DEVELOPMENT APPLICATION: tourist and visitor accommodation
siting of development
visual impact
zone objectives
Source
Original judgment source is linked above.
Catchwords
DEVELOPMENT APPLICATION: tourist and visitor accommodationsiting of developmentvisual impactzone objectivescompliance with planning controls
Legislation Cited: Shoalhaven Local Environmental Plan 2014Environmental Planning and Assessment Act 1979Rural Fires Act 1997
Texts Cited: Shoalhaven Development Control Plan 2014
Category: Principal judgment
Parties: Wayne Houghton (Applicant)
Judgment (8 paragraphs)
[1]
Mr S Simington
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2016/153920 (formerly 11154 of 2015)
[2]
Judgment
Dr Houghton owns land known as 260 Mount Hay Road, Broughton Vale and authorised the submission of Development Application 14/2381 to Shoalhaven City Council on 5 November 2014 seeking consent for alterations and additions to an existing tourist facility.
The council refused consent on 3 November 2015 and Dr Houghton is appealing that determination.
[3]
The site and its context
The site is legally described as Lot 2 in DP 4498, known as No 260 Mount Hay Road (private) Broughton Vale. It is an irregularly shaped allotment which has an area of 47.3 hectares. Access to the site is from a private road (Mount Hay Road) which includes a right of way over Lot 102 and Lots 103 in DP 786955. Bong Bong Road provides public road access to the site. The right-of-way also serves additional properties to the north of the site.
The site is generally north of the town of Berry and is elevated above that township midway up the escarpment, that area forming part of the Great Dividing Range.
According to the council's Statement of Facts and Contentions (Exhibit 2), the site is used for primary production (beef cattle grazing) and presently contains a primary dwelling with outbuildings and six accommodation units in the form of 5 single bedroom cabins and a converted former dairy bales building, indoor swimming pool and landscaped grounds.
Beyond the curtilage of the residential and tourist development the site is partially vegetated and used for cattle grazing.
Surrounding properties are used for grazing of livestock and rural residential purposes with the escarpment heavily vegetated.
[4]
Background and the proposal
The council has outlined the development history of the site in Exhibit 2. In summary consent was issued in 2001 for the establishment of tourist units on the site on a staged basis. The consents that apply to the site have been modified on a number of occasions. The description of the development on the most recently modified consent is:
To permit the development of Stage 1 (demolition of an existing rural dwelling-house, establishment of a new dwelling and pool) and Stage 2 ("the use of an existing 'Bales" building as a tourist unit and five (5) single bedroom tourist units as illustrated on the plans").
When originally lodged, Development Application 14/2381 proposed alterations and additions to the existing tourist use to convert an existing cabin (Bales building) to a Wellness Centre, construct a new glasshouse and erect a new two bedroom cabin to replace that converted into the Wellness Centre. The council took some time to assess the application and, to address concerns raised by it, the applicant amended the proposal during the assessment phase, in particular, through the deletion of the glasshouse and changing the proposed Wellness Centre to a Gymnasium.
That proposal was finally refused consent by the council, despite an independent planning consultant recommending its approval, on 3 November 2015. The reasons for refusal being:
1. The size and scale of the proposed tourist accommodation unit is located on a prominent ridge, knoll and is contrary to the objectives of the E3 zone of the Shoalhaven Local Environmental Plan 2014.
2. The size, scale and footprint of the proposed tourist accommodation is in excess of the Shoalhaven DCP2014 acceptable solution by 62%.
3. The slope of the subject site of the proposed tourist accommodation is 32% which is greater than the allowable under the Shoalhaven DCP 2014 acceptable solution. 20%.
4. The adverse visual impacts of the proposed tourist accommodation on the amenity and aesthetic values of the surrounding area, residences and landscape qualities of the Berry area.
5. The adverse impact on the public of the proposed tourist accommodation and the proposed development is not in the public interest.
The proposal now before the Court, whilst not properly detailed on the plans tendered (Exhibit B) proposes:
Conversion of a two bedroom tourist accommodation unit that occupies the former dairy bales to a gymnasium for use by guests for the tourist accommodation;
Erection of a 195sqm two bedroom tourist accommodation unit proposed to be sited north of the existing structures.
The conversion of the "Bales" building involves not physical alterations to the building for its use as a gymnasium, equipment would be installed and the existing bathroom made available to users.
