1. The consequence of that is that, for that stage, the accommodation which will be derived from construction stage 1 will be secondary to the tourist facility on the site at the completion of construction stage 1.

52 The incorporation of the proposed community ovals and community centre in construction stage 2, when taken in conjunction with the equestrian facilities for construction stage 1, again render the accommodation as secondary to the tourist facilities.

53 I defer, for the time being, comment on whether or not the addition of a further accommodation at construction stage 3 would result in an overall development where the accommodation is secondary to the tourist facility on the site. I make this deferral because it is necessary, before considering a range of merit matters concerning the additional accommodation in construction stage 3 leads to an assessment of whether the design, overall, for the accommodation in the north-western quadrant of the proposal is acceptable or not. If it is to be modified, in any way, by removal of sites to any significant extent, the extent of that removal also impacts on consideration of whether or not the totality of the proposal should be regarded as satisfying the second paragraph of 4.14 of the DCP.

54 The DCP also includes provisions dealing with development which is inconsistent with zone objectives. This is contained in part 10 of the DCP. The relevant provisions, generally, and specifically with respect to the 1(a) Rural General zone, are as follows: 10. DEVELOPMENT INCONSISTENT WITH OBJECTIVES

LEP 1995 provides that for most zones, development is prohibited if it is inconsistent with zone objectives, depending on the particular case, however, provision lies within LEP 1995 to enable development which may not satisfy all zone objectives to be consented to subject to the processes identified here .

Council must not consent to development unless it is satisfied that it is consistent with all relevant zone objectives. The following development in each zone is considered inconsistent with at least some of the zone objectives and Council may not give approval unless special circumstances indicate otherwise, as addressed in the environmental impact report.

The list is not exhaustive. Council will consider all cases on merit and have regard to zone objectives, LEP provisions and specific site and locality considerations. If supported by the merits assessment of the proposed development, Council may decide that certain development is consistent with any relevant zone objective.

Activity centres; bulky goods sales rooms or showrooms; business premises; industries (other than hazardous industry or activity, home industry or rural industry); medical centres; office premises; residential flat buildings; service stations; shops (other than convenience stores and arts and craft shops); warehouses or distribution centres.

55 Finally, the Council asks me to have regard to two strategic documents. The first is entitled Hallidays Point Development Strategy and is dated June 2000. The broad objective of the document is contained in Part 2 - Thrust of Strategy which reads, relevantly: The existing character of the locality is special. To recognise and protect this character, Council in conjunction with representatives of the Hallidays point community, prepared a draft Development Study and Strategy. The Strategy was designed to set the limits for future urban and rural residential expansion and show the preferred pattern of growth.

The Central idea of the Development Strategy adopted by Council, was to maintain a separate identity and character for the villages of Blackhead, Red Head, Diamond Beach and the Rural Hinterland. The settlement pattern to achieve this and provide for growth is diagrammatically represented in the "Exhibited Strategy" Figure.

The basic principles include:- * maintain physical separation of each village; * provide spatial limits to each village; * designation of appropriate land uses in the areas between villages to emphasise the natural and scenic qualities of these areas; 56 Reproduced below, with the addition of a green ellipse I have inserted marking a proposed bicycle path (a proposed bicycle path which is discussed later in this decision) and red dots on each of the allotments subject of this appeal, is the "Exhibited Strategy" Figure referred to above. 57 On 17 May 2006, the Council adopted a document entitled Hallidays Point Conservation and Development Strategy Review 2006. Although I do not consider that anything turns on it, the front cover of this document is prominently marked Not Endorsed by Department of Planning.

58 At its commencement, the document sets out a six-point vision for Hallidays Point. This vision is in the following terms: o A sustainable and harmonious natural and built environment o Separate villages of Blackhead, Red Head, Diamond Beach and Tallwoods, and the surrounding rural hinterland each with their own identifiable character and features o High quality and protected natural environment o Community and service infrastructure which meets the needs of existing and future residents and tourists in an equitable and sustainable manner o Quality, well located public open spaces o Effective and environmentally friendly transport network 59 The 2006 document includes a revised version of the Strategy Figure published in the 2000 document. A copy is also reproduced below with a similar green marking inserted by me to delineate the proposed bicycle path and red dots on the allotments subject of this appeal.

