Roden v Bandora Holdings Pty Ltd

Catchwords

(2008) 163 LGERA 400 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41(2009) 239 CLR 27 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680(1947) 45 LGR 635 Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147(2013) 201 LGERA 116 Bruce v Cole (1998) 45 NSWLR 163 Coffs Harbour City Council v Arrawarra Beach Pty Limited [2006] NSWLEC 365(2006) 148 LGERA 11 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55(2012) 250 CLR 503 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of [1981] HCA 26(1981) 147 CLR 297 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155(2006) 66 NSWLR 379 Currey v Sutherland Shire Council (1998) 100 LGERA 365 De Luca v Simpson [2012] NSWSC 960(2013) 194 LGERA 83 Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180(2008) 160 LGERA 274 Hawkesbury City Council v Sammut [2002] NSWCA 18(2002) 119 LGERA 171 Hill v Woollahra Municipal Council [2003] NSWCA 106(2003) 127 LGERA 7 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349(2011) 81 NSWLR 638 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23

Judgment (34 paragraphs)

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127 LGERA 7 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Manly Council v Hortis, [2001] NSWCA 81; (2001) 113 LGERA 321 MCC Energy Pty Limited v Wyong Shire Council [2006] NSWLEC 581 (2006); 149 LGERA 59 McMaster v Wagga Wagga City Council [2009] NSWLEC 1237 Milano Convenience Store Pty Ltd v Meqdadi [2010] NSWLEC 29; (2010) 172 LGERA 255 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Rydge v Byron Shire Council [2012] NSWLEC 155 Schroders v Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250; (2011) 211 LGERA 1 Teys Australia Southern Pty Limited v Burns [2015] NSWLEC 1; (2015) 206 LGERA 186 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Woolworths Ltd v Pallas Newco Pty Limited [2004] NSWCA 422; (2004) 61 NSWLR 707 Texts Cited: DC Pearce & RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Colin Roden (Applicant) Bandora Holdings Pty Ltd (First Respondent) Byron Shire Council (Second Respondent) Representation: COUNSEL: Mr F G Kalyk (Applicant) Mr S Nash (First Respondent) Submitting appearance (Second Respondent)

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SOLICITORS: Wilshire Webb Staunton Beattie Lawyers (Applicant) McCartney Young Lawyers (First Respondent) Marsdens Law Group (Second Respondent) File Number(s): 40019 of 2015

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Judicial review challenge to grant of development consent

Mr Roden (the Applicant) commenced these judicial review proceedings under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) seeking an order that development consent no 10.2014.230.1 (the consent) granted to Bandora Holdings Pty Ltd, the First Respondent (the Respondent) on 13 October 2014 by Byron Shire Council (the Council), the Second Respondent, is unlawful and invalid. The Applicant as the moving party has the onus of proof for establishing the grounds of appeal. The Council has filed a submitting appearance in these proceedings.
The consent authorised the use of the existing dwelling and surrounding garden areas on the land situated at 440 Bangalow Road, Talofa (the land) for the purposes of a "rural tourist facility" under the Byron Local Environmental Plan 1988 (the BLEP). The land is located on the northern side of Bangalow Road in an elevated position. The land is located in the 1(a) zone (General Rural Zone) under the BLEP. The consent permitted the erection of a marquee on a ridgeline on the site, inter alia.
On 8 May 2014 the development application (DA) was lodged with the Council. A Development Application Evaluation Report (the Assessment Report) was prepared and signed by Mr Larkin, Council senior planner, and Mr Darney, Council executive manager, on 13 October 2014. The Notice of Determination of a Development Application also dated 13 October 2014 and signed by Mr Larkin granted conditional consent to the DA as provided by s 80 of the EPA Act. One condition referred to the regulation of the use of fireworks on the land. Mr Larkin was the assessing officer of the DA from the time of its receipt with the Council until the time of its determination.
The BLEP has since been substantially repealed. The savings provisions of the Byron Local Environmental Plan 2014 (BLEP 2014) mean that the BLEP continued to apply to the consent.
The issues as raised by the parties at the hearing rather than as identified in the amended summons filed 13 March 2015 were as follows: 1. whether "rural tourist facilities" are permissible with consent in the 1(a) zone (General Rural Zone); 2. if so, whether the proposed use properly characterised is for the purpose of a "rural tourist facility"; 3. whether the Council considered the matters required in cl 31 of the BLEP in assessing and determining the proposed use; 4. whether the Council considered the matters required in cl 34 of the BLEP in assessing and determining the proposed use; 5. whether the Council considered the matters required in cl 75(c) of the North Coast Regional Environmental Plan 1988 (NCREP) in assessing and determining the proposed use; and 6. whether the Council considered the matters required in s 79C of the EPA Act in assessing and determining the proposed use.

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Environmental Planning and Assessment Act 1979

Section 79C of the EPA Act provides: 79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. …

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North Coast Regional Environmental Plan 1988

The NCREP relevantly provides: 12 Development control - impact of development on agricultural activities The council shall not consent to an application to carry out development on rural land unless it has first considered the likely impact of the proposed development on the use of adjoining or adjacent agricultural land and whether or not the development will cause a loss of prime crop or pasture land. … 75 Development control - tourism development (1) The council must not grant consent to tourism development unless it is satisfied that: … (c) the development will not be detrimental to the scenery or other significant features of the natural environment, and …

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Byron Local Environmental Plan 1988