The proposed "family cabin" would be located approximately 65m to the north of the bales building adjacent to a cleared paddock area and on a sloping section of the site. To minimise the extent of excavation a new entry road is proposed around 50m north of the existing site entry off the right-of-way. That road runs along the contours of the site. The entry to the cabin would be provided off this new driveway with parking provided for two cars and provision for a fire truck turning bay. Because of the slope of the land the building would be supported on columns with its undercroft open and landscaping proposed across the front of that area to screen the space.
The cabin would incorporate two bedrooms, 2 bathrooms, living room, dining room and kitchen with a total floor area of 195sqm with dimensions of 22m by 13m and a maximum height of 6.8m above natural ground level. It has been sited to take advantage of the panoramic views available from the site towards the coastline. It is to be finished in fibre cement and stone external cladding with 'ritek' roofing. Water storage is to comprise tanks sited beneath the building with a capacity of 4,000 litres. Landscaping comprising plantings and detentions ponds which will also collect stormwater runoff. The colour pallet incorporates grey and black shades.
Additional planting is indicated along the new driveway and adjacent to the parking/turning bays.
The resultant accommodation that would be provided within the tourist facility would remain the same as the proposal is to convert the existing 2 bedroom unit to a gym and construct a new 2 bedroom unit, therefore there would be no change in occupancy of the complex.
The site is zoned E3 Environmental Management under Shoalhaven Local Environmental Plan 2014 (LEP). Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the E3 zone are:
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity.
• To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams.
Clause 2.3(3) is in the following form:
In the Land Use Table at the end of this Part:
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
[5]
The issues
The contentions in the case are:
1. The development is contrary to the Zone objectives in that it would have an adverse effect on aesthetic and scenic values and visual amenity due to the siting of the proposed new tourist accommodation unit which is located on a prominent ridgeline/knoll;
2. The proposal is excessive in size, scale and footprint which exacerbate the visual impact of the proposal;
3. The site is unsuitable for the proposed development by reason of slope of the site upon which the new tourist accommodation unit is proposed;
4. Inadequate car parking for the proposed new tourist accommodation unit is provided;
5. The proposal is not in the public interest.
Due to the need to provide proper plans that reflect the extent of the works now before the Court, the applicant agreed to include in those plans the location of two carparking spaces adjacent to the proposed cabin to address contention 4.
The plans that reflect what consent is sought including the parking spaces were filed on 12 May 2016 and satisfactorily address contention 4.
[6]
The evidence
The hearing commenced on site in the company of the parties and their experts. The location of the proposed cabin was described and identified by stakes that had been inserted in the corners of the proposed structure.
Evidence was then heard from a number of objectors to the proposal on a site known as No 119 Bong Bong Road where the owner had invited the Court, parties, experts and residents to observe the site and hear evidence. That property is located adjacent to the right-of-way that services the site and from where the site could be seen, I estimate is some 1.7 kilometres away.
All persons who gave evidence opposed the development. The issues raised by the objectors are summarised as follows:
219 objections received shows the adverse nature of the development, that it would disadvantage the community and set a precedent in relation to future development within an environmentally sensitive area;
Building would be highly visible on the ridgeline because the eye is drawn to the site of the development which is in the only cleared area on the escarpment when viewed from Berry;
Cumulative impact of the structure would severely diminish the scenic value and visual amenity of the escarpment contrary to the objectives of the E3 zone;
Reflective materials of the existing structures emphasise visibility from the majority of vantage points particularly on a sunny day or at night when lights in all of the buildings are on;
Building is large with a 22m wide frontage and with the fall of the land and roof design appears as two storeys when viewed from the south; combined with the overall breadth of the existing complex the cumulative intrusive impact on aesthetic values is significant;
Proposal is prohibited development because it is not a farm stay but more accurately defined as a "boutique hotel"; existing use rights do not apply;
Development will significantly detract from the land's aesthetic values, contrary to the objectives of the E3 zone;
Other developments on the escarpment have remained inconspicuous at the same elevation with only roofs visible in order to minimise visual impact;
Tourists to Berry value the rural setting and escarpment;
Non-compliance with DCP provisions.
At the conclusion of hearing evidence from the objectors the Court and parties took a view of the site from a number of locations. Those were:
The intersection of Bong Bong Road and Woodhill Mountain Road;
In Woodhill Road adjacent to the depot used for the construction of the Berry Bypass;
Along North Street, Berry;
Outside Berry Public Scholl in Clarence Street.
Expert town planning evidence was heard from Mr L Fletcher for the applicant and Mr S Layman for the council.