60 The relevant differences between the strategic diagrams contained in the two documents is that additional development is proposed for the Tallwoods village in its south-west and south-eastern corners and two additional SEPP Seniors Living sites, to the east of the site in this appeal, have been identified along the Blackhead Road between Blackhead and the Lakes way intersection.

61 The proposed SEPP Seniors Living land to the west of (but also including portion of the site) remains as marked in the 2000 Strategy Figure.

62 Mr Hemmings put to me that I should give little weight to these documents as I could not be satisfied about the basis upon which they had been developed. I am not prepared to do so. Taking each of these documents at its highest, I do not consider that the ongoing theme of these two Strategic Figures is antithetic to the applicants' position. Indeed, the transition from the first diagram to the second diagram makes it clear that the Council is prepared to consider significant additional potentially intensive development to the west of the villages - the protection of whose identity and character is stated to be a central element of both strategies.

63 Whilst it is necessary, particularly in the context of the 2006 diagram, to consider the extent to which the proposal might impact on the harmonious natural and built environment or on the identifiable character and features of the rural hinterland surrounding the Tallwoods village, I do not consider that this consideration, in reality, requires anything further than a proper consideration of the provisions of 4.14 of the DCP when assessing the context of this proposal.

64 As early as set out, the provisions of 4.14 of the DCP are in the following terms: Council may approve a tourist facility in a rural location where it complies with zone objectives. In the case of development listed within Schedule 4 of Greater Taree Local Environmental Plan 1995 Council has to be satisfied no adverse impact on the safety and efficiency of the arterial road and Pacific Highway will result from the proposed rural tourist facility.

The design of rural tourist facilities should be appropriate for the rural environment. They should avoid an intensive layout, with liberal open space around buildings for tree planting, landscaping and carparking. A less formal layout may be more acceptable in rural areas. 65 As to the emphasis I should give to this element of the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

66 However, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

67 As indicated at (49) above, the first sentence of the first paragraph of 4.14 of the DCP is, in my view, inextricably tied up with satisfaction of the provisions of the third paragraph of 4.14. This, in turn, links, in my view, with the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP, namely the protection or conservation of environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values.

68 The consequence of this is that consideration of the design of the proposed rural tourist facility is to be examined in the context, particularly, of how the proposed facility will be seen when observed from outside its own boundary. There are, in this regard, two relevant locations. The first is from the land immediately to the west designated for a future SEPP Seniors Living development. The second is from the public and private domain of locations, which overlook the site, in the Tallwoods estate.

69 In each instance, it is obvious that the elements of the proposal which will be able to be viewed from these locations are those in its north-eastern corner effectively comprising virtually all (if not all) the development proposed for construction stage 3 and some, if not all, of the western tourist sites elements and community ovals proposed for construction stage 2.

70 From Tallwoods, any development in this area on the site will also be seen in the context of a changed development pattern when, as the Council proposes and anticipates, a SEPP Seniors Living development is constructed to the west. Any viewing from within such a SEPP Seniors Living development will, of course, also be partially informed by the nature of the development from which the observation takes place.

71 Following the amendment in the north-eastern corner along the Blackhead Road frontage noted in (7), the relevant development of tourist sites, in the north-western corner, in construction stages 2 and 3 are shown below (with construction stage 2 marked in yellow and construction stage 3 marked in blue). The hand drawn black boxes and black perimeter road reflect the proposed amended construction noted in (7), whilst the sites with the large X markings in the vicinity of the black boxes and 2 further sites to the lower right, also so marked, reflect the sites which were deleted as part of this amendment.

72 Mr Hemmings indicated that, if I were minded to amend the proposal, minor amendments to some elements of the internal road layout in the portion marked in blue and minor deletion of sites would be the maximum which could be considered appropriate. I do not accept that this is the preferred outcome if a development consent is to be given.

73 The reasons I have reached this conclusion (that a significant modification is necessary to the proposal to render it an acceptable in the context of the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP) follow.

