Rovest Holdings Pty Ltd v Cobar Shire Council

The course of the proceedings

1. At the outset of the most recent lockdown due to the Covid-19 Pandemic, the Court directed that all matters commence without a site inspection. It was open to parties to make an application to the presiding Commissioner to have a site inspection.
2. An informal application was made by the Council prior to the hearing, and after the consideration of the evidence which had been filed, I determined that a site inspection was not necessary but that the Council (or the Applicant) was not precluded from making a formal application at the hearing.
3. The hearing commenced and was conducted by audio-visual means in accordance with the Court's COVID-19 Pandemic Policy of April 2021. During the early part of the hearing the Council made an application for the Court to conduct a site inspection. It was submitted that it was a matter attracting significant local interest and that the Court would be much better informed after a site inspection. The Council indicated that the two principal matters about which a site inspection would assist were the distance from the site to the township, and the services which were available there.
4. I declined the application. I indicated that in August 2020 I had visited Cobar and stayed for two nights in a cabin in a caravan park to the western end of the town. I was aware from my recollection and from the evidence before the Court of the services available in Cobar and the general nature of the town. It was also apparent to me that the distance between the site and the town could be well understood from the evidence, including the zoning map and a facility such as Google Maps.
5. During the course of the hearing there was no time at which I considered it was necessary to attend Cobar for the purposes of understanding the evidence, and no further application was made for the Court to attend the site and Cobar town.

Site and surrounds

1. The site is rectangular in shape with an area of approximately 28 hectares. The frontage to the Barrier Highway is 700m and the side boundaries are 400m. The front boundary is set back about 40m from the constructed pavement of the Highway.
2. The site is predominantly cleared with some scattered non-significant vegetation. The existing village operates on the eastern section of the site about 130m from each of the northern and eastern boundaries.
3. The site is to the south of Cobar town and about 1500m from the entry to the commercial and retail part of the town. It is somewhat closer to the industrial area of Cobar which is also to the south of the commercial and retail area. The distance is an approximation and will vary a little depending upon from where on the site the person commences the journey to the town. That said, neither party submitted thatan extra 100 or 200 metres makes any material difference to the issues in the case and I agree.
4. The local context is characterised by broad acre farming to the east, north-east and south and industrial developments to the north-west. Active mining activities and public infrastructure (water and sewage treatment plants) are located to the south and south-west.
5. The nearest residential dwelling is about 200m north of the site boundary, on the opposite side of the Highway.

The existing camp and the proposed extension

1. The existing village accommodates a maximum of 119 occupants in 30 accommodation units. Each unit is self-contained, containing up to 4 bedrooms, each with ensuite bathroom. There are no cooking or laundry facilities in the accommodation units. The units measure 14.4m in length, 3.3m in width and 2.9m in height. They are sited in 4 rows adjacent to and south of the communal amenities building. One of the existing units is configured as a 3-bedroom unit with one room being accessible for disabled persons.
2. The communal amenities building comprises office, kitchen, cool room, freezer and storage, laundry, toilets, first aid station, dining area, gym and recreation room.
3. There are 3 separate wastewater management systems, one services the accommodation units and two service the amenities building.
4. The DA proposes that an additional 20 accommodation units be installed providing 4 beds each, an additional maximum of 80 beds, bringing a total for the camp of 199 beds in 50 accommodation units. The additional units would be added to the south of the existing rows of units. It is proposed to upgrade the wastewater system to deal with the additional wastewater.
5. The alterations to the communal amenities building are minor and are simply a re-organisation of the spaces within the building to better serve their purpose. Nothing turns on those proposed changes.
6. The overall site plan is reproduced below. The blackened area indicates the proposed additional accommodation units.
7. The general layout is shown in the plan reproduced below. The cross-hatching indicates the additional accommodation units proposed.
8. There is no issue with the internal layout or any consequences thereof. The Council in its draft "without prejudice" conditions required certain upgrading of the access point from the Highway and certain parts of the internal driveway to which the Applicant does not object.
9. The accommodation units provide accommodation for fly-in/fly-out (FIFO) and drive-in/drive-out (DIDO) mine workers. Meals are available on site and the workers are generally transported by bus to the mines at which they are working.
10. The mine workers' village is not operated by a mining company but by a third-party provider. The economic model is generally that an accommodation provider enters into an agreement with one or more mining companies to provide this type of accommodation for FIFO and DIDO mine workers. It was said by the Applicant that workers are directed to the accommodation provided or must seek permission to stay elsewhere. A mine workers' village in general, and the existing village in particular, provides services to more than one mine.