They agree that the central issue to these proceedings is the acceptability of otherwise of the visual impact of the proposal having regard to the siting, design, scale and degree of clustering of the development. They also agree that the site is visible from a number of locations around and within the township of Berry, that the site is not identified in the LEP as having special ecological, scientific, cultural or aesthetic values and that the LEP contains a number of provisions specifically dealing with sensitive land.
Further matters agreed is that the proposed building complies with the statutory 11m height control under the LEP, the building contains a maximum of one storey as defined in the LEP and that the slope of the land on which the proposed new accommodation unit is to be constructed exceeds 20% being the Acceptable solution identified in the DCP.
There is no agreement as to whether the site is located on a ridgeline. Mr Layman says it is located on a knoll which is on a ridgeline and the ridgeline is clearly discernible from the viewpoints that he identified in his individual evidence (Exhibit 3). He refers to the definitions in the Macquarie Dictionary and says that a ridge is defined as "1. A long narrow elevation of land, or a chain of hills….2. the long and narrow upper part or crest of something" By this definition the land on which the proposal is sited is a ridge. A Knoll is " a small rounded hill or eminence: a hillock" by this definition the part of the land on which the cabin is located is an eminence.
Mr Fletcher says the site is located on a spur or foothill below the escarpment and main ridgeline of the locality.
They do not agree upon the acceptability of otherwise of the visual impact of the proposal having regard to the siting, scale and degree of clustering.
Mr Layman has included in Exhibit 3 photographs of the site as viewed from a number of vantage points around Berry where he says the development will have an unreasonable visual impact. He says that list is not exhaustive. Because the proposed building is 195sqm in gross floor area, exceeding the acceptable solutions for a single tourist cabin by 120sqm or 62.5% the objective to "conserve rural character and environmental quality of the local area" is for significantly smaller built form, not built form of a size consistent with that which would normally be found in urban areas.
Mr Layman says that whilst the building consists of a single storey of habitable space, its design is such that the habitable storey is set on high foundations which are the equivalent of another storey, contrary to 5.1.1 Acceptable Solution A1.2 which seeks single storey scale. Because land to the south below the proposed building falls away steeply this exacerbates the proposal's visual impact when viewed generally from the south. The cabin has the scale and character of a large suburban dwelling and the elements of a large family home and would not be out of character in an urban release area.
[7]
Conclusion and findings
Whilst not a contention in the case, the issue of permissibility was raised by resident objectors. In accordance with the provisions of clause 2.3(3) of the LEP and the definitions in the Dictionary to that plan, I am satisfied that the development of the tourist cabin would fall within the definition of tourist and visitor accommodation and would not be hotel or motel accommodation or a serviced apartment. The types of development listed in the definition of tourist and visitor accommodation is not exhaustive and therefore can include other like uses. I am therefore satisfied that the proposed cabin would be a use that is permissible in the E3 zone.
This fact is further reinforced in the DCP with a definition of tourist cabin included in the Dictionary to that plan. That definition is as follows:
Tourist cabin means a freestanding building used to provide short-term self-contained holiday accommodation.
Note: Tourist cabin is a type of tourist and visitor accommodation as defined in Shoalhaven Local Environmental Plan 2014.
The proposed development is a freestanding building that would provide short-term self-contained holiday accommodation. It was confirmed during the hearing that the cabins are self-contained.
Clause 2.3(2) of the LEP requires me to have regard to the objectives of the E3 zone when determining the application. Those objectives are at [17] and are addressed below.
Having regard to the evidence, it is clear that the site on which the cabin is proposed is not identified under the LEP as having special ecological, scientific, cultural or aesthetic values. Despite this fact, it is clear that the site is located within an area that is aesthetically pleasing forming a vegetated background to the town of Berry. That view is obviously highly valued by the community.
The site of the proposed cabin is an area that has been historically cleared for agricultural use and this factor makes it appear different to the majority of land on the escarpment which is more heavily vegetated. The development will not alter the way the land is used and, as the areas will be managed to address bushfire risk, I am satisfied that the development will protect and manage that area and will have no adverse physical impacts.
Whilst the building will be visible, albeit from a considerable distance from the site from both private and further from public views, I am satisfied that this factor is not a reason to refuse consent. The development will sit within an existing building group. The materials and colours of those buildings currently exacerbate their visual impact rather than blend into the background. The proposed materials and colours to be used in the proposal are more appropriate and sympathetic to the setting and if consent is to be granted, a condition ensuring the material and colour pallet included in the plans is implemented is necessary.