The BLEP relevantly provides: 2 Aim, objectives and guiding principles … (2) Objectives The objectives of this plan are: (a) to enhance individual and community (social and economic) well-being by following a path of economic development that safeguards the welfare of future generations, (b) to provide for equity within and between generations, and (c) to protect biodiversity, and re-establish and enhance essential ecological processes and life support systems. … 9 Zone objectives and development control table … Table Zone No 1 (a) (General Rural Zone) 1 Objectives of zone The objectives are: (a) to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron, (b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character, (c) to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses, (d) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes whilst avoiding conflict between other uses and intensive agriculture, (e) to identify lands (shown hatched on the map) which in the opinion of the council possess a limited capability for more intensive uses or development, (f) to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in road side service areas, (g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry, (h) to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality, and (i) to permit the development of limited light industries which do not pose any adverse environmental impact, (eg software manufacture and film processing), and (j) to ensure that the development and use of land shown cross-hatched on the map adjacent to areas of significant vegetation and wildlife habitat do not result in any degradation of that significant vegetation and wildlife habitat, and that any development conserves and protects and enhances the value of the fauna and flora. 2 Without development consent Agriculture (other than animal establishments); bushfire hazard reduction; forestry. 3 Only with development consent Any purpose other than a purpose specified in item 2 or 4. 4 Prohibited Brothels; bulk stores; caravan parks; commercial premises (other than veterinary establishments); drive-in banks; drive-in take-away food shops; educational establishments; industries (other than light industries using less than 100 square metres of floor area, or home, extractive or rural industries); hostels; hotels; motels; motor showrooms; recreation vehicle areas; residential flat buildings; restricted premises; shops (other than general stores); service stations; surf life saving facilities; tourist facilities; units for aged persons; warehouses. Zone No 1 (b1) (Agricultural Protection (b1) Zone) … 2 Without development consent Agriculture (other than animal establishments); bushfire hazard reduction; forestry. 3 Only with development consent Any purpose other than a purpose specified in item 2 or 4. 4 Prohibited … industries (other than light industries using less than 100 square metres of floor area, or home, extractive or rural industries); … rural tourist facilities; … shops (other than general stores); … tourist facilities; … Zone No 1 (c1) (Small Holdings Zone) … 2 Without development consent Agriculture (other than animal establishments); bushfire hazard reduction; forestry. 3 Only with development consent Any purpose other than a purpose specified in item 2 or 4. 4 Prohibited …rural tourist facility (other than bed and breakfast); … tourist facilities; … Zone No 2 (a) (Residential Zone) … 2 Without development consent Bushfire hazard reduction. 3 Only with development consent Any purpose other than a purpose specified in item 2 or 4. 4 Prohibited … extractive industries; … industries (other than home industries); … rural industries; rural tourist facilities; … shops (other than general stores and shops listed in Schedule 3), … tourist facilities; … Zone No 2 (t) (Tourist Area Zone) … 2 Without development consent Bushfire hazard reduction. 3 Only with development consent … tourist facilities; ... 4 Prohibited Any purpose other than a purpose specified in item 2 or 3. Zone No 4 (a) (Industrial Zone) … 2 Without development consent Bushfire hazard reduction. 3 Only with development consent Any purpose other than a purpose specified in item 2 or 4. 4 Prohibited … commercial premises (other than veterinary establishments and other commercial premises used in conjunction with an industry or situated on the same land as an industry or any other commercial land use included in Schedule 5); … rural tourist facilities; … 31 Development on ridgetops The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted: (a) whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and (b) whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used. 34 Tourist accommodation in rural zones (1) This clause applies to all land within rural zones where rural tourist facilities are permissible. (2) Development for the purpose of a rural tourist facility incorporating holiday cabins on land to which this clause applies: (a) may only be carried out on a single allotment, and (b) must not: (i) exceed a total of 6 cabins, and (ii) be carried out on an allotment with an area less than 20 hectares. (3) The council may grant consent for development for the purposes of rural tourist facilities on land within rural zones only where the council is satisfied that: (a) (Repealed) (b) the proposal incorporates adequate landscaping and screen plantings for visual amenity when viewed from a public road or dwelling-house on other land in the locality, (c) (Repealed) (d) the proposed development will have no adverse effect on the present and potential use, including agricultural use, of the land and of lands in the vicinity, (e) there will be no adverse visual impact of the proposed development on the landscape, (f) the proposed development will be low scale in nature, compatible with the rural environment and of minimal environmental impact, (g) (Repealed) (h) tourist accommodation is to be located so that it may benefit from existing road and physical service infrastructure, and (i) all proposed buildings and other uses are clustered so as to reduce impact on rural amenity, and (j) adequate separation distances will be incorporated to minimise the potential for land use conflict between the proposed rural tourist facility and existing or potentially conflicting land uses, such as intensive agriculture, quarries or animal establishments on adjoining or adjacent land.

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Byron Local Environmental Plan 2014

The objectives of the RU2 zone (rural landscape) provide: Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality. • To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

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Evidence

The Applicant tendered a court book (Exhibit A) that included the parties' respective statements of issues, agreed facts and agreed chronology. An agreed bundle of documents was also tendered (Exhibit B). A legislation folder (Exhibit C) contained the BLEP, the BLEP 2014 and the NCREP.
Exhibit B included the Council's file for the DA and email correspondence including that between Mr Larkin and the Applicant, following the granting of consent. The Council's file comprised of, inter alia, the DA lodged 12 May 2014 attaching a Statement of Environmental Effects (SEE) dated May 2014 undertaken by Newton Denny Chapelle, the planning firm engaged by the Respondent, and two engineering referral and assessment sheets dated 19 June 2014 and 24 July 2014 respectively. A letter to NSW Rural Fire Service from Mr Larkin enclosed the DA for that Service's consideration under the Rural Fires Act 1997 (NSW). The NSW Rural Fire Service replied to this letter on 15 July 2014.
A notification of development application dated 19 May 2014 was sent to owners of property adjoining the land (inviting submissions), which included the Applicant. Submissions were received from members of the public identifying objections on the grounds of noise, traffic, inconsistency of land use, inconsistency with the BLEP, colour of the marquee, inter alia. An email chain of correspondence between Mr Larkin and the Applicant concerning the Applicant's objections, as well as town planner reports commissioned by the Applicant also formed part of the Council's file. Mr Larkin sent an initial assessment of the DA identifying the need for additional information to Newton Denny Chapelle on 31 July 2014. The letter was also sent by email to Ms Vikstrom, an employee at Newton Denny Chapelle.
A file note dated 1 August 2014 by Mr Rushmore, Council team leader environmental services, identified his review of, inter alia, the Noise Impact Assessment by Tim Fitzroy & Associates, consultants engaged by the Respondent, dated 24 April 2014. Mr Rushmore recommended to the planning officer that the Council be provided with additional information for an effective noise management plan. A further file note by Mr Rushmore dated 30 August 2014 recommended that consent be granted subject to the noise conditions identified by him.
On 11, 15 and 28 August 2014 Newton Denny Chapelle responded to Mr Larkin's letter of 31 July 2014 requesting additional information. On 28 August 2014 Ms Vikstrom sent an email to Mr Larkin summarising the Respondent's legal advice that the use of the land falls within the scope of "recreation/recreational" within the "rural tourist facility" definition.