An existing use

1. Prior to the making of CLEP 2012 the site was subject to CLEP 2001. The site was zoned Zone No. 1(a) - General Rural. The table of land uses and zone objectives is set out below: Zone No 1 (a) - General Rural Zone 1 Objectives of zone (1) To promote the conservation of productive land for agricultural and grazing purposes. (2) To permit the development of appropriate agricultural land uses and prevent development of inappropriate non-agricultural land uses such as small lot rural residential subdivision. (3) To permit the development of mines, extractive, offensive and hazardous industries, but only in an environmentally and sustainable manner. (4) To permit some non-agricultural land uses and agricultural support facilities, such as rural supply industries, tourist facilities, farm stay facilities, and the like which are in keeping with other zone objectives and which will not have an adverse effect on agricultural productivity. 2 Without development consent Development, except development within 50 metres, in a horizontal line, of the normal water level of the Lachlan River or Darling River, for the purpose of agriculture (other than use of intensive livestock keeping establishments); forestry; open space; rural buildings with a floor area less than 500m2. Exempt development 3 Only with development consent Any development not included in Item 2 or 4. 4 Prohibited Development for the purpose of boarding houses (other than in camps associated with mines, extractive industries or construction work); motor showrooms; residential flats; shops (other than general stores); warehouses.
2. It can be seen that the land use table is structured such that all uses which are not prohibited are permissible, either with or without development consent. There was a specific excision from the prohibited uses of "… camps associated with mines, extractive industries or construction work". Although mine workers' camps or villages were, strictly speaking, an innominate permissible use, the Council, when adopting CLEP 2001, made clear that mine workers' accommodation was to be a permissible use. This was not surprising given that an objective of the zone was to facilitate development for mines and other industries.
3. The existing village was approved on 13 July 2012 and the development consent (the first consent) operated from 18 July 2012, the date of the Notice of Determination (ND). The ND describes the development as "Development of Mining Camp" before setting out the conditions of consent. By condition 1 the first consent incorporates the Statement of Environmental Effects by Geolyse dated May 2012 (SEE). The SEE makes it plain that the development is for the purpose of providing accommodation for mine workers and described it as a "mining village [which] will accommodate approximately 100 occupants, including associated infrastructure and permanent placement of accommodation units" (SEE p4).
4. Conditions 20 and 21 offer further description of the approved development and its limitations in the following terms: "20. This consent for the miners camp accommodation units is limited to the extent that the accommodation con (sic, meaning "can") only be leased and/or occupied by a contractor, organisation or company for the purpose of providing workers accommodation for the mining industry as detailed in the documents accompanying the application. 21. Under the terms of this consent the accommodation units cannot individually or collectively be the subject of a residential tenancy agreement or similar under the Residential Tenancies Act 2010 or any subsequent residential tenancy legislation that may be made in the future. A right of occupation for value cannot be granted over the accommodation units as residential premises for the purpose of use as a residence."
5. Although not a defined term in CLEP 2001, it is clear that the development approved by the first consent is the provision of accommodation for mine workers and can conveniently be called a mine workers' camp or village. The Applicant, in submissions, described the approved development as "non-residential accommodation for mine workers" which is also apt. This is the "lawful purpose" from which an existing use arises (MM & SW Enterprises Pty Limited v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 at [81] - [82]; MM & SW Enterprises Pty Limited v Strathfield Municipal Council [2011] NSWCA 14).
6. There is no issue that the first consent was taken up and that the existing village operates pursuant to the first consent.
7. CLEP 2012 commenced on 3 August 2012 and applies to the site. CLEP 2012 repealed all local environmental plans applying to the land which included CLEP 2001 (cl 1.8(1) of CLEP 2012).
8. The site is zoned Zone RU1 Primary Production. The zoning table and zone objectives are: 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 this zone and land uses within adjoining zones. 2 Permitted without consent Environmental protection works; Extensive agriculture; Home-based child care; Home occupations; Roads 3 Permitted with consent Air transport facilities; Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Cellar door premises; Cemeteries; Community facilities; Correctional centres; Depots; Dual occupancies; Dwelling houses; Eco-tourist facilities; Environmental facilities; Extractive industries; Farm buildings; Farm stay accommodation; Forestry; Freight transport facilities; Helipads; Highway service centres; Home businesses; Home industries; Home occupations (sex services); Industrial training facilities; Intensive livestock agriculture; Intensive plant agriculture; Jetties; Mooring pens; Moorings; Open cut mining; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Roadside stalls; Rural industries; Rural workers' dwellings; Water recreation structures; Water supply systems 4 Prohibited Any development not specified in item 2 or 3
9. It will immediately be noticed that the zoning table differs from the earlier zoning table. In this case there are nominated uses which are permissible with or without development consent, and all other uses are prohibited. Whilst extractive industries are a permissible use, the parties agree, as do I, that there is no nominated permissible use which embraces the use or purpose approved by the first consent. Accordingly, as it is not a permissible use then the use of the site pursuant to first consent became a prohibited use upon the commencement of CLEP 2012.
10. Existing use is defined in s 4.65 of the EP&A Act: 4.65 Definition of "existing use" In this Division, existing use means - (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and (b) the use of a building, work or land - (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
11. The existing village is an existing use pursuant to subs 4.65(b) because development consent was granted prior to the commencement of CLEP 2012 which prohibited the use, and the use was carried out within one year after the commencement of CLEP 2012.
12. Section 4.66 operates to "protect", but limit, an existing use: 4.66 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises - (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.
13. CLEP 2012 cannot operate to prevent the continuation of the existing use created by the first consent. Whilst the EP&A Act makes it plain that the continuation of the existing use does not extend to any enlargement, expansion or intensification of the existing use, s 4.67 provides: 4.67 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to - (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
14. Section 4.67 is critical to the operation of an existing use because it provides that:

• a regulation can be made to authorise the alteration of a building which is an existing use;
• a regulation can be made to authorise the enlargement, expansion or intensification of an existing use;
• if any such regulation is made then that regulation is deemed to be incorporated in every environmental planning instrument including CLEP 2012 (known as incorporated provisions); and
• any other provision of CLEP 2012 cannot derogate from those incorporated provisions.

1. Clauses 41, 42 and 43 of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulations) relevantly provide: 41 Certain development allowed (1) An existing use may, subject to this Division - (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or … 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification - (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension - (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
2. The effect of cll 41- 43 of the EPA Regulations is that a building which is an existing use may be altered and an existing use may be enlarged, expanded or intensified, with development consent.
3. These clauses of the EPA Regulations are incorporated provisions in CLEP 2012 - they are to be read as if part of CLEP 2012. And no other part of CLEP 2012 can derogate from those provisions. No provision of an environmental planning instrument can derogate from the ability to make such a development application and have it considered and determined on its merits (Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [69]). Nor is the existing zoning to be given some form of "primacy" or "superior public interest" over an existing use (Inghams Enterprises v Kira Holdings Pty Ltd (1996) 90 LGERA 68 at 75-76).
4. The parties agree that the proposed development is to be carried out on the land on which the building was erected and on which the existing use was carried out. That is self-evident from the material before the Court and I accept the parties' common position.
5. The proposal involves the alteration to the communal facilities building and the enlargement and intensification of the existing use of the increased accommodation and infrastructure described above.
6. Accordingly, and it is not in dispute between the parties, the Applicant is entitled to make the DA and have it considered and determined on its merits.

Issues

1. The contentions raised by the Council are: "1. Community integration. The development application should be refused because the proposed development will not contribute towards building a connected and cohesive community and in that regard is inconsistent with Goal 3 of the Far West Regional Plan 2036 and with Chapter 9 of the Draft Cobar Local Strategic Planning Statement. 2. Economic Impacts The development application should be refused because it has not been demonstrated that the proposed development will not have a detrimental economic impact on the locality. 3. Social impacts The development application should be refused because it has not been demonstrated that the proposed development will not have a detrimental social impact on the locality. 4. Public interest and suitability of the site The development application should be refused because the subject site is not suitable for the proposed development and approval of the proposed development is not in the public interest."
2. Each of the contentions is particularised. It is not necessary to set out the particulars in full.
3. Contention 1 in essence is that it is said that the proposed development will not encourage social cohesion because it does not use existing housing stock within the Cobar urban area and fails to integrate with the Cobar community and town centre.
4. The economic impact is summarised in the final particular which says that the proposed development "does not maximise economic benefits to the community such as local spending and procurement, use of existing housing, or by providing mechanisms for social engagement with the existing community.
5. The social impact contention is that the miners' camp will socially isolate occupants and lead to a fragmentation of the community within the locality.
6. The particulars of Contention 4 are that the proposed development should be refused because of the submissions from the public and because the extension of the camp is inconsistent with the Council's strategic policy and the prohibition of mine workers' accommodation in the RU2 zone pursuant to CLEP 2012.