74 The sites in this portion of the proposal provide sufficient space for accommodation, parking of a four-wheel-drive and horse float if desired, and a modest degree of landscaping. They do, however, constitute a largely homogenous pattern of development broken only by the internal roadways and, dividing the blue zone along the line of the bio-swale marked in black, the electricity transmission line and its easement which runs roughly east-west through the site. Even this easement has development bordering it to the greatest extent possible.

75 There is little sense, as envisaged by the DCP of avoiding an intensive layout or providing liberal open space around buildings for tree planting, landscaping and carparking (emphasis added). There is nothing to suggest that a less formal layout has been adopted to render such a facility more acceptable in rural areas.

76 Although there has been some attempt to avoid a conventional grid pattern to the street layout in the proposal and thus avoid a series of gunbarrel strait tourist sites, there are, nonetheless, no significant corridors which will permit any appreciation of this part of the development, when viewed from outside the site, as anything other than one massing of sites. There is no sense of breaking up the layout into clusters that might remove any sense of an intensive layout. This is obvious from the figure above.

77 This element of the proposal, in its north-western corner, in construction stages 2 and 3, if carried through the finality, could not meet the tests in the third paragraph of 4.14 of the DCP. As a consequence, having regard to the fact that this element of the DCP is designed to inform decision-makers as to how the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP can be satisfied, it also follows that the first sentence of the first paragraph of 4.14 of the DCP is also not satisfied. It further follows, therefore, that I cannot be satisfied that the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP is satisfied by the proposal.

78 As a consequence, consistent with what follows from Zhang, as the proposal is not consistent with this element of the general objectives for rural zones in the LEP and also does not satisfy the relevant provisions of the DCP, the development proposed in the north-western corner of the site is not presently acceptable.

79 As earlier noted, during the course of the off-site inspection, a visit was also undertaken for the Diamond Beach North Resort. This development, the constructed portion of which is primarily a former caravan park which has been redeveloped, also includes a number of proposed elements at the western end of the development which the Council says reflects the density of any rural tourist facility development which might be permitted on the site. Any redesign of the proposal to reflect the density levels at the western end of the Diamond Beach North Resort would be so extreme that it would consist of the later discussion on this reasons, constitute constructive refusal of the proposal.

80 In addition, the Council points to the fact that the redeveloped caravan park element of the Diamond Beach North Resort has a significantly lower density with sizes ranging from 288 m² to 225 m² per site compared to the present proposal which ranges from 225 m² to 130 m² per site. Mr Fraser put that, at the very least, sites at the upper end of the Diamond Beach North Resort range were the minimum which might be contemplated for development on the site and, then, at a significantly lower number than presently proposed.

81 I have, therefore, consistent with the approach now taken by the Court in merit appeals, considered whether these defects are capable of being cured and thus render the proposal approvable or whether the proposal should be refused outright as incapable of being rectified without the lodgement of a new and radically different proposal for the Council's assessment.

82 In making this assessment, I need to consider what might be done to render the proposal acceptable when tested against the Council's controls (rather than achieving perfection in design). As a consequence, I have turned to consider what is necessary to satisfy 4.14 of the DCP and the final dot point of objective (c) of the general objectives for rural zones contained in clause 12 of the LEP. For the reasons which follow, I do not consider that it is necessary to achieve the degree of site separation of the western element of the Diamond Beach North Resort which is currently the subject of the undetermined application to the Council. Similarly, for reasons which follow, I do not consider that it is necessary to make changes to the size of the individual sites as I am satisfied that the objectives of the relevant provision of the LEP and of the DCP can be satisfied by a significant alteration to design rather than site size.

83 As a consequence, I have concluded that it is possible to do so but only with the removal of a significant number of sites so as to break this area up into separate, visually discrete precincts. First, a number of sites need to be removed to make the overall level of development, particularly when viewed from Tallwoods, less intense. Second, a number of sites, which includes some of the sites removed in response to intensity, need to be removed in order to break up the proposal into three discrete development areas by providing green corridors running, generally, in an east-west direction.

84 For one of these corridors, advantage can be taken of the existing transmission easement by removing sites along one of its boundaries in order to create a greater degree of separation between the southern and central sections of this element of the proposal. A greater degree of removal is required to separate the central and northern sections of this element of the proposal but some account can be had and benefit given to the applicants from the removal of some of the sites as a consequence of the relocation of the perimeter road.