Therefore, I do not consider that the addition of one building to the existing cluster will adversely affect the scenic aesthetics of the escarpment or detrimentally impact the natural features of the landscape which contribute to the scenic value and visual amenity of the area. That is because of the small scale of the building, the distance from which it can be viewed, the colours and materials that have been chosen, the fact that no vegetation will be removed to facilitate construction of the cabin and that additional planting will be provided around the building to enhance and restore the aesthetic values.
There is no evidence that the development will adversely affect the stability of coastal land forms or impact water quality or ecological values of estuaries and coastal streams.
Accordingly, having regard to the objectives of the E3 zone, I am satisfied that the development is not inconsistent with those objectives.
I accept that the proposed cabin exceeds the Acceptable Solution floor area in the DCP. The acceptable solutions are not mandatory controls or standards and, in accordance with the provisions of S79C(3A) of the EP&AAct, must be flexibly applied. The acceptable solutions are ways, if implemented ensure that the relevant performance criteria are satisfied. This is similar to the deemed to satisfy provisions of the Building Code of Australia. If the control is met then the performance criteria is satisfied. If the control is not met then it is necessary to ensure that the alternate solution satisfies the relevant performance criteria.
The performance criteria under the generic provisions for tourist and visitor accommodation for the siting of development and relevant to the contentions of the case require the visual impact on scenic, natural landscape and adjoining properties to be minimised and not excessively impacted by the scale or built form of the development with materials and build from sympathetic to the character of the area. Areas with identified environmental attributes and/or scenic protection are conserved and protected.
In terms of the acceptable solutions which satisfy those criteria, the experts agree the proposed cabin has a one storey building height as defined in the LEP. There is no contention that the building has not been designed by a suitable qualified and experienced building designer or registered architect. There is disagreement whether the cabin's floor area of 195sqm is a large residential or urban style building however the experts agree that the colours and materials proposed are appropriate. There is disagreement as to whether the building is sited on a prominent ridgeline or knoll but agreement the building would be setback a minimum of 30m from adjoining boundaries and the building and its APZ is located within existing cleared areas and the access road will have minimal impact on environmental and scenic attributes for the area and property.
Having regard to the evidence, I am satisfied that whilst the acceptable solution for the size of the cabin is not met, the visual impact of the proposed cabin is acceptable. It is sited on an existing cleared area and it is that factor that makes the development visible. The fact that the building will be visible does not mean that it is unacceptable. I accept the methodology used by Mr Fletcher when evaluating the extent of visual impact and agree that it is a matter of magnitude and sensitivity. The proposed building will be an addition to an existing building cluster within the cleared area with that cleared area towards the top of the escarpment.
It is the fact that the area is cleared rather than if it is a ridgeline or knoll that makes it visible however I do not consider that the development will be so prominent that it would be unacceptable give the existing built form and location of the development well removed from public vantage points. Whilst the site may appear as a ridge when viewed from particular locations within private properties, I do not consider the visual impact of the cabin would be excessively impacted by the scale or built form of the development and that there are no adverse environmental or amenity impacts to neighbouring properties. For these reasons, I am satisfied that the DCP performance criteria are met.
The council has assessed the geotechnical report submitted with the application and does not contend that the provisions of clauses 7.2 and 7.7 of the LEP are not met, only the DCP acceptable solution is not. That requires the construction impacts on the environment and potential for landslip are minimised. In this regard I rely on the geotechnical report and the council's assessment report that has analysed these matters and found them to be acceptable subject to appropriate consent conditions. The development has been designed to minimise the extent of cut and fill on the site and whilst not a split level design, I do consider that the use of the support columns does reflect "pole frame construction".
The fourth contention relates to parking and due to the fact that proper plans had not been provided that reflect the development sought, parking details have now been shown on the plans filed with the Court on 12 May 2016 I am satisfied that the location and siting of those spaces is appropriate and provides sufficient area for turning a fire truck despite the turning path not being properly represented on those plans.
The final contention relates to the public interest. In regard to the first particular, I consider the site is peculiar to others along the escarpment in that it contains an existing tourist facility on a cleared area with the buildings visible from a distance. For that reason I do not consider that approval of the additional building would create a precedent to future development within the locality.
Nor do I consider that the number of submissions received to a proposal is, on its own, a reflection of the public interest. I will address the issues raised as required by S79C(1)(e) of the EP&AAct. I also note that these issues were well canvassed in the assessment report prepared for the council by its independent planning consultant which reached similar conclusions to those that I have made above.
I have addressed the permissibility, zone objectives, visual impact of the development and DCP acceptable solutions provisions above and find it to be acceptable. I agree that the materials of the existing buildings on the site emphasise those structures and understand that the council could address that issue through existing consent conditions. That is a matter for the council.