Statutory and Planning context

1. The context for the assessment of the DA is first s 4.15(1) of the EP&A Act which provides relevantly: 4.15 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 Planning 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) … (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), 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.
2. I have set out the relevant provisions of the zoning table of CLEP 2012 above. The only other relevant clause of CLEP 2012 which should be noted is cl 2.3 which provides that the consent authority must have regard to the objectives of the zone when determining a development application.
3. There is no contention by the Council that the DA should be refused having regard to the objectives of the RU2 zone. The DA is for effectively a deemed permissible use and there is no inconsistency or tension between what is proposed and any of the zone objectives.
4. The Council has not adopted a development control plan and so there are no detailed provisions which relate to the issues before the Court or which apply to the site or the proposed development.
5. The contentions raised by the Council therefore fall within s 4.15(1) (b), (c), (d) and (e) of the EP&A Act - the economic and social impacts on the locality, the suitability of the site, public submissions and the public interest.
6. The Far West Regional Plan 2036 (Regional Plan) is a strategic planning document concerning the area of New South Wales west of Dubbo, which includes Cobar Shire. The Introduction describes: "The Plan will guide the NSW Government's land use planning priorities and decisions over the next 20 years. It is not intended to be a step-by-step approach to all land use planning. Rather, it provides an overarching framework to guide subsequent and more detailed land use plans, development proposals and infrastructure funding decisions. … The …Plan is the product of extensive consultation with councils, stakeholders and the wider community, following the release of a draft plan in 2006. The feedback from this consultation has been integrated into this final Regional Plan."
7. Within "Goal 1" of the Regional Plan - "A diverse economy with efficient transport and infrastructure networks" - Direction 3 deals with managing mineral resources and includes: "The Far West employs a high level of drive-in, drive-out workers. The nature of this type of employment in mining operations changes resident populations, and creates difference demands for retail, health, education and emergency services."
8. Cobar is identified as having been an important minerals mining district for nearly 140 years and that there is potential for further development in the area.
9. Goal 3 of the Regional Plan is "Strong and connected communities". Direction 27 "Provide greater housing choice" deals, inter alia, with miners' camp accommodation: "Housing for seasonal and itinerant workers in mining communities such as Broken Hill and Cobar, demand for housing fluctuates, with high demand during mining construction phases. These workers need a range of accommodation options. Any undersupply increases rents, affects affordability and may cause health and safety issues from overcrowding and makeshift housing. It can also put pressure on tourism and visitor accommodation, such as motels, caravan parks and camping grounds. During harvest periods, particularly in irrigation communities, seasonal demand associated with viticulture, cotton and stone fruit industries increases demand for accommodation. In isolated areas, temporary worker accommodation is often provided in purpose-built accommodation camps, which may conflict with existing uses and increase pressure on limited services and amenities. Transient populations put pressure on housing and accommodation supply. Peaks in housing demand may be satisfied through short-term workers accommodation in temporary housing villages. Further guidance is required to plan for temporary mining accommodation. The size and scale of these facilities should be decided with local communities and consider social integration, land use conflicts and impacts on community facilities. Actions 27.1 … 27.2 … 27.3 … 27.4 Produce guidelines to help councils plan for and manage seasonal and itinerant worker accommodation. 27.5 Prepare planning guidelines for the short-term accommodation of mining employees to support workforce needs during mining construction, operation or shutdown."
10. There is a separate section dealing specifically with what are described as "Temporary housing villages": "Temporary housing provides short-term accommodation for construction and mining employees during peak periods. Remote temporary housing villages should avoid duplicating services and facilities in existing townships. In some circumstances, locating temporary populations on the outskirts of established centres may be preferable to enable temporary residents to use and contribute positively to facilities that serve the entire community, while better integrating temporary workers into these communities."
11. There are no planning controls as such in the Regional Plan, that not being its objective, but rather it is a strategic plan to assist in the making of future policy and planning decisions of a strategic nature.
12. The Cobar Shire Local Strategic Planning Statement (LSP Statement) is referred to in the contentions as a draft document, but it was adopted by the Council in 2020 and is no longer a draft. The Foreword provides: "One of the most important jobs of Council is to set the strategic direction that guides our work to improve life in Cobar Shire. To assist with this, Council has prepared a Local Strategic Planning Statement. This Statement is owned by the community of Cobar Shire. It is not a Council plan; however, Council has taken responsibility for bringing the plan together, overseeing its implementation and reporting back to the community on progress made."
13. Part 2 identifies the role of the LSP Statement: "This Local Strategic Planning Statement (LSPS) sets the framework for the economic, social and environmental land use needs over the next 20 years. The LSPS has also taken account of land use planning in adjacent Councils. It also works with council's Community Strategic Plan (CSP) and Local Environmental Plan (LEP). The LSPS gives effect to the Far West Regional Plan, implementing the directions and actions at a local level. The LSPS planning priorities, directions and actions provide the rationale for decisions about how we will use our land to achieve the community's broader goals. This LSPS has been prepared in accordance with clause 3.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The LSPS brings together and builds on the planning work found in Council's other plans, studies and strategies, such as the Local Environmental Plan (LEP) and Community Strategic Plan (CSP). The LSPS also gives effect to the Far West Regional Plan 2036, implementing the directions and actions at a local level. The LSPS planning priorities and actions provide the rationale for decisions about how we will use our land to achieve the community's broader land use vision."
14. Clearly once again this is a strategic document, bringing together a range of plans and studies including the Regional Plan and applying them to the local Cobar level. The LSP Statement then requires action to be taken in a variety of ways, including the making of, or amending of, environmental planning instruments.
15. The Vision for Cobar expressed in the LSP Statement is: "Our vision is for Cobar Shire to be an attractive, healthy and caring environment to live, work and play, achieved in partnership with the community through initiative, foresight and leadership."
16. The vision is expanded: "As the mining hub we will be an established mining community that encourages community cohesion through provision of accommodation within the town centre and agitation towards a local workforce. The exploration of mining and how it is approved in the future will be a key focus for Council. We will focus on industry and infrastructure development that will utilise or establish local workforces."
17. In Part 8 dealing with Industry Sustainability, the LSP Statement recognises that: "Tourism is an important industry in Cobar that continues to grow. The tourism market is largely underdeveloped, and considerable opportunities exist in the industry."
18. Part 9 is entitled "Healthy and Cohesive Community" and says this about housing: "9.1 HOUSING Cobar has a range of housing opportunities, from rural to rural residential, large sized town blocks and unit developments. In late 2006 Council released 64 lots which sold out in three days. A further Council subdivision of 47 lots is planned. There are a number of private subdivisions being undertaken around the Shire. … Cobar will be community-based mining town. With services that support people living in town. Utilising current housing stock before any future application for temporary accommodation outside of town will be favoured. Future industry development applications that accommodate employees in town to the best of their ability to support longevity will be favoured by Council. Setting this direction for future development will provide certainty to local residents and the economy."
19. Whilst these strategic documents are not mandatory relevant considerations (because they are not environmental planning instruments) they are, in my opinion, relevant as an element of the public interest. That is, it is relevant to take into account the strategic direction of the Council in determining the DA.