85 In addition, the sites to be removed from the southern section of the element in construction stage 3, when coupled with the wider corridor and landscaping opportunities to be provided along the northern side of the transmission line easement, will also address, adequately, the question of acceptability of the proposal when viewed from any SEPP Seniors Living development which eventually takes place on the site to the west.

86 Set out below is a diagrammatic representation of the 43 sites, including two of the relocated sites along the northern perimeter, which I am satisfied are necessary to be removed for the proposed development to become one which has a less intensive layout and provides liberal open space around buildings for tree planting, landscaping and carparking. The layout to be granted consent is also a less formal layout. In this context, I am satisfied that the resultant layout is rendered acceptable in the rural area where it is located - particularly when in the long term development context envisaged by the Council in its 2006 strategy layout. 87 Although a somewhat intensive development with sites that have the smallest individual areas is proposed to be located in the north-eastern corner beyond the environmental buffer zone and adjacent to the boundary with the property to the east, I am satisfied that, with the proposed landscaping for this portion of the development, proposed for construction stage 2, it will not be visible from the public domain and can also be shielded, effectively, from the property to the east. As a consequence, although a modestly intensive development, I do not consider, with the implementation of the amendments I have proposed in the north-western corner of the site, coupled with the comparative invisibility of this element, that the protection or conservation of environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values, even when considered in the context of the third paragraph of 4.14 of the DCP, requires any amendment to this element of the proposal.

Bushfire protection 88 The Rural Fire Service has been asked to comment on a version of the concept plan which did not incorporate the alterations to the perimeter road in the north-west corner and which did not set out the three construction stages envisaged to follow from an approval of the broader concept plan. The Rural Fire Service made comments on the basis of the concept plan provided to them and suggested a number of the provisions concerning asset protection zones; water supply and gas and electricity service locations; access; design and construction standards compliance with planning for bushfire protection 2006; and evacuation and emergency management requirements.

89 I have had the assistance of the uncontradicted evidence of Mr Travers, relevantly to this issue, a bushfire expert advising the applicants, concerning issues raised from these comments and other matters which might flow from a proper consideration bushfire matters arising from the staging proposed for implementation of the concept.

90 First, Mr Travers has confirmed that the internal road network proposed for the site is sufficiently wide to accommodate resident vehicles leaving the site and bushfire fighting appliances entering the site passing in opposing directions without hindrance.

91 Second, Mr Travers has satisfied me that there are appropriate open-space locations to which emergency evacuation could be undertaken if necessary.

92 Finally, Mr Travers has given uncontradicted evidence that asset protection zones and other required design elements are capable of being incorporated to the satisfaction of the Rural Fire Service at the detailed design phase which will necessarily attach to each development application for construction stages 1, 2 and 3.

93 As a consequence, I am satisfied that it is appropriate to leave the assessment of detailed compliance (being satisfied that, in principle, compliance is possible) to the assessment of each of the development applications for construction stages 1, 2 and 3.

Cafe and service station 94 Mr Fraser raised the question of whether or not the cafe and service station proposed to be constructed on the western side of the entrance to the site, behind the buffer zone, were ones which were ancillary to the proposed rural tourist facility or constituted separate uses which were impermissible in the zone.

95 It was suggested that I should impose, in any concept consent (if I were to give one), conditions which ensured that these facilities were purely ones which were ancillary to the proposed rural tourist facility's development.

96 It is self-evident from the terms of the LEP that, for these activities to be permissible, they must be ones which dominantly serve the tourist development. Although this is an application to approve the concept plan and thus identify sites where the various elements of the development are proposed to take place, no approval for any works will be given if the concept plan is approved.

97 Detailed development applications, as earlier noted, are required for each of construction stages 1, 2 and 3. It is at these stages that it is appropriate, in my view, to assess whether or not the detailed design proposed for the cafe or service station structures and the level of activity capable of being sustained by them crosses the boundary between ancillary use to a separate and prohibited use. At this stage, although it is necessary for me to determine is whether it would be possible for each of these uses to be carried out in a fashion which was purely ancillary to the tourist development.