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… 4.4.5 Clause 6.4 - Rural & Nature Based Tourism … Comment: This Statement of Environmental Effects demonstrates that the proposed Rural Tourist Facility is able to operate in a manner which is compatible with the surrounding rural locality. The proposed facility is of a scale that it is able to be managed by the site caretaker in conjunction with a wedding planner. … 4.6 Deemed SEPP - North Coast Regional Environmental Plan … Part 2 Rural Development Division 1 - Agricultural Resources 12 Development Control - Impact of Development Comment: The proposed development involves the use of an existing dwelling and its immediate surrounds as an occasional wedding function venue and associated holiday accommodation. The areas which are to be utilised currently serve no agricultural function and the proposal will not impact on the potential of other parts of the site to be utilised for agriculture in the future. The proposed venue is located approximately 80m from its closest (western) boundary and is buffered from that boundary by a significant clump of bamboo. Accordingly, it is unlikely that the project will impact on production on adjoining lands or the loss of prime crop or pasture land. Part 6 Tourism and Recreation Division 1 - Tourism Development 75 Development Control - Tourist Development Comment: This application demonstrates that: … • no permanent changes are proposed to the external appearance of the building and as such the proposal will not be detrimental to the scenic or natural features of the area; … 4.7 S79C(i) Environmental Planning & assessment Act 1979 - Matters for Consideration 4.7.1 General … 4.7.2 Noise Impacts … 4.7.3 Economic Impacts RPS Australia East Pty Ltd has prepared an economic assessment of the economic impacts of the "destination wedding" industry on the local economy of Byron Shire. … 4.7.4 Other Potential Impacts … (c) the suitability of the site for the development Primary Matters Proposal Does the proposal fit in the locality? The proposed Rural Tourist Facility utilises an existing approved dwelling house and its surrounds. No substantial permanent works are proposed to accommodate the proposed development and accordingly there will be no significant permanent change to the landscape character of the locality. The Operational Management Plan for the premises will ensure that off-site impacts (particularly those associated with noise and traffic) are minimised. Accordingly, it is considered that the proposal is compatible with the surrounding locality.

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(d) any submissions made in accordance with this Act or the regulations Local, State and Federal Legislation The report demonstrates that the proposal is consistent with the current LEP and DCP framework applicable to the site. Council will consider any community or government submissions regarding the proposal as part of the assessment of the application.

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(e) the public interest The public interest The Statement of Environmental Effects and associated technical reports demonstrate that the proposed development is consistent with the current planning framework for the site and is able to operate in a manner which does not adversely impact on the amenity of the locality. The Economic Assessment provided at Attachment 10 demonstrates that the "destination wedding" industry is a significant contributor to the economy of Byron Shire. The venue the subject of the current application will provide an additional venue for such events. Accordingly, the proposal is considered to be in the public interest.

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Conclusion … The grounds for this approval are summarised below: • The proposal is in accordance with the relevant provisions of the Byron Local Environmental Plan 1988 and Byron Development Control Plan 2010; • The proposal involves the use of an existing approved dwelling and only minimal permanent changes are required to the structure to facilitate the development; • All clients of the wedding function venue (ie. the bride and groom) will be required to sign a contract requiring compliance with an Operational Management Plan. The OMP contains a range of measures designed to minimise impacts on the locality; and • The "destination wedding" industry is an important component of the local economy and contributes in the order of $54 million of direct tourism expenditure undertaken by the wedding parties and their guests.

The SEE attached a draft Operational Management Plan (OMP). The draft OMP required clients (ie the bride and groom) to comply with the OMP. Terms of the draft OMP addressed issues such as music and noise, guest parking, rubbish removal and cleaning, inter alia. The draft OMP stated that "compliance with the OMP is a condition of development consent".
Also attached to the SEE was a Council letter to Ms Vikstrom dated 16 April 2014, which commented on the Development Advisory Panel meeting of 3 April 2014 concerning the DA. Under the heading "planning" appeared the comment that the proposed use "as described appears to be consistent with the definition of a rural tourist facility which is permissible within the zone subject to consent". The SEE also attached a report from Tim Fitzroy & Associates dated 23 April 2014 assessing the on-site sewage management system, a bushfire threat assessment report dated 6 May 2014, a fire safety audit report dated 6 May 2014, a traffic impact report dated May 2014, a noise impact assessment by Tim Fitzroy & Associates dated 24 April 2014 and an economic assessment dated 25 March 2014.
The summary to the Assessment Report dated 13 October 2014 relevantly provided: The proposed development seeks consent to use the existing dwelling and surrounding garden areas as a wedding reception up to 26 times a year. The applicants have also proposed to erect a wedding marquee for larger weddings of up to 120 guests, however smaller weddings up to 60 guests will be predominantly held in the dwelling and surrounding pool and deck areas. The house is also to be utilised for tourist accommodation for those attending the wedding. The proposal is defined as a rural tourist facility based on the recent court case between Rydge v Byron Shire Council whereby the Land and Environment Court found that the use of a tourist facility for weddings fitted within the term recreation. The Rural Tourist Facility like the tourist facility definition also includes the term recreation and as such use of the subject premises for a wedding would fall within the gambit [sic] of the definition in the same manner. … Noise, parking access, and location for marquee weddings were issues which were raised from objectors, however it is submitted these have been adequately addressed and conditions of consent have been recommended in terms of land scaping [sic], hours of operation, sound attenuation, number of large marquee weddings and noise management.

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… 3.2 BYRON LOCAL ENVIRONMENTAL PLAN 1988 Zone: Zone No. 1(a) - General Rural Zone Definition: rural tourist facility LEP Requirement Summary of Requirement Proposed Complies • encourage and permit a range of uses that maintains the rural character and environment; Meets zone objectives • minimise/avoid conflicting land use; The proposed development is unlikely to have an impact on the rural character of the locality or the environment. In terms of land use conflict with surrounding farming activities the intermittent use for weddings combined with general buffer distances to surrounding properties, it is considered a land use conflict is unlikely to arise. The existing driveway is to be realigned to improve access and egress from the property, and additional plantings as proposed will enhance the natural environment. The proposal is not inconsistent with the objectives of the zone. Yes • minimise traffic generating uses along main roads: and • development to conserve, protect and enhance the value of the fauna and flora. … Where there is no alternative location for the development Council must consider whether: Clause 31 - development on Ridgetop - existing or proposed landscaping assists in mitigating visual impact; and No permanent structures are being proposed, however the marquee used for weddings will be visual considering its location adjacent to the dwelling house. This is a relatively level area next to the dwelling, and although other sites are available on the property, they would require substantial earthworks to create a level pad. The applicant in mitigating any potential impacts is proposing substantial landscaping with advanced species around the marquee. It is considered the landscaping combined with the intermittent nature of the proposal is a satisfactory response having regards to the provisions of the Clause [sic]. Yes - building design, materials (including the reflectivity) and colours will mitigate adverse visual impact. Clause 34 Tourist Accommodation in rural Areas Maximum 6 cabins rural holiday cabins on a single allotment of at least 20 hectares. Although the proposal is for a rural tourist facility, the clause applies to development seeking consent for stand alone cabins[.] N/A