Evidence of objectors

1. The Council advertised the DA in accordance with its policy and there were 67 written submissions opposing the development, an on-line petition of more than 1600 signatures, and some written petitions in similar form. The total number of the petitioners is said by the Council to be 1950.
2. The on-line petition was conducted on the platform of change.org and is headed "Save our Community - Cobar". The petition referred to the DA and made some comments describing the author's opinion about the impacts of FIFO and DIDO accommodation. The petition added: "We need legislation, similar to the Strong and Sustainable Resource Communities Act that has recently come into force in Queensland. Our town will continue to suffer if something does not change."
3. The petition garnered signatures from all over Australia and from overseas, as well as locally.
4. The petition highlights that intertwined with this DA is a more general concern about the impact of FIFO and DIDO workforces for mining operations. The individual submissions also reflected that general concern raising the following issues (as summarised by Council): "The social impacts resulting from the expansion of the mine workers village. Mine workers village residents not integrating with the local community. Existing dwelling vacancies within Cobar not being utilised. Criticisms of the applicant's wastewater report and water storage tanks. Support for community/residential based mining. Opposition to current mine rosters and the DIDO or FIFO mining models. Application does not contribute to community facilities and infrastructure. Single room boarding accommodation not family friendly or changeable. Shift from initial purpose to accommodate contract workers (mine development) to accommodation for all mine workers."
5. Oral evidence was given by Mr R Clark on behalf of his family and other local residents, Mr H Prendergast a local business owner, Ms Genie McMullen, a local resident, Mr B Wynd, who lives on the opposite side of the Highway and Mr R Cowdrey, the Vice President and Organiser for the South West Region of the Australian Workers Union.
6. Mr Clark reflected the Council's concern about the social and economic impacts of the proposal. He said that the FIFO and DIDO workforce has "raped our community of a growing population, which in turn has had far-reaching effects on our way of life."
7. Mr Prendergast also decried the lack of commercial and social contribution to Cobar itself, the self-sufficiency of the existing camp depriving Cobar of interaction and being "one of the worst examples of alienating that this community has ever seen".
8. Ms McMullen pointed to the availability of accommodation in the town of Cobar which should be used for the workers. She said the mining companies should provide incentives for workers to live in the town and said that very little of the goods and services used by the existing village are sourced from Cobar. She described the mine shifts as being 14 days on and 14 days off, with 7 of the days on being day shift and the other being night shift. She said there is no need for FIFO workforce and there should be integration with the town. The proposal brings nothing positive for the community she said.
9. Mr Wynd objected to the potential odour, dust and noise of the proposed development. He complained of lighting which affected his amenity at night at home, although his dwelling is over 150m from the driveway of the proposal. He said that the village is not a healthy place in which to live.
10. Mr Cowdrey is an official of the union which represents most of the mine workers. He cited a 2013 Federal Parliamentary report which said that FIFO/DIDO workforce should be made the exception rather than the rule and workers should be accommodated in the town rather than in the village. He also pointed to FIFO/DIDO having a negative impact on the well-being of workers.