I do not consider the size or scale of the building in its particular location to be so large that it would adversely affect the aesthetic values of the area. The building cluster forms a very small part of the scenic escarpment and the cabin has been designed so as not to be intrusive as required in Chapter G1 of the DCP.
For these reasons and those outlined previously in my assessment of the proposal I do not consider that consenting to the development would be contrary to the public interest.
In accordance with the Directions made at the end of the hearing the parties have filed plans that reflect the development for which consent has been sought and agreed conditions of consent. I note that conditions 21 and 32 do not adequately reflect the agreed colour schedule and I have amended those conditions accordingly.
The Orders of the Court are:
1. The appeal is upheld.
2. Development Application 14/2381 for alterations and additions to an existing tourist facility at Lot 2 in DP 4498, known as No 260 Mount Hay Road (private) Broughton Vale is approved subject to the conditions in Annexure A.
3. The exhibits, other that exhibits A, B and 2, are returned.
Sue Morris
Commissioner of the Court
11154 of 2015 Morris (C) (68.9 KB, pdf)
[8]
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Decision last updated: 26 May 2016
Tourist and visitor accommodation is permitted with consent in the E3 zone however Hotel or motel accommodation and Serviced apartments are prohibited. The Dictionary to the LEP provides the following definitions:
hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that:
(a) comprises rooms or self-contained suites, and
(b) may provide meals to guests or the general public and facilities for the parking of guests' vehicles,
but does not include backpackers' accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.
Note. Hotel or motel accommodation is a type of tourist and visitor accommodation - see the definition of that term in this Dictionary.
serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents.
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.
It is common ground that the proposed tourist cabin would fall within the definition of tourist and visitor accommodation as it provides temporary or short-term accommodation on a commercial basis and is permissible with consent in the E3 zone. It is also agreed that the tourist cabin is not hotel or motel accommodation or a serviced apartment.
Clause 4.3 of the LEP contains development standards for height of buildings and, according to the relevant map, a maximum building height of 11m applies to the site. The proposed tourist cabin has a maximum height of 6.8m so is well below that standard. There are no floor space ratio development standards applying to the site.
Clause 5.9 of the LEP applies to Preservation of trees or vegetation. No trees are proposed to be removed under the application. As the development is Integrated Development pursuant to Section 91 of the Environmental Planning and Assessment Act 1979 (EP&AAct), a bushfire safety authority from the NSW Rural Fire Service (RFS) pursuant to S100B of the Rural Fires Act 1997 was required. That authority was issued by the RFS on 3 September 2015 and requires the management of an asset protection zone (APZ) around the proposed cabin. That APZ is wholly located within the existing cleared portion of the site and, according to the evidence provided during the site view, no trees are to be removed and no change to any vegetation is required to satisfy the conditions of the authority.
Clause 7.2 applies to earthworks and is in the following form:
7.2 Earthworks
(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
(2) Development consent is required for earthworks unless:
(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
Clause 7.7 is in the following form:
7.7 Landslide risk and other land degradation
(1) The objective of this clause is to maintain soil resources and the diversity and stability of landscapes, including protecting land:
(a) comprising steep slopes, and
(b) susceptible to other forms of land degradation.
(2) This clause applies to the following land:
(a) land with a slope in excess of 20% (1:5), as measured from the contours of a 1:25,000 topographical map, and
(b) land identified as "Sensitive Area" on the Natural Resource Sensitivity - Land Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any potential adverse impact, either from, or as a result of, the development in relation to:
(a) the geotechnical stability of the site, and
(b) the probability of increased erosion or other land degradation processes.
(4) Before granting consent to development on land to which this clause applies, the consent authority must be satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
(5) In this clause, topographical map means the most current edition of a topographical map, produced by Land and Property Information, a division of the Department of Finance and Services, that identifies the Council's local government area and boundary.
As the land where the proposed tourist cabin is to be located has a slope in excess of 20%, the provisions of subclause (3) are relevant to the determination of the application. The applicant has provided the council with a geotechnical report which it considered and found satisfactory. There is no contention that the proposal would adversely impact the geotechnical stability of the site or increase erosion or other land degradation. I accept that evidence.
The site is not identified as an item of environmental heritage nor in the vicinity of a heritage item.
The portion of the site the subject of the application is not identified on the Scenic Protection map or the Terrestrial Biodiversity Map or in proximity to a watercourse or riparian area and therefore the provisions of clauses 7.5, 7.6 and 7.8 of the LEP are not relevant to the determination of the application.