98 Nothing advanced by Mr Fraser, in submissions, or any evidence given on behalf of the Council could cause me to conclude that such a design was impossible. Indeed, implicit in the suggestion that I should impose conditions at the concept stage to ensure that this was the case is the proposition that such activities, if sufficiently limited in their eventual operational design, were capable of being ancillary to the tourist facility.

99 I have concluded that I ought not propose any conditions of the nature suggested by the Council and that such consideration is appropriately left to assessment of any detailed design submitted to the Council at the relevant construction stage development application.

Pedestrian safety at the entrance to the site 100 Approval and construction of the proposed rural tourist facility will necessitate the construction of a roundabout in Blackhead Road at the entrance to the site. This roundabout will regulate the traffic flow not merely into and out of the site but also into and out of the Tallwoods estate.

101 The Council is concerned that persons staying on the site may wish to cross Blackhead Road to play golf on the golf course at the Tallwoods estate or to dine at the restaurant in the estate. Further, there may be pedestrians from the Tallwoods estate who wish to patronise the proposed shop and cafe on the site. The Council considers that it is necessary to require the construction of an overbridge or pedestrian subway at or in the immediate vicinity of the entrance to the site to ensure that these pedestrians can cross Blackhead Road in safety.

102 During the course the proceedings, I had the benefit of evidence from two traffic experts, Mr Schultz, on behalf of the Council, and Mr Stewart, on behalf the applicant. The relevant outcome of their evidence was the agreed position that the likely maximum number of persons who would be crossing the road, in either direction, at or in the vicinity of the entrance to the site, in any 24 hour period, would be 50 or less. Some of these persons, on the Council's view, would be pulling golf buggies to or from the golf course. As a consequence, as I understood the position, the Council required the pedestrian facility to be one, whether an overbridge or a subway, readily accessible for such buggies.

103 As I observed at the commencement of this judgement, Blackhead Road is not designated as an arterial road by the Roads and Traffic Authority but, for the purposes of the Greater Taree Local Environmental Plan 1995, by a combination of the definitions in the LEP and the relevant map, it is deemed to be an arterial road. 3000 vehicles per day travel along this road.

104 Given the topography of the land and the need to clear underground pipes in the vicinity, construction of a subway would need to be significantly deep and have lengthy approach inclines to permit its use by golf buggies. It was equally obvious, given the drainage lines on the site and on the Tallwoods estate golf course element that were observed during the site inspection, that such a subway would suffer from serious flooding issues if there were any significant rainfall. Indeed, it is difficult to convey, adequately, in this short description, how obviously hopelessly impractical this suggestion for a subway would be in reality.

105 With respect to the proposal for an overbridge, whether or not incorporating ramps which would permit golf buggies to access it, the likely cost of construction of such a facility is so radically disproportionate to the benefit which would be provided to the small number of pedestrians, on the highest assessment, at or in the vicinity of the entrance to the site, satisfies me that it would be entirely unreasonable to require its construction. As a consequence, there should be no condition requiring the construction of or the meeting of any part of the construction of such an overbridge or subway attached to this approval.

106 The incorporation of pedestrian refuges in conjunction with the construction of the roundabout, as discussed, is an appropriate response to this comparatively insignificant risk to pedestrian safety. In addition, the requirement that appropriate lighting be provided to the roundabout and associated pedestrian facilities will provide a further pedestrian safety measure which is not unreasonable. Bicycle path 107 The relevant diagrams for each of the two Hallidays Point Strategy documents were reproduced earlier with the cycle pats identified.

108 The 2000 document shows a cycle path along Blackhead Road terminating, on the road at the entrance to Tallwoods estate and turning into that estate. The 2000 document shows, as earlier noted, no development of any significance on the site and certainly no development at all on the site in the vicinity of the endpoint of the proposed cycle path on Blackhead Road where it turns into the Tallwoods estate. It is reasonable to conclude from this diagram that the cycle path was intended to service the Tallwoods estate.