Expert evidence

1. A joint report was provided by Mr Peter Leyshon and Prof Roberta Ryan described by them as "Social and economic evidence". It is not a joint report in the true sense because Mr Leyshon and Prof Ryan practise in different professional disciplines and have different qualifications and experience.
2. Mr Leyshon is a research analyst and town planner with extensive experience in assessing economic impacts. He has specific experience in relation to demand for workers' accommodation and its economic implications in a number of Queensland mining towns.
3. Prof Ryan is a social and economic research analyst and has extensive experience in what is conventionally described as social planning.
4. Their joint report considers the context of the DA, including population and property information, which is largely a common position. There is discussion of economic impacts which is the work of Mr Leyshon, and there is discussion of social impacts which is the work of Prof Ryan.
5. It is worthwhile setting out their principal conclusions. Prof Ryan described her key points: "Key point 13: Overall Cobar is socially cohesive with good services and facilities. Key point 14: Increasing changes to employment patterns will lead to decreased social cohesion. Key point 15: It could be argued that the accommodation of workers in a mining camp - rather than in town will further contribute to a loss of social cohesion. Key point 16: There are potential mitigations to reduce the impact of non-permanent mining workforces and out of town accommodation that can be put in place - such as contributing to sporting and community organizations and local purchasing."
6. Mr Leyshon's conclusion in the joint report about the potential for economic impact was: "3.2.1 The Particulars under Contention 2 imply that approval of the proposed development will give rise to an adverse economic impact - in other words economic losses. 3.2.2 The only way the proposed development could have a net negative economic impact would be if the proposed units were totally occupied by existing workers already accommodated in other forms of accommodation in the township. Such a loss would include loss of rents and some reduction in spending in local business particularly food related businesses and supermarkets. 3.2.3 In such a "worst case" about 3-4% of the current workforce in Cobar could theoretically relocate to the proposed units - if approved (assuming Cobar LGA still has a local workforce of 2,269 persons as it did in 2016). In population terms it would be equivalent to about 2.1% of the overall resident population of the township of Cobar - that is about 3,750 persons in 2021. 3.2.4 Hence this potential negative effect would (at worst) be marginal in nature as far as the overall local economy was concerned."
7. On this subject matter Prof Ryan added: "3.2.5 RR contends that a potential negative impact of the proposal is that it 'disincentivises' others - such as motel operators to invest in their properties in the township if this proposal goes ahead."
8. Mr Leyshon described any economic impact as, in fact, a form of "opportunity cost" - an abstract or theoretical cost because it is a lost opportunity to obtain a benefit rather than an actual cost. The lost benefit is the benefit theoretically foregone from an alternate form of accommodation in the township. Mr Leyshon added this: "3.3.5 Mining villages provide flexible shift-based accommodation, meals, laundry services, recreation facilities, transport to a mine site and the like. By contrast accommodation in a detached house (or a unit) provides accommodation (which has to be leased or purchased) but all other services must be provided by the miner themselves. The former suits FIFO/DIDO workers who prefer to work on shift basis in Cobar but live outside of Cobar while the latter suits workers who are content to live either by themselves, or with their family, in Cobar on a permanent basis."
9. Mr Leyshon's conclusions were: "7.1.1 The proposed development involves an expansion of the existing village to accommodate an ongoing demand from mining companies and mining related companies for workers who are either employed in Cobar on a short-term basis (such as construction and maintenance workers) or who do not wish to reside permanently in Cobar. 7.1.2 In relation to Contention 2 it is his view that the proposed development will have a relatively small but positive direct economic effect on Cobar. The proposed development will also have a positive indirect effect on the mining industry in general by providing a form of accommodation which is needed to meet the requirements of mining and mining related companies. 7.1.3 PL notes that at present there is very limited rental accommodation currently available in the private market in Cobar at present. While it may be theoretically possible to accommodate an extra 80 workers in existing vacant houses, this would require a large acquisition program which could only be undertaken by one of the mining companies. 7.1.4 The perceived "economic losses" which have been postulated by the Respondent can best be described as theoretical or imputed losses. They are based on the concept that there would be certain economic benefits associated with an alternative proposal which is accommodating miners in traditional housing within the township of Cobar. They are also based on the false assumption that such housing is directly substitutable with mining village accommodation as far as those miners who do not require, or prefer, permanent housing in Cobar are concerned. 7.1.5 In relation to Contention 3 , he notes that firstly, not all mining employment is suited to accommodation in permanent housing, and secondly, that the potential working population which could be accommodated in the proposed expansion of the village (80 workers) is a relatively small proportion of the likely population of the township of Cobar (2.1%). Hence, any negative social impact is likely to be relatively limited in scale."
10. Prof Ryan's conclusions are expressed as follows: "7.2.1 There is sufficient capacity within the Cobar town to deliver a range of accommodation types to meet the demand for new or additional accommodation. 7.2.2 Single dwelling houses, multi- unit dwellings, short term accommodation options in existing or new dwelling houses, motel accommodation, expansion of existing or new caravan park dwelling sites that can transition between different end users over a long term once the base infrastructure is in place, even if needed for short term contractor accommodation etc can all be catered for in town. 7.2.3 Employment patterns of some mining companies negatively impact social cohesion in Cobar. While the mining companies control the staffing rosters Rovest can support social cohesion in Cobar by not building more accommodation outside the town. 7.2.4 There are possible, albeit potentially limited, consequences from expanding the mining village on the appetite for investment by other accommodation providers in Cobar town (say the caravan park)- see submissions from Schuh Group who have two motels in town they expressed both capacity and willingness to expand their facilities but are reluctant if this proposal goes ahead. 7.2.5 To support social cohesion, the aim should be for a range of accommodation in town that is integrated in with the community. It is agreed that the approval of the proposed development will have an adverse effect on social cohesion in Cobar. 7.2.6 The expansion of a mining village out of town will contribute to decreasing social cohesion. 7.2.7 It is a potential negative impact if the proposal results in accommodation owners in town (such as the owners of the motel) not investing in their properties to provide more available accommodation."
11. Mr Leyshon and Prof Ryan recorded what they said to be their agreed position from their differing perspectives in their different disciplines: "7.3.1 In summary, the proposal supports a form of mining employment (FIFO/DIDO) which is common to mining operations throughout remote parts of Australia. 7.3.2 Mining is the key economic "driver" of the Cobar economy. Given the effect that a declining population base must be having on other parts of the economy, it is important that mining be facilitated in Cobar as far as possible. 7.3.3 The existing mining village is part of the infrastructure which supports this industry. At full occupancy the existing mining village probably accommodates no more than 14% of the mining workforce in Cobar. 7.3.4 It is reasonably clear that most miners in Cobar live in the township in various forms of accommodation. 7.3.5 Mining camps only provide a single form/style of accommodation that is short term and cannot be adapted to another form over time as and if demands change. 7.3.6 There is potential for a marginal negative economic impact but only under certain conditions which involve the relocation of mining employees currently accommodated in Cobar township and other forms of accommodation to the proposed expanded village. 7.3.7 The experts agree there may be some greater social benefits associated with accommodating additional miners or construction workers in traditional housing within Cobar compared to accommodating them in a mining village. 7.3.8 There is very limited rental accommodation currently available in the private market in Cobar at present. 7.3.9 Mining camps are however a very flexible form of accommodation which can be scaled back readily if demand for the services declines due to reduced mining employment. 7.3.10 The additional population proposed to be accommodated in the expanded Village (80) is equivalent to about 2.1% of the Cobar Township population in 2016 (3,750 persons). It is agreed that this is a marginal economic impact. 7.3.11 The proposal will have a negative impact on the Cobar community if it leads to people currently living in town leaving their accommodation and moving into the mining village."
12. Mr Leyshon and Prof Ryan also directed their minds to the potential for mitigation of any impacts: "7.4 Agreed Potential mitigation measures (if approved) • Remove the restrictions on trips from the mining village to enable residents to frequent town. • Prevent any existing residents of Cobar moving into the mining village. • Facilitate mining village residents' participation in sporting, social and cultural activities in town. • Ensure maximum local purchasing of goods and services."
13. Prof Ryan was not required for cross-examination and did not give oral evidence. Mr Leyshon was cross-examined. In his oral evidence Mr Leyshon:

• Agreed that the extension of the existing camp was not an employment generator in itself other than in the construction phase.
• That the additional facilities could be utilised by existing mine workers presently being accommodated elsewhere, including within Cobar, and that there are fluctuations in the mine workforce and the extended facility could accommodate future workers.
• The existing village was only ever at about 70% capacity and that the additional accommodation of 80 beds would also only ever be at about 70% capacity. This is because of the logistical difficulties with changes of shift and the like.
• There is the potential for some loss for individual accommodation providers from losing a regular customer but that will free up the accommodation for the purpose for which it was originally approved - tourist accommodation.
• The negative economic impact will be to the extent the accommodation provider cannot replace the "lost bookings" with travellers.
• The contribution in the construction phase will be modest as the substantial part of the cost of the proposed development is the fabrication of the accommodation units which are manufactured elsewhere.
• According to the Applicant, it spends about $250,000 per annum in the local community on varied goods and services. Significant goods and services are sourced from outside Cobar.