Shoalhaven Development Control Plan 2014 (DCP) applies to the site. Chapter 1, Clause 7 of the DCP explains how the DCP applies to the development and states in part:
Any application for development in the Shoalhaven LGA will need to address the provisions contained in this DCP. Throughout this DCP you may find a combination of Objectives, Mandatory Controls, Performance Criteria and Acceptable Solutions.
Objectives: For each Section or topic of relevance, objectives will clearly state what Council seeks to achieve once the Controls or the Performance Criteria are met.
Mandatory Controls: Are specific, prescriptive measures required for achieving the desired objectives.
Performance Criteria: Identify how a development should perform so that the desired objectives can be achieved.
Acceptable Solutions: Indicate how the development can achieve the desired
performance and objectives.
Clause 11 of Chapter 1 provides for variations to provisions in the DCP and is in the following form:
The DCP aims to allow flexibility in the application of such development controls to promote innovation and design excellence. Council may consider variations to the requirements of the Shoalhaven DCP 2014 in certain circumstances. In special circumstances, flexibility can produce improved and innovative solutions for particular sites.
The 'acceptable solutions' are provided as examples of what is considered acceptable for the respective performance criteria and objectives. Council can consider alternative solutions in certain circumstances provided the objectives and performance criteria are met. Justification in the form of a "Variation Statement" demonstrating how the objectives and relevant performance criteria will be achieved must be provided with the application.
The Variation Statement must address the following matters:
a. The control being varied;
b. The extent of the proposed variation and the unique circumstances as to why the variation is being sought;
c. Demonstrate how the relevant objectives and performance criteria are being met with the proposed variations; and,
d. Demonstrate that the development will not have any additional adverse impacts as a result of the variation.
The Variation Statement must be contained within the Statement of Environmental Effects (SEE) that accompanies the development application, and is to be supported by other documentation as necessary. This may include but not be limited to: a detailed site analysis, supporting expert reports, photographs, plans, engineering details etc.
The application did include a Variation Statement.
Other relevant provisions are contained in Chapters G1 Site Analysis, Sustainable Design and Building Materials in Rural, Coastal and Environmental Areas; G7 Waste Minimisation and Management Controls; G8 Onsite Sewage Management and G21 Parking and Traffic.
The objectives of Chapter G1 are to:
i. Consider the constraints and opportunities of the site for the proposed
development.
ii. Ensure compatibility between the site and the proposal.
iii. Maximise the potential for energy efficiency and conservation in building design.
iv. Minimise overshadowing impacts of a development on adjoining dwellings.
v. Preserve solar access to north facing solar collectors serving adjoining dwellings e.g. solar hot water panels, photovoltaic cells.
vi. Ensure development is compatible with the natural landscape and any identified natural hazards.
vii. Ensure buildings are constructed of such materials and finishes and are not intrusive upon the landscape.
viii. Ensure that views from public road, public places and private properties are protected from highly reflective building materials.
Chapter G15 applies specifically to Tourist and Visitor Accommodation and includes provisions for tourist cabins which are defined in the DCP as:
Tourist cabin means a freestanding building used to provide short-term self-contained accommodation. NOTE: Tourist cabin is a type of tourist and visitor accommodation as defined in the Shoalhaven Local Environmental Plan 2014.
The objectives of the Chapter are:
i. Provide development guidelines for bed and breakfast accommodation and tourist development in rural areas.
ii. Conserve the rural character and environmental quality of the local area enjoyed by residents of, and visitors to Shoalhaven.
iii. Address issues of cumulative impact and ecologically sustainable development.
iv. Encourage innovative, well-designed, quality development which will support and enhance tourism.
v. Encourage sustainable design and eco-tourism.
vi. Encourage tourist facilities with a range of support infrastructure.
vii. Protect the amenity and privacy of adjoining residents.
viii. Provide opportunities for a range of tourist accommodation in rural areas.
ix. Ensure that the density of development in a particular locality is appropriate to the constraints of the land and is sustainable in the long term.
x. Discourage permanent occupation of development approved for tourism purposes.
xi. Provide management guidelines for tourist accommodation.
xii. Provide guidelines for community title subdivision.
xiii. Maintain the agricultural potential and prevent fragmentation of rural land.
xiv. Recognise the risk of natural hazard in some areas and ensure that development is designed and located to minimise this risk.
xv. Ensure vehicular access is safe and adequate for the scale of the proposed development.
xvi. Conserve and complement any natural or heritage characteristics of buildings and places.