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Byron Local Environmental Plan 2014 … It is considered the proposal being the erection of a temporary marquee and using the existing dwelling for wedding functions will not impact on using the land for primary production purposes or affect the natural resource base, should the land owner wish to carry out those activities on the land in the future … The property is being used for growing nursery stock, and the development will not affect that area of the property currently under cultivation. In terms of the rural landscape character and scenic landscape, the marquee although only temporary when in use is located on a ridge top. As discussed above the applicant is proposing additional plantings in and around the marquee to assist with screening the marquee when erected, whilst conditions of consent have been proposed in terms of the number of large marquee weddings and hours of operation including noise restrictions to ensure the amenity of surrounding neighbours is not adversely impacted on. In relation to surrounding properties they are being used for rural, rural lifestyle and rural tourism purposes, with grazing of livestock being the main agricultural activity. The proposal incorporates suitable buffers for rural tourism purposes as per the DPI's Living and Working in Rural Areas Guidelines and there is minimal potential for a land use conflict arising with surrounding farms from weddings being held on the land. Further restrictions are proposed in terms of the number of weddings per year and per month, hours of operation, numbers of guests, and sound restrictions to mitigate potential impacts on the amenity of the area. … 3.4 The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality Natural environment: The proposed development is located on cleared land and will not have a detrimental impact on the natural environment. Built environment: No permanent structures are proposed. Conditions imposed limiting time frames for marquees when erected. … Socio-Economic Impacts: A general economic assessment of the local wedding industry has been provided with the application from RPS Australia. … From the above analysis it is clear that the wedding industry plays a major part in the local economy which has a strong reliance on the tourism and hospitality sector. The report notes that for Council when considering the specific development it needs to have regard to the above benefits in balancing up issues of noise, neighbourhood amenity and traffic. 3.5 The suitability of the site for the development … Land Use Conflicts: Noise and amenity issues are the obvious potential conflict as discussed above, however there may be occasions where the property is affected by odour or noise form adjoining farms undertaking other agricultural pursuits. From an inspection of the site grazing of cattle appears to be the dominant activity in the area. In terms of the wedding venue as proposed these are more than 50 metres from adjoining properties which complies with the DPI Guideline - Living and Working in Rural Areas for residential, rural residential and rural tourist accommodation. … 5. CONCLUSION … Noise, parking, access, and location for marquee weddings were issues which were raised from objectors, however it is submitted these have been adequately addressed and conditions of consent have been recommended in terms of land scaping [sic], hours of operation, sound attenuation, number of large marquee weddings and noise management. The proposed development is recommended for approval.

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CONDITIONS OF CONSENT: Parameters of this Consent 1) Development is to be in accordance with approved plans The development is to be in accordance with plans listed below: Plan No. Description Prepared by Dated: … 14/045 Landscape Treatment Plan North West of Dwelling Newton Denny Chapelle 11/9/14 …

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… The following conditions are to be complied with prior to issue of a Construction Certificate … 11) Sound fence A 2.1 metre high sound fence to be erected on the north western side of the marquee to attenuate noise emanating from the marquee when used for wedding functions. The fence is to have no gaps in it, have a minimum length of 15 metres, and can be constructed from timber, concrete block, rock or other appropriate materials which have acoustic deadening properties. Details to be submitted with the construction certificate. 12) Noise Management Plan A Noise Management Plan must be submitted to Council for approval prior to the commencement of the development. The Noise Management Plan must be prepared by a suitably qualified acoustic practitioner and detail the methods that will be implemented for all the operations associated with the private wedding function activity to minimise noise impacts on the nearest affected dwellings. Information should include: a) identification of nearby residences and other sensitive land uses; b) assessment of expected noise impacts; c) detailed examination of all feasible and reasonable management practices that will be implemented to minimise noise impacts; d) strategies to promptly deal with and address noise complaints. This should include any records that should be kept in receiving and responding to any noise complaints; e) details of performance evaluating procedures (for example, sound checks on amplified music or public address systems); f) procedures for notifying nearby residents living within 500 metres of the property of forthcoming weddings, times that they are likely to notice noise emanating from wedding functions and the contact details for the onsite manager for complaints and queries to be made, and responded to. g) reference to all relevant consent conditions including hours of operation and number of guests; h) operational details about the use of any noise monitoring equipment to record sound pressure levels around the property; i) Measures [sic] to ensure speakers within the wedding marquee are faced away from neighbouring dwellings. j) name and qualifications of person who prepared the report. … The following conditions are to be complied with prior to occupation of the building … 28) Sound fence A 2.1 metre high sound fence to be erected on the north western side of the marquee to attenuate noise emanating from the marquee when used for wedding functions. The fence to be erected prior to the issue of the occupation certificate. 29) Landscaping Landscaping and planting to be completed prior to the issue of the occupation certificate and in accordance with the approved plans. Other than the bamboo screen, species to be planted are to be predominantly natives endemic to the North Coast of NSW. 30) Operational Management Plan The Operational Management Plan (OMP) to be amended to reflect the conditions of this approval and finalised prior to the issue of the Occupation Certificate. The final OMP to be submitted with the Occupation Certificate. … The following conditions will need to be complied with at all times 35) Number of Guests Guest numbers are restricted to 120 for marquee weddings and 60 for in-house weddings. … 37) Bus transport for marquee weddings Bus transport to be used and provided for marquee weddings to transport at least 50% of guests to and from the site. … 41) No inference with the Amenity of Neighbourhood The proposed use of the premises shall not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, dust, wastewater or otherwise. In particular: a. The noise level emanating from the use of the premises in accordance with this development must not cause or permit "offensive noise" as defined by the Protection of the Environment Operations Act 1997 to impact upon neighbouring residential dwellings at any time. b. Only clean and unpolluted water is permitted to be discharged to any waters. c. All wastes shall be contained within appropriate containers fitted with a tight-fitting vermin-proof lid. d. All amplified music and public address systems must [be] operated so that they are not audible outside of the boundary of the property between 10.00 pm on any day, and 10.00 am on the following day. e. An approval to operate the on-site sewage management system shall be maintained for the on-site sewage management system. Any failure or overloading of the system which is likely to cause harm to the environment or a risk to public health shall be reported to Council within 24 hours of the pollution incident being detected by any person. f. No private fireworks displays are permitted unless conducted by a licensed pyrotechnician under the Explosives Regulation 2013 and in strict compliance with all NSW Workcover Authority requirements. Neighbours with domestic pets or animals likely to be affected by the loud noise from fireworks shall be notified at least 24 hours before any private fireworks event so that they can make appropriate alternative arrangements. 42) Number of Weddings The number of weddings are limited to twenty six (26) per year with no more than thirteen (13) marquee weddings per year. No more than 2 marquee weddings to be held in any calendar month, and no more than 3 weddings in total to be held in any calendar month. 43) Finishing time for weddings For marquee weddings, all amplified music from Bands, DJ's and the like to cease by 9.30pm with all guests (except those staying on the premises) to have left the site by 10.30pm. For in house weddings, amplified music to cease by 10pm and all guests (except those staying on the premises) to have left the site by 10.30pm. 44) Other Parties, Gatherings and Celebrations Any informal parties, gatherings or other celebrations the following day after or prior to the wedding day to be limited to the hours of 11am to 3pm. No "bucks nights" or "hens nights" approved. 45) Marquees Marquees are to be erected for no more than four days in a row, and are to be removed the day after the wedding. … 47) Use of Dwelling for short term tourist accommodation The dwelling may be used for short term tourist accommodation in association with weddings held on the property. No more than 12 guests to reside in the dwelling at any time.