1. Planning evidence was given by Mr D Walker retained by the Applicant and Ms H Deegan retained by the Council. Both are qualified and very experienced town planners. The planners provided a concise and clear joint report and were not required to give oral evidence.
2. The planners opined first on the issue they described as Community Integration. Their disagreement stems from the weight they respectively consider should be given to the Regional Strategy and the LSP Statement.
3. Mr Walker's view is best expressed in his conclusion at par 22] of the joint report: "The relevance of these strategic documents in the context of a site specific assessment of impacts is limited. The site has been found to be suitable for the approved purpose via the original grant of consent. The Council's assessment fails to identify that the proposed change in scale results detrimental impacts to the amenity of the locality and relies on the principle that positive outcomes will arise if the development does not proceed. I believe this applies an incorrect test."
4. Ms Deegan's conclusion is: "28. Whilst the LSPS is a document adopted post the assessment of the DA, it does reflect the intentions of the Council and how it is likely to deal with future strategic issues including any changes to the LEP. As such it is unlikely that a proposal for "worker's accommodation" would ever be considered to be a suitable use in the RU1 zone and therefore supporting expansion of a use that is now prohibited is not appropriate in the strategic context. 29. The DA is for expansion of an existing accommodation facility that was originally approved under Cobar LEP 2001 as a stand-alone mine workers accommodation. Under the current RU1 Primary Production zone in the Cobar LEP 2012 it is prohibited. While I agree the use has existing use rights and that an expansion of the facility is permissible with consent, this does not necessary reflect that the nature and type of use is appropriate for this location."
5. The planners agree that they defer to the other experts on matters of economic and social impacts but add comments of their own.
6. On economic impacts, Mr Walker says: "37. The submitted application makes clear that the village relies on services and supplies from the local town and region to function (including for supply of bakery products, meat and dairy products, the local linen service and others). Expansion of the village expands this demand and has a positive benefit to these local businesses in this regard. The facility employs local staff and sponsors a local football team. Through these measures, the village is currently integrated and engaged with the community. The operators confirm that occupants of the village travel into town to make use of local services, noting that this is achieved through car-pooling and bus transfer to minimise vehicle movements. 38. Council's refusal of the application assumes that if accommodation is not provided at the village, these potential village guests will instead stay in town and that some greater benefit will be derived. That the development provides a benefit is not the established assessment test; an absence of detrimental impacts is sufficient."

Consideration

1. I will note the submissions of the parties in my consideration of the issues rather than record them separately.

Community integration

1. The planners' difference of opinion was based on the weight to be given in the assessment process to the Regional Plan and the LSP Statement. First it needs to be observed the extent to which either document discouraged this form of development.
2. The Regional Plan does not of itself provide any real guidance to the appropriateness of the provision of this form of accommodation in a location. Whilst there is a recognition that there is the potential for issues which may need to be resolved in the strategic planning, "the size and scale of these facilities should be decided with local communities and consider social integration, land use conflicts and impacts on community facilities" (Direction 27). In respect of "Temporary housing villages", it is suggested that locating temporary populations on the outskirts of established centres may be preferable.
3. The Council submits that Ms Deegan's evidence that the proposed development is in conflict with the Regional Plan because it is not in accord with the community wishes as expressed in the objections to the DA. Ms Deegan also said that the proposal was not for "temporary housing village" but for permanent accommodation provision.
4. The Applicant argues that the proposal is in conformity with the Regional Plan in any event.
5. In my view, the Regional Plan is neutral as to the specifics of this DA. It is not clear that it says much more than there is the potential for issues, and policies need to be developed in consultation with the community having regard to at least the identified criteria. I do not accept that the objections to this proposal evidence the strategic planning decision which is foreshadowed by the Regional Plan. The expectation of the Regional Plan is that either a local environmental plan or a development control plan will be adopted, logically after community consultation, to nominate the "size and scale" of this type of facility.
6. I do not accept Ms Deegan's evidence that the overarching objective of the Regional Plan to provide for "Strong and Connected communities" is to be treated effectively as if it is a control to be achieved by this (and presumably every other) development application. It is a statement at a high strategic level from which in due course other steps will flow.
7. For example, there could be a provision in CLEP 2012 or a new development control plan which limits the size of miners' villages which would apply to an existing village whether or not existing use rights are relied upon. Council has not done so.
8. Having found that the Regional Plan does neither encourage nor discourage the proposed development, it does not matter the weight to be attributed to it. It does not affect the balancing exercise. I do note, however, that even had the Regional Plan been clear in its approach to the future of miners' villages, it would not have attracted determining weight because, as the Applicant submitted, the Regional Plan indicates further steps to be taken to bring the strategic visions to reality. The taking of those steps, whatever they be, should not be assumed.
9. The LSP Statement is, in principle, the same type of document - a strategic plan, but it is one adopted at the local level after community consultation. Whilst it too requires further steps to be taken to give effect to its vision, it nevertheless is an expression by the community of the planning direction of the local government area.
10. Ms Deegan identified the passage in the section on 'Healthy and cohesive community" whereby it is said that "utilising current housing stock before any future application [for temporary accommodation] outside of town will be favoured". She said, and the Council submitted, that the DA should be refused because the provision of accommodation outside the town is only as a last resort and in Cobar there is vacant accommodation and land for development available.
11. There are 3 observations about the Council's approach to this part of the LSP Statement:

• Ms Deegan said this miners' village accommodation is not temporary accommodation for the purposes of the Regional Plan, but it is permanent accommodation. She says, however, that the reference to temporary accommodation in the LSP Statement embraces miners' village accommodation. It is to be expected that the phrase means the same in each document, the LSP Statement claiming to be consistent with the Regional Plan.
• In my view, the present form of accommodation is embraced by the term in both documents. Whilst the infrastructure is to be of a permanent nature, the housing of the workers is temporary - temporary either in the sense of only 2 weeks at a time, or temporary in the sense that it is not the place of abode of a worker, or temporary in that the worker will only be accommodated there for the length of their contract with the mine.
• There is not a statement of prohibition of miners' villages outside the town centres, but a statement of preference or favour.
• Related to the previous point, it is difficult to understand how the preference or favourability would be reflected in a planning instrument. Is the availability of accommodation within the town to be exhausted before a miners' village would be approved? Will it depend on the size of the village? Will it be like for like - land of the size proposed to be the village must be available in town? How will the economics be dealt with?