109 The 2006 document shows a cycle path along Blackhead Road terminating some half a kilometre or more before the entrance to the Tallwoods estate. Whilst this may be merely, to be charitable, a transpositional error on the map, nonetheless this map, again, shows no development of any significance on the site and certainly no development at all on the site in the vicinity of the endpoint of the proposed cycle path on Blackhead Road had it still been proposed to turn into the Tallwoods estate (as I am prepared to assume, for the purposes of this assessment, it was properly intended to do).

110 The cycle path has not been constructed except to a comparatively insignificant extent on the outskirts of the Blackhead village.

111 There is no s 94 contributions plan which would require contribution of all or part of the cost of construction in this cycle path by the applicants. The Council has already identified the desirability of this cycle path entirely independent of and unrelated to any development on this site.

112 The evidence of the traffic engineers was that there would be comparatively little likely demand, generated by this proposal, to use such a cycle path.

113 I have concluded that it would be entirely unreasonable to put the totality of the cost burden of the construction of a cycle path, previously identified by the Council as being needed for an entirely unrelated development, on proponents whose facility will generate comparatively little use of such a cycle path if it were to be constructed. As a consequence, there should be no condition requiring the construction of or the meeting of any part of the construction of such a cycle path attached to this approval. Constructive refusal 114 Imposition of a condition which renders the development impossible constitutes "constructive refusal". Toward the end of the hearing, I asked Mr Hemmings, if I were minded to order the deletion of any of the proposed sites, how many might I order to be deleted before that number would constitute constructive refusal. He suggested that the minimum number of permitted sites below which the point of constructive refusal would be reached was 300 sites.

115 I acknowledge that this position was put but it was put without supporting evidence which could satisfy me of the validity of this proposition (contra Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 per Preston CJ at paras 134 et seq where the Chief Judge was provided with evidence on such a proposition in the circumstances of that case).

116 In this instance, I have reached the conclusion that the development should be approved on the basis of removal of a number of the proposed sites where the removal of those sites lowers the number of sites permitted modestly below the level put to me as constituting constructive refusal.

117 As I have no evidence as to the basis upon which the 300 site proposition was put to me, I have reached the conclusion, notwithstanding the fact that I was asked to treat this number as constituting the constructive refusal barrier, that the degree to which I consider further removal is warranted below 300 sites is a sufficiently small departure from that number to warrant granting consent on that basis rather than concluding that the application should be refused outright.

Conclusion 118 As can be seen from the matters discussed above, I have concluded that the concept should be approved subject to formalisation of an amended concept plan giving effect to: o Deletion of the 43 sites identified by the colour yellow with a red central dot in the diagram following (86) above; o Movement, to the south, as agreed by the applicants, of the northern boundary of the forecourt of the service station so that it no longer intrudes into the 40 m buffer zone; and o Relocation of the north-west element of the internal perimeter road and the adjustment of the sites in this area to reflect the sites identified in the diagram following (86) above. 119 In addition, an amended staging plan, coloured onto a copy of the amended concept plan, is required.

120 Finally, as a prerequisite to the making of orders to give effect to this decision, revised conditions incorporating the various matters noted in the course of the decision as either having been agreed or now being required need to be settled between the parties and filed with the Court for incorporation in the orders.

Orders 121 It follows from what has been set out above, that, after the parties take these steps discussed immediately above to give effect to this decision, the orders of the Court are to be: 1. The appeal is upheld; 2. Concept Plan (plan number ………. revision ………. drawn by …………) for a 292 sites rural tourist facility incorporating equestrian facilities, community playing fields and ancillary retail, cafe and service station facilities at Blackhead Road, Hallidays Point, is approved; and 3. The exhibits are returned.

Directions 122 In order to give effect to the decision set out above, I give the following directions: 1. The applicant is directed to file and serve amended concept and staging plans by the close of business on 12 November 2008; 2. The respondent is directed to file and serve revised settled conditions to give effect to this decision by the close of business on 19 November 2008; 3. The revised settled conditions are to be filed in hard copy and electronically; 4. The matter is set down for telephone callover before the Registrar at 10:30 AM on 24 November 2008; and 5. If directions (1), (2) and (3) are complied with, I will make orders in chambers and vacate the callover.

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.

(2001) 115 LGERA 373

At a glance

Court

Decision date

Source

Judgment (138 paragraphs)

Parties

Cases Cited (3)

Cited By (1)