[17]

Issue 1 - Permissibility under BLEP

The proposed use is for "occasional wedding function venue and holiday accommodation for up to 12 persons attending the wedding". The Council granted consent to the DA for the purpose of "rural tourist facility", an innominate permissible use in the 1(a) zone (General Rural Zone), in which the land is located. The Council considered that the proposed use of the property fell within "recreational ... purposes" in the definition of "rural tourist facility". "Tourist facilities" are a nominate prohibited use in the 1(a) zone.
The amended summons relevantly stated: a) The first respondent sought development consent to permit it to hold weddings and wedding receptions and to provide accommodation for wedding guests on the Land ("the Use"). b) By the Development Consent, the second respondent purported to grant that development consent for the Use, as being for "recreation" permitted under the definition of "rural tourist facility" in Byron LEP 1988. c) "Tourist facilities" are specifically prohibited under the LEP by clause 4 in respect of the General Rural Zone. d) A "rural tourist facility" is a species of the genus of "tourist facilities". e) Accordingly, on its proper construction, in prohibiting the use "tourist facilities", the LEP also prohibits a "rural tourist facility". f) Accordingly, the Development Consent for the Use is prohibited under the LEP and at law. g) Further, the second respondent erred in law in: a. failing to consider the application before it according to the proper construction of the uses permissible under the LEP; and b. failing to consider the provisions of LEP clause 4 in respect of General Rural Zone; and c. determining, without consideration of that matter and without any reasons, that the Use is a "rural tourist facility" in circumstances in which it accepted that the Use was a "tourist facility" within the principles in Rydge v Byron Shire Council [2012] NSWLEC 155, and that the Development Consent could issue in respect of that Use. h) On the proper construction of the LEP and on the facts, the Use was not permissible, such that the Development consent is prohibited under the LEP and at law. i) In the alternative to paragraph 1(h) above, on the proper construction of the LEP and on the facts, the Use was not a "rural tourist facility", such that the first respondent failed to consider the application before it as an application for the use for which consent was in fact sought. In the circumstances, the first respondent failed to deal with the application according to law. j) Further, in so determining the Development Consent, second respond [sic] committed jurisdictional error, such that the Development Consent is unlawful and invalid.

[18]

Applicant's Submissions

On a proper construction of the BLEP the proposed use falls within the definition of "tourist facility", which is a prohibited use in the 1(a) zone. The development is prohibited even if the proposed use also falls within the definition of "rural tourist facility", which is permissible in the zone. The consent is therefore invalid.
The Council, in granting consent, considered that the decision of Lloyd AJ in Rydge v Byron Shire Council [2012] NSWLEC 155 required that the proposed use be categorised as "recreation", and categorised it as "rural tourist facility". This is a misunderstanding of Rydge. That case dealt with a development application for a wedding venue in the 2(t) zone (Tourist Area Zone), which permitted "tourist facilities" with consent. Lloyd AJ found that the proposed use was within "recreation", and therefore within "tourist facilities". Applying Rydge in this case leads to the conclusion that the consent is invalid.
Alternatively, to the extent that Rydge supports the conclusion that the use is "recreation" that decision ought not be followed. It is the context within which the activity is conducted that determines its character, see GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83 at [47]-[49]. The use "rural tourist facility" must have a real "rural" nexus or character. The proposed use does not have such a nexus or character.
"Rural tourist facility" is a species of the genus "tourist facility". On a proper construction of the BLEP, the prohibition of the genus results in the prohibition of the species, see Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 at [16]-[24] and [33]. The definitions of "tourist facilities" and "rural tourist facilities" overlap in parts. Both definitions include reference to recreation or establishments for recreation, with other drafting differences. The words "may include" in the definition of "tourist facilities" indicate a broad reading of that definition, consistent with Rydge. The words "low scale" in the definition of "rural tourist facility" refer only to accommodation.

[19]

Respondent's submissions

The Respondent submitted that the definitions of "tourist facilities" and "rural tourist facility" are mutually exclusive, and do not give rise to any "genus/species" relationship. This can be seen from the use of the words "or the like" in the definition of "rural tourist facility". If it had been the draftsperson's intention that the range of "tourist facilities" was not exhaustive, similar words (eg "or the like") would have been used (see also for example the definitions of "animal establishment", "environmental facilities" and "recreation establishment"). The words "or the like" apply to a wide range of activities, see Milano Convenience Store Pty Ltd v Meqdadi [2010] NSWLEC 29; (2010) 172 LGERA 255 at [51]. Those words were omitted from the definition of "tourist facilities", see Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [43] and [44]. The two definitions thus function independently, and the permissible purpose ("rural tourist facility") cannot be regarded as subsumed into the prohibited purpose ("tourist facility"), see Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147; (2013) 201 LGERA 116 at [28].
A "rural tourist facility" is distinguishable from a "tourist facility" as a "rural tourist facility" solely concerns "low-scale" uses. That is, "tourist facilities" and "rural tourist facilities" are independent, separately recognised and defined land uses in the BLEP. By way of example, in the 4(a) zone (Industrial Zone), "rural tourist facilities" and "tourist facilities" are both expressly and independently nominated as prohibited uses.
That the BLEP distinguishes between "rural tourist facilities" and "tourist facilities" must have been intentional. The only way in which the independent definition of "rural tourist facility" can be given any work to do, in the context of the BLEP and in particular in the 1(a) zone, is to approach the interpretation of those two terms in this manner. That approach is also consistent with a plain reading of the two terms and a contextual analysis, see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39].
On a proper interpretation of the BLEP and the definitions of "rural tourist facility" and "tourist facility", it becomes apparent that the proposal, being characterised as a "rural tourist facility", as defined in the Dictionary to the BLEP, was and is a permissible land use with development consent under the EPA Act, because it has not and cannot be established that the proposal satisfies the definition of a "tourist facility". One should not be diverted by the bare labels of "tourist facility" and "rural tourist facility", but rather should examine the definitions and decipher how the entire BLEP works.