1. I agree with the Council that the strategic direction is to discourage miners' camps outside of the town, but not with the clarity and certainty that Ms Deegan suggests.
2. I also agree with the Council that more than notional weight ought be given to the LSP Statement, however as a strategic document I do not give it determining weight, because much has to be done before the strategy leads to changes in the planning regime and one could not conclude that the inevitable consequence of the strategy is to prohibit a proposed village outside of town or to constrain the size of a village which is permissible because it has the benefit of existing use rights.
3. I accept that the LSP Statement weighs against the granting of development consent but only gently so.

Economic impact

1. The Applicant correctly identified the approach to assessment of economic impact which I take to be encompassed in the following extract from the judgment of Jagot J in Milne v Minister for Planning (No 2) [2007] NSWLEC 66 (Milne) at [23]: 23 "The fact that all people are members of society and engage in some form of economic activity does not mean that each and every impact of development on a person amounts to a social and economic impact. It is for this reason that, when dealing with the social and economic impacts of development, courts have rejected notions of the profitability of individual businesses and focused on the potential for detriment to the "extent and adequacy of facilities available to the local community if the development be proceeded with" (Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675 at 687). This focus reflects that part of the definition of "environment" in s 4(1) of the EPA Act concerned with people in their "social groupings". It also reflects certain objects of the EPA Act (s 5), which are incapable of being understood outside the context of people as community members (including the promotion and co-ordination of the orderly and economic use and development of land, the provision and co-ordination of community services and facilities, ecologically sustainable development and the provision and maintenance of affordable housing). Social and economic impacts thus concern effects on the relations between people in their capacity as members of communities and their environment."
2. Whilst it was said by Basten JA in Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205 at [45] that: "…. it is at least arguable from the analysis set out above that a broader construction of s 79C(1)(b) [than that arising from Kentucky Fried Chicken] should be adopted than those cases in the Land and Environment Court would indicate." the Court of Appeal did not have to grapple with that question, and the ratio from Kentucky Fried Chicken continues to be applied in this Court (see eg Elanor Investors Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93, Pepper J).
3. It follows then that the economic impact in the locality is more than simply the impact on one or more accommodation providers - whether there is, and to what extent, detriment to the "extent and adequacy of facilities available to the local community".
4. To the extent, which is admittedly not known with any precision, that the proposed development accommodates workers presently utilising accommodation within the Cobar township, I reject Mr Leyshon's evidence that the economic cost is an opportunity cost - the loss of a chance to provide accommodation for a worker. If workers leave their accommodation in Cobar township to be accommodated at the village, then there is a real economic impact on that accommodation provider, not a lost opportunity. Of course, that individual impact is only measured having regard to such matters as the stay of any individual worker and the arrangement between the mine and the provider. The actual economic impact can very quickly become a lost opportunity in the future and not a real direct impact.
5. There is also the capacity to fill the void consistent with the provision of accommodation for tourists or travellers, and as encouraged in the Council's vision.
6. In any event, I do not regard the impact on any individual accommodation provider as a relevant impact. The question, in my opinion, is the broader question of the economic impact on the community of Cobar, the relevant locality for the purposes of s 4.15(1)(b) of the EP&A Act.
7. I accept the evidence of Mr Leyshon that if there is a negative economic impact it is only marginal, and therefore would not warrant refusal of the DA.
8. There was some criticism of the evidence of Mr Leyshon and particularly his acceptance from the Applicant that there was currently an annual spend of approximately $250,000 in Cobar by the Applicant. Mr Leyshon did not seek further details and it was submitted that care should be taken in accepting that evidence. Two observations should be made.
9. First, the Court is not bound by the rules of evidence and typically and frequently accepts from experts what would otherwise be hearsay material. It may be different if there is a contest about the assumption made by experts, but here there is in truth no contest.
10. Second, the Council said that it was a matter for the Applicant, bearing the overall persuasive onus, to properly prove that fact, with at least evidence of further enquiry by Mr Leyshon. In Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 307 ALR 262; [2014] NSWCA 105, the Court of Appeal said at [112]: "The essential point, however, is that if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence."
11. A party is entitled to submit that an expert's conclusion is not supported by the assumptions, is not logical, for example, and ought not be accepted, even if contrary evidence is not led by that party. However, this is not that situation. The Council raised the issue of economic impact and is critical of an expert accepting the statement of the Applicant when the Council had taken no steps whatsoever to enquire itself as to such matters, by subpoena or the like, and led no evidence in that regard.
12. I accept the evidence of Mr Leyshon of what he said was stated to him and have no evidence to reject the assumption of correctness which he made. That said, it really has little significance in any event.
13. It is common ground between Mr Leyshon and Prof Ryan that there is the potential for a negative impact on the Cobar community if it leads to "people currently living in town leaving their accommodation and moving into the mining village" (joint report par 7.3.11). However, that is not a certain impact and is a "marginal negative impact", and "only under certain conditions" (joint report par 7.3.6).
14. I do not regard the potential for a marginal negative impact under certain conditions to be a matter of determining weight sufficient to refuse development consent. It is uncertain at best, and even if it occurs then it will be marginal and presumably barely noticeable. That is without taking into account any positive economic benefits such as increased spending in the local community by the facility or individual workers.
15. Mr Leyshon and Prof Ryan opined as to potential mitigation measures, directed at both economic and social impacts admittedly. The mitigation measures were not taken into account in their respective assessments but are taken to be measures which can reduce even further the potential for impacts.
16. There is in fact no restriction on trips from the mining village, other than the restriction on 20 vehicles per hour designed to avoid a large number of vehicles entering and travelling along the highway at the same time when there is a change of shift. Outside the change of shift, it is highly unlikely that the maximum 20 vehicles per hour will operate as a constraint on the workers going to the township.
17. The township also is only about a 15-minute walk from the miners' village, not of itself a major impediment to the trip. And the Applicant's draft POM includes a provision to more easily facilitate, rather than discourage, trips to the Cobar township.
18. The draft POM provides for a community noticeboard and the development of a "buy local" policy designed to engage the community socially and economically. I also note that the existing village sponsors a local sporting team.
19. Although mitigation measures are not required having regard to my findings, the Applicant has proposed some form of mitigation which is a positive element of the proposal. It will not be considered by all as particularly significant, or may be thought of as "window dressing", but the provisions of the draft POM are likely to be the beginning of improved community engagement of the miners camp.
20. In my opinion, the potential economic impacts of the proposed development are not such as to warrant refusal of the DA.

