Growth Management Strategy: contention 10 "the proposed development is inconsistent with the existing and future character of the area and is likely to impact on the future Growth of Bargo as depicted in the Council's adopted Growth Management Strategy"
66In order to establish a framework for planning to accommodate a larger population, the Wollondilly Shire Council has prepared a Growth Management Strategy (GMS). In broad terms, the strategy identifies areas for new residential development as well as employment areas, while at the same time preserving the 'rural living 'character of the Shire. The interpretation of the GMS and the weight that should be given to it in assessing the current proposal was the subject of competing evidence and submissions by the parties.
67Two Planning Proposals have been submitted to Council, seeking to create two new subdivisions in the general vicinity of the proposed facility. Council has deferred consideration of these Planning Proposals, pending the outcome of this appeal.
68Development within the areas of the Planning Proposals, or in any other areas where the GMS anticipates growth, might experience adverse impacts from the existence and operation of the proposed facility. The opinion of Mr Bulfin, and other relevant experts (from both parties, including Mr Brown, the Respondent's planning expert) was that any impacts would however, be slight and manageable.
69The GMS is an aspirational document, which will be subject to review and modification over time. The delineation of areas where development might occur is uncertain, and the correct interpretation of the map (Exhibit K) depicting potential development is open to several interpretations.
70The Court accepts the evidence of the experts about the impacts of the development on existing and possible future properties and recognises that the GMS, at this stage in its life, necessarily embodies considerable uncertainty. This is not a criticism of the GMS, but it does mean that in determining the outcome of this appeal the GMS can be given little weight.
71As noted the relevant local planning instrument is the Wollondilly Local Environmental Plan 2011 (WLEP) but in this case the State Environmental Planning Policy (Infrastructure) 2007 prevails to the extent of any inconsistency. The parties have competing views about the weight to be given to the zone objectives under the WLEP 2011 in this case.
72The Council has referred the Court to the decision of Hastings Point Progress Inc v Tweed Shire Council (2009) NSWCA 285 which is a case involving SEPP (Seniors Living) 2004, and inconsistency between the SEPP and the LEP. McColl JA drew the following propositions from the judgment of Basten JA (who was in the minority):
6 Relevantly one can distil from Basten JA's reasons, the following propositions with which I agree:
(a) when any environmental planning instrument is relevant to a particular proposed development, it is required to be taken into account pursuant to s 79C of the EP Act;
(b) in considering whether to grant approval for a development which falls under the SEPP - SL, the consent authority must also take into consideration the matters set out in s 79C(b) - (e);
(c) it thus follows that the fact that a development proposal to which SEPP-SL applies accords with its provisions does not mandate that it be granted consent;
(d) accordingly, the fact that a consent authority has power to grant consent for a development which accords with the requirements of SEPP-SL does not prevent it, in the exercise of its discretion, from refusing to grant that consent;
(e) the distinction drawn by Preston CJ in Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 referred to by Basten JA at [52] between the existence of the power to consent and the manner of its exercise as reflected in the present case, is reflected in proposition (d) above.
73Applying these propositions to the present case, it is clear that the consent authority has discretion as to whether or not to grant consent to a development application to which SEPP (Infrastructure) applies. In exercising this discretion a consent authority must take into consideration relevant matters in s 79C of the EPA Act.
74Clause 2.3(2) of WLEP states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
75It does not mandate that the consent authority must refuse consent to a development application, which does not meet the zone objectives. As such, cl 2.3(2) does not create any inconsistency between the WLEP and SEPP (Infrastructure), and the parties were in agreement that the Court should have regard to the zone objectives.
76In most cases a category of development which is permissible (with or without consent) in a zone would generally be compatible with the zone objectives. Where a development, which is normally not permissible, is rendered permissible by virtue of a SEPP, then it would not be surprising if the development would not be compatible with some, if not all, of the zone objectives (and with some or all of the aims of the plan in cl 1.2).
77The zone objectives of zone RU1 are given in the Land Use Table below:
Zone RU1 Primary Production
1 Objectives of zone
· To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
· To encourage diversity in primary industry enterprises and systems appropriate for the area.
· To minimise the fragmentation and alienation of resource lands.
· To minimise conflict between land uses within the zone and land uses within adjoining zones.
· To provide for a range of land uses (including tourism-related uses) that support the agriculture industry.
· To provide areas within which the density of development is limited in order to maintain a separation between urban area
78In oral evidence, Mr Seton elicited from the Applicant's planner, Mr Bulfin, an agreement that the proposal is inconsistent or not compatible with the first four of the zone objectives. However, Mr Bulfin said that the proposed land use does support the agricultural industry (zone objective 5) by providing that industry with a waste transfer/ facility. Furthermore, it is not inconsistent with (zone objective 6) because the design of the development ensures that the density of the development is limited to one area of the site in order to maintain a separation between the nearest residence or urban area. Furthermore, Mr Bulfin said that the proposal would maintain separation between urban areas because the site is accessed by a no through road. As such, Anthony Road does not connect multiple urban areas and therefore separation of urban areas will not diminish as a result of this proposal (pp 209 - 214 of the EIS Exhibit D).
79The planners agree that the GMS is not proposing any particular future residential zones but merely identifies in s 7.2.1 "potential residential growth areas". (Exhibit 12 p 2 at [A]). It is a broad policy document, which is to be re exhibited shortly and more than likely amended.
80Therefore, the planners' evidence is that it is not possible to determine with any degree of clarity that the development will adversely affect potential residential growth areas shown on the GMS because it merely indicates possible directions for 'potential residential growth areas'. Only a draft EPI, properly formulated, investigated, exhibited and supported can propose future residential zones.
81Although regard has to be had to the zone objectives, it would be contrary to the intent of SEPP (Infrastructure) and defeat its policy purpose if inconsistencies between the SEPP and the zone objectives were used as a ground to refuse consent to this development. Where the RU1 zone objectives are inconsistent with the objectives of the SEPP then cl 8(1) provides that the SEPP prevails to the extent of the inconsistency. We are therefore persuaded by Mr Howard's submissions on this issue over those of Mr Seton. Having had regard to the RU1 zone objectives we find that the proposal's inconsistency with some of those zone objectives is not a basis for the refusal of this application.