Clause 5 of Chapter G15 is particularly relevant to the contentions in the case with the following relevant generic provisions:
Performance Criteria Acceptable Solutions
P1.1 Visual impact on scenic, natural A1.1 The floor area of a single tourist
landscape and adjoining properties cabin does not exceed 120m2.
is minimised.
P1.2 Visual impact is not excessively A1.2 The building does not exceed one
impacted by the scale or built form of storey in height.
the development.
P1.3 Materials and built form are A1.3 The proposal is designed by a
sympathetic to the character of the suitable qualified and experienced
Area. building designer or registered architect.
A1.4 Large residential or urban-style
buildings are avoided and your
application includes a schedule of
materials and colours that will not cause
unacceptable visual impacts.
P2 Areas with identified environmental A2.1 Buildings are designed to
attributes and/or scenic protection are complement the rural landscape and the
conserved and protected. and the attributes of the property, the
site analysis must demonstrate:
• Buildings are not located on prominent ridgelines or knolls.
• Buildings are setback a minimum of 30m from adjoining boundaries.
• Buildings and their asset protection zones are located in existing cleared areas.
• Access roads and power lines have minimal impact on environmental and scenic attributes for the area and property.
Other provisions relevant to the contentions are Performance Criteria P8 that requires "construction impacts on the environment and potential for landslip are minimised". The Acceptable Solutions include:
A8.1 Development is not located on slopes exceeding 20%.
A8.2 Development is related to the slope of the land and is split design or pole frame construction.
Note: A geotechnical report may be required.
Clause 5.1.4 Protection of Amenity contains the following Performance Criteria and Acceptable Solutions relevant to the contentions:
P12 To conserve the rural character of a A12.1 The minimum setback for tourist
locality and the amenity enjoyed by local related development including tennis
residents and neighbouring properties is
preserved courts and swimming pools are
setback 30m from adjoining property boundaries.
A12.2 Development is grouped to minimise environmental and amenity impacts.
A12.3 A development application includes a landscape plan demonstrating appropriate screening to visually protect the surrounding dwellings and public roads.
A12.4 any external artificial lighting should be suitable designed, located and orientated to minimise impacts to adjoining properties.
The existing development consisting of a "farmhouse", 5 units, a pool house, parking area and ancillary buildings are clustered on the southern portion of the site. The proposal is approximately 65m from the nearest existing building, has a separate access driveway and new entry from Mt Hay Road reinforcing the sense of separation both visual and physical from the existing building group. The proposal is not designed and sited to complement the landscape and minimise impacts on visual amenity from public place and would be visible from a number of points in and around Berry.
Mr Layman then identifies a number of locations from where the development would be visible and rates the impact from "not significant" to "highly visible" and "prominent". He says overall the site is most visible and the proposed development would be most visible from Woodhill Mountain Road and Bong Bong Road in Mount Broughton and North Street in Berry. Grouping the cabin closer to the existing buildings on the site and hence at a lower RL would in combination with a lower set design, significantly reduce the visual impact of the development and better meet the objectives of the zone.
He says the slope of the land on which the proposed cabin is located on the edge of and partially over land that has a slope in the order of 32% significantly exceeds the 20% control in the DCP G15 Section 5.1.2 Acceptable Solution A8.1. The steepness of the land and the design of the proposal on very high foundations provides a poor relationship to the natural topography of the land that is not reflective of rural character sought by tourist and visitor accommodation objectives and not consistent with the single storey scale sought. The visual impact of the elevated design when seen from the south is exacerbated by land falling steeply away.
In regard to the public interest, Mr Layman says there is land in the escarpment area of a not dissimilar nature to the site and there is a public interest in consistent application of the LEP and DCP controls to create certainty of outcomes throughout visually sensitive areas and maintain integrity of planning controls that seek to produce those outcomes.
Mr Fletcher says both the magnitude and sensitivity of the different viewpoints identified by Mr Layman vary widely but overall the visual impact of the proposal is acceptable. Because the proposed construction was sited in and around the curtilage of the established tourist accommodation structures, the proposed new building would not require the removal of vegetation and the cabin was to be finished in darker toned colours to blend with the landscape the visual impact would be minimal. That is because the structures are not sited on a prominent ridge or knoll and would blend with the landscape which continues to rise up behind the development to provide a backdrop so that the new structure would not appear on the skyline. He says that the photographs taken to demonstrate the existing view and resultant view with the cabin from the corner of Woodhill Mountain Road and Bong Bong Road demonstrate the likely visual impact with the location of these photos some 2.7k from the site being one of the closest points from which the proposed building will actually be visible and in order to see the proposed development with any clarity it was necessary to also submit magnified images using a telephoto lens.