Social impacts

1. The critical conclusion of Prof Ryan is Key Point 15: "It could be argued that the accommodation of workers in a mining camp - rather than in town - will further contribute to a loss of social cohesion."
2. It is recorded by Prof Ryan as an argument rather than a conclusion. And, with respect, it is readily understood why that is so.
3. The likely occupation of the additional accommodation units is 70% of 80 beds, some 56 workers. If there were 80 workers accommodated at the village, then that would amount to 2.1% of the Cobar workforce (see [86] above). If, as expected, the number accommodated in the extension is more like 56, then it is in the order of 1.5% of the workforce. In my opinion, that is such a small change that it is de minimus. Whilst as Prof Ryan says, it is arguable there will be a social impact, I cannot conclude that there is a real social impact by the accommodation of 56-80 additional workers at the village, even on the assumption, which cannot be made, that they all relocate from accommodation in the township.
4. It is true that at par 7.2.6 of the joint report Prof Ryan said that the expansion of a mining village out of town will contribute to decreasing social cohesion, and in theory I agree it could. But at the level that is proposed, measured against the population and the workforce then that contribution to decreasing social cohesion is marginal at its highest.
5. The final joint opinion is the conditional conclusion that the proposal will have a negative impact on the Cobar community if it leads to people currently living in town leaving their accommodation and moving into the mining village. The experts are unable to opine as to the likelihood and number of such persons leaving town, nor can they say that the workers would not continue to be involved in the community. It is not a binary choice and the Applicant intends to encourage continued community involvement in any event, reflected in the draft POM.
6. It is also worth noting that the Applicant, and those mining companies with which it contracts, must be aware of the potential for social impacts on workers from the FIFO/DIDO workplace arrangements and that an engagement with the local community is mutually beneficial. That is, it should be obvious that the more pleasant and engaged a worker is when not working, the better the work/non-work environment and, presumably, work performance.
7. The potential for social impact is not such as to warrant refusal.

Public interest

1. The element of public interest which relates to the strategic planning documents has been dealt with in considering Contention 1. The remaining element is the objections from members of the public.
2. Whilst particularised as an element of the public interest, the submissions are a mandatory relevant consideration pursuant to s 4.15(1)(d) of the EP&A Act. I have read the submissions and listened carefully to the oral evidence from the objectors.
3. I accept that the concerns expressed are real and genuinely held; and that there is a foundation for the concern. There is little doubt that the provision of workers as FIFO/DIDO is unsettling in Cobar and many other "mining towns" throughout Australia. That concern cannot for the purposes of this DA mask the assessment which is required.
4. I am making no judgment about FIFO/DIDO working arrangements specifically or mining and employment practices in general. I can only assess the DA and its potential impacts. The objection to this proposal is entwined in many of the objections with what are seen to be the problems created by having part of the mining workforce as FIFO/DIDO workers.
5. The expert evidence demonstrates, in my opinion, that the impacts of the proposed development do not warrant refusal of the DA. The increase in workers at the village will be at its maximum 1.5% to 2% of the population. The percentage of mine workers at the village will be in the order of 16%, still a small minority of the mining workforce. (This percentage is calculated by using the experts' assessment of 199 workers is 14% - see par 7.3.3 above, when the real occupancy at 70% of about 140 workers at present and about 210 if the additional workers are included.)
6. As such, I cannot conclude that the impacts about which there is concern are likely to materialise in any real or measurable way.
7. I do not accept Ms Deegan's evidence which appears to be that as a matter of public interest the proposal should be refused because of the number of submissions. First, the number she used of over 2,000 responses included signatories to the on-line petition which was addressed to the Prime Minister and others and drew attention to the broader question of a FIFO/DIDO workforce in country Australia as well as the Cobar application.
8. Second, the number of objections is an expression of the level of interest of the public, but not a compelling consideration in determining whether or not a proposal is in the public interest. The public interest is a broad concept and the subject matter of objections are more important rather than the number of objections. Of course, it is undoubtedly the case that if there are a large number of objections then it can be an indicator that important issues are to be considered, such as in this case. I have considered those issues.
9. Some matters raised in objections were not encompassed by the expert evidence and require comment. There was criticism of the wastewater report and water storage tanks. The Council is now satisfied that the arrangements for the disposal of wastewater, stormwater collection and disposal/re-use and the provision of water are adequate. I am so satisfied as I am required to be in accordance with cl 6.3 of CLEP 2012 in relation to stormwater.
10. Mr Wynd had a particular concern about impacts on his home. There is no potential noise or odour impact and the potential for the creation of dust has been addressed by the imposition of conditions requiring some sealing of the driveway of the proposed development. The Applicant believed it had resolved any question of light spill or light focus and there is a complaints mechanism in place as a consequence of this approval through which Mr Wynd can ensure any future problem which arises can be dealt with.

Conclusion

1. The expansion of the miners camp is modest, is an acceptable form of development, likely to have little or no impact, but likely to have some minor general benefit by the adoption of the draft POM. The factors weighing against the grant of consent do not lead to refusal. I have considered the DA on its merits and the proposed development warrants development consent having regard to the evidence, including the evidence from objectors. The draft conditions have been agreed between the parties.
2. Accordingly, I make the following orders: 1. The appeal is upheld. 2. Development application number DA 2019/LD-00023 for the expansion of an existing mine workers' village (existing village) by the addition of 20 x 4-bed accommodation units and associated infrastructure and minor alterations to the existing communal areas at Lot 991 in Deposited Plan 1029946 known as 12769 Barrier Highway, Cobar is approved subject to the conditions in Annexure A. 3. Exhibits 1, 3, 4, 5, 6 and 7 are returned. ……………………….. P Clay Acting Commissioner of the Court Annexure A (184469, pdf)

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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: 20 October 2021