[20]

Proposed Use Permissible as "Rural Tourist Facility"

Whether a development is prohibited by a local environmental plan (LEP) determines whether a council has power to approve it per Sammut at [16]-[29]. The Applicant argues the development approved in this case is a tourist facility, a prohibited purpose in the 1(a) General Rural Zone. The parties agree that unless the use for which the consent was granted was for the purpose of a "rural tourist facility" not "tourist facilities" the consent is invalid.
The issue of whether "rural tourist facility" and "tourist facilities" are mutually exclusive is one of statutory construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. French CJ (in a separate judgment but agreeing with the orders of the joint judgment) stated similarly at [4]-[5]. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of [1981] HCA 26; (1981) 147 CLR 297 at 305. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ.
Section 33 of the Interpretation Act 1987 (NSW) requires a construction that promotes the purpose or object of an Act or statutory rule over one which does not. While I note that the Interpretation Act appears to distinguish between a statutory rule and an environmental planning instrument in the definition of "instrument" in s 3 and in the separate definitions of commonly used works and expressions in s 21, a purposive approach to construction is to be preferred to the extent such an approach can assist.
A LEP is delegated legislation and should be interpreted in accordance with the general principles of statutory construction per McColl JA (Beazley JA agreeing) in Cranbrook at [36]. While the principles of statutory construction referred to immediately above apply, the instrument should also be read in a practical manner, as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] by Leeming JA citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. Importantly, a LEP must be construed as a whole so that the context for the provisions in issue is understood per McColl JA in Cranbrook at [36]. As will become clear in my reasoning there are substantial difficulties in construing the BLEP before me to give it coherent and logical effect.

[21]

Issue 3 - Alleged failure to consider cl 31 of the BLEP

The amended summons relevantly stated: a) The use and erection of marquees, the subject of the Development Consent, is the carrying out of development on or near a ridgeline on the Land, to which clause 31 of Byron LEP 1988 applies. b) Clause 31 prohibits such development unless no alternative location for the development is available. c) Alternative locations for this development were available, such that the Development Consent to this development was prohibited by clause 31 of the LEP and at law. d) In the alternative, if there were no alternative locations, the second defendant: a. failed to consider the objectives set out in (a) and (b) of clause 31; and b. had impermissible regard to the temporary nature of the marquee use, which nature it failed to consider as required by clause 31. e) Accordingly, the second respondent committed jurisdictional error in failing to consider and to deal with clause 31 as properly construed, such that the Development Consent is unlawful and invalid.

[22]

Applicant's Submissions

It is common ground that the proposed use is on a ridgeline. The ability to use a marquee is an integral part of the proposed use. Clause 31 prohibited consent to the marquee and the holding of functions at the approved location, unless there was "no alternative location" within the meaning of that clause. The fulfilment of that requirement was a condition precedent to the power to grant the consent. It requires that as a fact there be no such alternative location, see Abret at [25] and [27].
The words of cl 31 do not call for judgment on what locations are more or the most suitable. They do not exclude alternative locations on grounds that they may be inconvenient or economical. If there is any alternative location, the consent is prohibited, see Manly Council v Hortis, [2001] NSWCA 81; (2001) 113 LGERA 321 at [53]-[54]. The Council's satisfaction that there is "no alternative location" was a precondition of its power to grant the consent.
The evidence establishes that one or more alternative locations were available, but the Respondent considered those locations to be not as commercially attractive to it; the Council was aware of alternative locations; Council did not determine and there was "no alternative location"; it simply failed to give any proper consideration to this question; and the evaluation report, on the basis of which the consent was determined, did not draw to Council's attention the necessity of Council's satisfaction on that issue.
Accordingly, the Council did not make the determination as to the existence of an essential precondition required by cl 31 to permit the consent to be granted, see Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180; (2008) 160 LGERA 274 at [99].
It is only if, as a fact, there is no such alternative location that the Council is permitted to embark upon a consideration of the objectives noted in cl 31(a) and (b) of the BLEP as a step to consent. However, the Council purported to embark on such a consideration, without have made a finding that that precondition had been met. This omission was a jurisdictional error.
Further, cl 31(a) of the BLEP required the Council to be satisfied that there would be adequate landscaping, trees and other vegetation to assist, or to be likely to assist, in mitigating visual impact. The Council granted the consent without having before it any proper landscape plan or any details as to planting species, sizes or density, on the basis of which it could be so satisfied as required by the clause. Instead the Council conditioned its approval requiring that the Respondent subsequently provide landscaping to be in predominantly native plants, in accordance with the concept plan tabled. The Council could not logically or rationally have satisfied itself as to the matters required by cl 31(a) on the material before it.

[23]

Respondent's submissions

This ground lacks substance for the following reasons. First, the Council did not misconstrue cl 31 of the BLEP. The Assessment Report made plain that the Council identified the clause and accurately stated and repeated its legal requirements, and applied the clause to the facts of the case. The Applicant's complaint is that, having identified cl 31, the Council proceeded to misapply the clause to the facts because there were, it is alleged (without any evidence), "alternative locations" for the proposal. In Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [63] the Court said that "proper consideration of a relevant matter does not demand factual correctness". It is wrong to equate relevancy with factual correctness, such that a wrong assessment of a consideration that the decision-maker takes into account is not a reviewable error of law. The basis for the Applicant's challenge is thus contrary to authority.
Having identified that there were no alternative locations for "the building" (ie the marquee), the Council considered the substance of cl 31 of the BLEP according to its terms - it took into consideration all relevant matters and did not take into consideration any irrelevant matter, see Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [53] and South East Forest Rescue at [113].
The Council's obligation was to "consider" cl 31 of the BLEP, and again the principles in Walsh are repeated. It did so consistent with the principles in Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [51]-[58] and thus in a manner incapable of legitimate critique. As the Court observed in MCC Energy Pty Limited v Wyong Shire Council [2006] NSWLEC 581 (2006); 149 LGERA 59 at [46] the administrative decision-maker must identify the question in order to discharge its "consideration obligation". That was plainly done in this matter. The Applicant's complaint, in truth, relates to the answer. Examining the answer impermissibly slides into a merit consideration of the proposal, per Walsh at [56]-[62] and Bruce v Cole (1998) 45 NSWLR 163 at 186E.