Mr Fletcher outlines his assessment methodology in determining view impacts in his Statement of Evidence, Exhibit E and also references the independent report commissioned by the council which also concluded the impacts of the proposal on views was acceptable. Mr Fletcher says that determination of impacts is based on two criteria, the sensitivity and magnitude of the impact. Sensitivity is defined as the sensitivity of a landscape character zone or view and its capacity to absorb change and magnitude is defined as the measurement of the scale, form and character of a development proposal when compared to the existing condition. In the case of visual assessment this also relates to how far the proposal is from the viewer. Based on this methodology, he concludes that whilst the site with its existing cluster of buildings is visible from distant public and private locations, the aesthetic and scenic values of the locality have not been and will not be significantly affected.
The development is proposed on productive agricultural land that is not in its natural state, having been cleared and used for grazing. That land, whilst forming a very small part of a visually attractive backdrop to the township of Berry is not regarded by the council as sufficiently scenic to be afforded protection by either an E2 Environmental Conservation zoning or identification as a Scenic Protection Area under the recent LEP.
Mr Fletcher says the proposal does not introduce a totally new or foreign element into the visual composition of the scenic backdrop. Rather, it adds another accommodation unit to an existing group of buildings that form an existing tourist accommodation facility and a very small component of the wide scenic backdrop to Berry. He says the proposal will not compromise the values of that scenic backdrop and the proposed additional building will not have any significant adverse effect on the aesthetic or scenic values of the locality and therefore is consistent with the first zone objective.
Mr Fletcher notes that the site is not identified in the LEP as having any special ecological, scientific, cultural or aesthetic values however considers it to be in a scenically attractive location and although the site with its existing and proposed buildings is visible from distant public and private places, the scenic values have not been and will not be compromised whether singly by any building or cumulatively by the cluster of buildings and is therefore consistent with the second zone objective.
In relation to the third zone objective, Mr Fletcher notes the site is not in a coastal or foreshore area but is located in the foothills to the north of Berry. The proposed additional facilities rely upon minimal cut and fill and no trees are proposed to be removed to accommodate the proposal. The minor necessary earthworks will not significantly alter the natural landscape and any temporary impacts will be mitigated by revegetation. The design of the new accommodation unit ensures that it sits lightly on the ground, being comparable to pole frame type construction. It will not therefore significantly alter any natural or cultural features of the character of the landscape. The materials of the new accommodation are essentially the same as existing and the visibility of the new building is effectively mitigated by locating the new unit close to the existing buildings thereby only slightly expanding the cluster of existing buildings. That cluster of buildings sits below a heavily vegetated escarpment backdrop which would remain unaltered. For these reasons he says the development will not undermine the protection of the natural and cultural features of the landscape surrounding Berry and is consistent with the third objective.
Mr Fletcher acknowledges the proposed cabin, with a floor area of 195sqm exceeds the 120sqm identifies as one of the Acceptable Solutions in the DCP however this fact does not preclude alternative methods of satisfying the performance criteria. He cites that criteria and says that having concluded that the visual impact will be acceptable noting the closest point from which the development will be visible is approximately 1.7km away and as a consequence there is no adverse visual impact on adjoining properties. The architectural style and proposed materials of the new accommodation unit are modelled on those of the existing buildings with visual impacts minimised by the use of dark tones and non-reflective materials in accordance with council policy. For these reasons he says the proposed building at 195sqm is acceptable and satisfied the performance criteria.
Mr Fletcher says the proposed building is located on a spur or foothill below the main ridgeline and that ridgeline will continue to form a backdrop to the development when viewed from any of the locations where the proposed building will be visible to the public. The fact that the building will be visible from some public roads and places does not render the development unacceptable.
He says the building complies with the DCP provision of one storey and the LEP development standard for building height and would form part of the existing cluster of buildings. Whilst the new building is located to the north of those buildings and thereby extends the group of buildings, it will nevertheless constitute part of that group of buildings when viewed from any public road, place or private properties. The group of buildings occupy a relatively small area of the 47.3ha site, the majority of which will continue to be used for grazing purposes and for that reason he concludes the proposal meets the performance criteria of the DCP.
In relation to the slope of the site of the cabin, Mr Fletcher says that a geotechnical report was submitted in support of the development application that concluded the cabin site was assessed to have low to moderate risk of slope instability and residential development was feasible subject to compliance with the geotechnical recommendations. He says the report confirms the performance criteria that require construction impacts on the environment and potential for landslip are minimised to be met.