[24]

No failure to consider cl 31 of the BLEP

The Applicant contends that the Council did not give proper consideration to cl 31 because the Council did not determine there was "no alternative location" for the marquee. It had to be satisfied of this before the objectives in subcll 31(a) and (b) could be considered according to the Applicant. Further, the Council could not have logically or rationally satisfied itself as to the matters required by cl 31(a) and it gave no consideration to cl 31(b). In this case the decision to approve the development was made by an officer of the Council acting under delegated authority. That officer Mr Darney and Mr Larkin the assessing officer both signed the Assessment Report.
Subclause (a) in the amended summons is not disputed, namely that the development is on a ridgeline. The amended summons in subcl (b) incorrectly summarises the import of cl 31. Subclause (c) asserts a factual matter that alternative locations were available. Such a challenge to a finding of fact is not generally susceptible to judicial review. Alternatively, in subcl (d) two failures were identified. Subclause (d)b seeks in substance to challenge a matter of merit which was the Council's assessment of the development proposed being the use of the marquee on an intermittent and temporary basis. I agree with the Respondent that a large part of the Applicant's contentions seek to challenge the merits of the Council's decision, and are not susceptible to judicial review.
The failure to consider a mandatory relevant consideration ground in judicial review proceedings has been much considered. In Hastings at [99] I stated: In Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400 I considered the cases referred to by the Applicant at [221] - [223] as follows: Numerous cases in this Court have had to consider the extent of council consideration of development applications. The relevant principles in relation to this issue are contained in Parramatta City Council v Hale (1983) 47 LGRA 319 and Weal v Bathurst City Council (2000) 111 LGERA 181. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give "real" consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application, is an error of law which renders that development consent invalid (per Moffitt P at 344). However, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after "anxious consideration" (per Moffitt P at 345). Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 where McClellan J set out at 266 - 267 [37] a distillation of the principles in Hale and Weal including: the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried; when exercising its decision-making power, an administrative body must give "proper, genuine and realistic consideration" to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSWLR 601; legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development; generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it; …

[25]

Issue 4 - Alleged failure to consider cl 34 of the BLEP

The amended summons relevantly stated: a) Clause 34 of Byron LEP 1988 applied to the second respondent's assessment of the development application and it prevented the second respondent from issuing the Development Consent unless the second respondent was satisfied that: a. the Use proposed incorporates adequate landscaping and screen plantings for visual amenity when viewed from other land in the location; b. the Use will have no adverse effect on uses of lands in the vicinity of the Land; and c. there will be no adverse visual impact on the Use on the landscape. b) The second respondent failed to properly consider clause 34 and the matters as required by clause 34. Rather, it considered that because the marquee development was limited and temporary (and without fully considering the extent of that temporary nature), the Use incorporated adequate landscaping and screening, and was therefore permissible. c) Further, the second respondent could not on the material before it and on the facts as existed have been satisfied that the Use would have no adverse effect on the uses of lands in the vicinity of the Land or that there would be no adverse visual impact on the landscape. d) Accordingly the second respondent could not lawfully issue the Development Consent and the second respondent committed jurisdictional error in failing to so find, such that the Development Consent is unlawful and invalid.

[26]

Applicant's Submissions

The Assessment Report relied upon by Mr Larkin in his determination of the DA under delegated authority misstates the requirements of cl 34. It specifically advises that the clause relates only to stand alone cabins and wrongly notes that compliance is not applicable. In the circumstances, the Council could not have considered the clause and its effect. It could not have reached the required level of satisfaction necessary to permit consent, see Hortis. It therefore committed jurisdictional error.
Clause 34(3)(b) required the Council to be satisfied in order to grant consent that the proposed use incorporated adequate landscaping and screen plantings for visual amenity when viewed from all public roads, dwelling houses and other land in the locality of the development. The Council did not embark on the required enquiry. It considered only the issue of landscaping and screen plantings from the locations of objectors and did not undertake the necessary enquiry of when the site was viewed from public roads and other land in the locality as required by cl 34(3)(b). There are a number of vistas from the marquee which simply have no screening at all, and were not considered.
Clause 34(3)(d) required the Council to be satisfied that the proposed use would have "no adverse effect" on the present and potential use of lands in the vicinity of the subject site in order to grant consent. It was therefore a condition of the power to grant the consent that the Council embark upon an enquiry as to the effect which the proposed use would have on the present and potential use of lands in the vicinity of the subject site. The Council did not embark upon that enquiry. It did not satisfy itself that there was "no adverse effect" on the present and potential use of those lands as required as a condition of validity. Rather, the Council considered that the temporary nature of the marquee and the proposed landscaping, inter alia, was an acceptable impact on neighbours.
Clause 34(3)(e) provides that the Council can only grant consent where it is satisfied that the proposed use would have "no adverse visual impact" on the landscape. The Council failed to consider and to be satisfied that there was "no adverse visual impact" as required.
When addressing other requirements of the planning instruments, the Council determined that there was an adverse visual impact which was expected to be mitigated by landscaping and screening measures proposed. Such a conclusion is inconsistent and logically incompatible with any suggestion that the Council was satisfied that there was no visual impact of the use, because it had been eliminated by those measures. It follows from that conclusion, and is apparent from the evidence, that the Council was satisfied that there was an adverse visual impact, and therefore that the consent should not have been granted. Furthermore, the Council incorrectly characterised the marquee use as being of a "temporary nature". The Council granted consent without having before it any proper landscape plan or any details as to planning species, size or density.

[27]

Respondent's submissions

A fair and proper reading of the substance of the Assessment Report indicates and expressly identifies that the Council was clearly aware of and cognisant of cl 34. Although it is true that the BLEP compliance table contained in that Report only identified the matters in cl 34(2), the substance of the matters in cl 34(3) were extensively considered in the assessment process, as evidenced by the documents in Council's possession at the time of the grant of the consent, and fully considered and assessed in the Assessment Report.
Therefore, a fair and proper reading of the substance (see Hill at [53]) of the Assessment Report and documentation (see Gilbank v Bloore (No 2) [2012] NSWLEC 273 at [48]-[61]) reveals that the Council addressed and dealt with the broad cl 34(3) considerations otherwise than via an explicit discussion in the compliance table. Such an approach is entirely lawful and not capable of legitimate critique in judicial review proceedings. The Applicant's attack impermissibly trespasses into the merits of the Council's consideration of cl 34(3), per Walsh. Further, illogicality or "manifest unreasonableness" has not been pleaded, however even if it were, there is no evidence supporting such an allegation and it would fail the very high and stringent threshold required to establish that ground.
Even if the Applicant's submission was correct, it must demonstrate that Council's error was material to its ultimate decision. The Applicant's case involves an impermissible "fine tooth comb" approach to a reading and understanding of the Council's Assessment Report. In the circumstances of this case, the Applicant cannot satisfy the legal and factual burden it bears of proving this ground of challenge.

[28]

No failure to consider cl 34 of the BLEP

Clause 34 of the BLEP considers "rural tourist facilities" which are permissible within rural zones. It is not confined by the heading "tourist accommodation". The chapeau to subcl (3) states that the Council may grant consent for rural tourist facilities in rural zones only where satisfied of certain matters. The amended summons partially extracted above at par 100 raises statutory construction issues in relation to cl 34. It alleges that the Council had to be satisfied of matters in cl 34(3)(b) (incorporation of adequate landscaping subcl (a)a), cl 34(3)(d) (no adverse impact on rural use, subclause (a)b) and cl 34(3)(e) (no adverse visual impact, subclause (a)c) before consent could be granted.
The Applicant's case was framed primarily as a failure to consider specified matters and that is what I will largely address in my finding. The issue as identified in subcl (b) (failure to properly consider cl 34) runs the risk of being a challenge to the merits of the Council's decision, which is not susceptible to judicial review for the reasons identified above at par 84-85.
The Applicant's case focusses selectively and impermissibly on the compliance table in the Assessment Report (at section 3.2, extracted above at par 26) which refers to cl 34 and states in the Summary of Requirement column "maximum 6 cabins rural holiday cabins on a single allotment of at least 20 hectares" that "although the proposal is for a rural tourist facility, the clause applies to development seeking consent for stand alone cabins". These sentences are clearly a reference to cl 34(2) as the terms of the subsection are reflected in the compliance table.
As already stated in the context of cl 31 at par 88 the whole of the Council's assessment process as identified on the Council's file including the Assessment Report can be considered in order to determine if matters relevant to subcll 34(3)(b), (d) and (e) were considered. As the Respondent identified, if the substance of a provision is considered it does not matter if the actual provision is not specified, per Hill at [53]. While there is no specific reference to cl 34(3) in the Assessment Report there is elsewhere on the Council's file and as I discuss below the substance is considered. As the Respondent's submissions summarised at par 108 which I agree with entirely provide, it is important to consider the whole of the Council's assessment process and not focus on one line in the compliance table in the Assessment Report as the Applicant's submission does.

[29]

Issue 6 - No failure to consider economic impact as required by s 79C of the EPA Act

As amended in the course of the hearing the amended summons provided in relation to this ground stated: 3.4 Economic Impacts in the locality b) In particular the second respondent: … c. had no regard to the economic impacts on the first respondent of the Use and had no regard to those same impacts on others in the locality.

[30]

Applicant's Submissions

Section 79C(1)(b) of the EPA Act required the Council to consider the economic impacts of the proposed use on others in the locality, see Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638 per Basten JA at [45].
The Council did not identify economic impacts on adjoining properties as being an issue which it was required to consider under this section. It clearly gave consideration to the SEE provided by the Respondent in support of its application. However, that statement gave no attention to the effect of the consent on adjoining owners' agricultural and rural activities and that effect was not otherwise addressed by the Council at all, save for the unreasoned conclusion in the Assessment Report that there are no land use conflicts.
An illustration of the Council's failure to address this consideration is found in the manner in which it dealt with fireworks. Fireworks were not a part of the subject DA. However, the consent permitted the use of fireworks without having considered the economic impacts in the locality, as required by s 79C(1)(b) of the EPA Act.
The evidence establishes that there is an economic impact on others in the locality arising from the permissibility of fireworks, a matter which the Respondent itself accepts. However, the Council failed to give any consideration to this issue and thereby fell into jurisdictional error.

[31]

Finding

The summons identifies the failure to have regard to economic impacts on others in the locality. The Applicant clarified in the course of the hearing that the sole economic impact of concern is a failure to consider the impact of fireworks on the cattle operations conducted by Mr Roden on the neighbouring property. His affidavit dated 20 May 2015 is directed to this concern and the costs he may incur in managing cattle in the event of the use of fireworks on the Respondent's land during a wedding.
It appears that this concern is baseless in both law and fact. The Respondent made no application to the Council for permission to use fireworks. The consent cannot give consent for matters for which consent is not sought. The conditions of consent do refer to fireworks by way of a general condition (see condition 41(f), above at par 26) stating that no private fireworks displays are permitted unless conducted by a licensed pyro technician under the Explosives Regulation 2013 (NSW) and in strict compliance with all NSW Workcover Authority requirements. Neighbours with pets or animals likely to be affected by fireworks are to be notified 24 hours in advance of any private fireworks event. This condition was presumably imposed in the event that there is some other legal basis under NSW law for fireworks to be used (about which I and the parties in this matter were unaware. There may be no laws permitting fireworks to be used). The condition does not permit the lawful use of fireworks.
As a matter of fact the Respondent does not intend to use fireworks. The contract which the Respondent requires its clients to sign (annexure C of exhibit D) specifies that no fireworks are to be used.
In these circumstances there was no failure by the Council to consider as a mandatory relevant consideration an economic impact on others in the locality. This ground of review is not established.

[32]

Conclusion

As the Applicant has not succeeded on any ground of review the summons should be dismissed. The usual costs order in such cases is that costs "follow the event" meaning the Respondent's costs should be paid by the Applicant. I will postpone making the usual costs order for 14 days. If the Applicant seeks a different costs order a notice of motion must be filed before then. The Council filed a submitting appearance save as to costs and should also have the opportunity to make a submission on costs if it so wishes.

[33]

Orders 1. The Applicant's amended summons filed 13 March 2015 is dismissed. 2. The Applicant is to pay the First Respondent's costs. 3. Order 2 is postponed for 14 days. 4. Exhibits may be returned.

[34]

Amendments 22 December 2015 - Amendment to Coversheet to include Land and Environment Court Act, s 25B in Legislation Cited. Amendment to Judgment par 6 to include reference to Land and Environment Court Act (instead of EPA Act). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2015

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