Wakefield Planning Pty Limited v Yass Valley Council

The proposal 8The proposal was originally described as being a leasehold subdivision pursuant to s 289K of the Local Government Act 1919. Each of the leases of the individual dwellings was proposed to be for a period of twenty (20) years. This changed as the proceedings unfolded - reflective of the general poor preparation of the original proposal and inadequate responses by the applicant's advisors to the range of issues arising from it. The proposal was, in fact, being refined right up to the conclusion of the hearings - including provision of technical information that, if prepared to address raised issues earlier, would have shortened the process. 9As a consequence, the proposal can now be described as being one for a caravan park with medium-term residential occupation of all but one of the sites. The portion of the overall ~ 227 ha of the site that is not within any of the forty-five (45) individual dwelling elements is proposed to be managed in a communal fashion overseen by a council to be established representing the residents. 10A new access road is proposed to be constructed along the alignment of the Crown road reserve that provides the present track access to the site with an additional element of this road continuing within the overall common landholding through a vegetated area. 11A secondary, emergency access/egress route is proposed from a point on the eastern boundary of the site to run east and then turn, at a right angle bend, to join Shingle Hill Way some 1200 m or so to the south east of the proposed principal access to the site. 12The road to be constructed along the Crown road reserve is proposed to become the responsibility of Yass Valley Council (the Council) whilst the internal roadways are intended to be the responsibility of the owner of the site. The secondary route to Shingle Hill Way is proposed to be constructed along existing tracks and the land over which it is to be established is also in common ownership with the site. This is relevant to issues raised concerning ecological impacts of constructing the proposed access along the Crown road reserve corridor. 13Protected areas are proposed along the various drainage lines and gully erosion and other land degradation remediation works are to be undertaken at the commencement of and during the life of the project. Two significant conservation areas are proposed with one, along much of the site's northern boundary, being for compensatory planting to offset losses elsewhere. 14The project is proposed to be undertaken in seven stages. The plan reproduced below shows the general nature of the proposal and its staging (oriented with the north point to the bottom right). It excludes the proposed vegetation offset areas. These had been proposed only a day or so prior to the commencement of the hearing and remained the subject of expert discussions until near the end of the hearings. The final proposal also incorporates water supply and effluent disposal infrastructure not depicted (the methods for provision of these services are no longer in contention as later discussed).

The site inspection 15The first day of the hearing was given over to hearing evidence from objectors and an inspection of the site itself. The objector evidence was generally given informally onsite. As a consequence of the disagreement by one of the objectors with the proposition advanced by Mr Darroch, the applicant's planner, that the proposed development would not be able to be viewed from any public location, the site inspection also included stopping for viewing at two external locations - these being adjacent to Shingle Hill Way just within the property of one of the objectors at a point approximately 800 m to the north east of the intersection of Shingle Hill Way with the Sutton to Gundaroo Road and, second, at that intersection. The issue of the visual impact of the proposal is discussed later in detail. 16A range of objections was pressed in the onsite submissions. These oral submissions were generally reflective of the written objections that were tendered by the Council. I also observe that there was also some written support, in that tendered material, for the concept of the proposal. 17As is not unusual in objections to proposed developments, a number of matters that were raised by the objectors were either outside the scope of matters permitted to be considered as part of an assessment of the proposal (even taking the concept of the public interest as provided for in s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 at its widest) or were based on fears of what were anticipated to be consequences of the development if it were to be approved but without there being any proper evidentiary basis for concluding that there was any reasonable possibility that those fears would be realised. As a consequence, I have set matters of these two types aside and have not considered them nor dealt with them in this decision. 18With the specific exception of a privacy issue raised by the neighbours to the immediate north of the site, the objections requiring consideration arising out of the public submissions are consistent with (and fall within the scope of) the contentions raised by the Council. 19Agreed notes of the objector evidence given onsite were subsequently tendered during the course of the first phase of the hearings (at Queanbeyan Courthouse). 20After hearing the objector submissions onsite, the site inspection then proceeded to follow the proposed internal roadway layout (except to the extent that a significant element of gully erosion precluded access to the proposed cluster of dwelling in Stage 7 locations in the vicinity of the southern portion of the eastern boundary of the site). 21The site contains numerous dams, a number of which have functioned as gully erosion control structures and others which are merely paddock stocking water supply points. 22Large numbers of kangaroos were observed on the site during the inspection. During the inspection on the site, we stopped at a location on a ridgeline at the northern end of the east/west running pine windbreak where the two ecological experts, Mr Fanning for the applicant and Dr Mills for the Council, gave evidence concerning the forest types on the site and their locations and the native grassland vegetation on the site. They also, subsequently, gave informal evidence as we left the site at the point where the main access road is proposed to enter the site from the Crown road reserve. 23The site inspection, generally, followed the proposed internal road layout with stops at various locations to obtain a broad picture of where the proposed dwelling sites were located. The proposed 4,000 sq m or 8,000 sq m dwelling blocks were not individually marked nor were the proposed dwelling sites marked at each of these locations. However, for the purposes of the assessment required to be undertaken in these proceedings, such a degree of precision was not necessary and a sufficient general impression was able to be obtained of the overall development proposal. 24As I will discuss in more detail later in consideration of the relevant expert evidence relating to land degradation, the extensive gully erosion on the site provided a range of opportunities to view sectional profiles of the soil on the site at varying depths with it being obvious that the topsoil depth was only some 200 mm or so. It was also possible to observe, from the drive around and the various locations at which stops were made that the topsoil included very significant small rock elements within it. In addition, at several locations, larger rock protrusions were to be observed coming out of the soil layer. 25One stop was made during the course of the traversing of the site at a location adjacent to the boundary fence in the vicinity of the large dam on the neighbouring property (over the boundary fence from proposed dwelling sites 5 and 6 on the plan reproduced above) where privacy impacts were said by the neighbours to be likely to occur arising from recreational use of that dam - the dam being some 150 m or so from the shared boundary fence. 26Other unmade Crown roads run along three of the boundaries of the site (not along the southern boundary) and through the site in its eastern third (in a generally north/south alignment with a dog leg in the middle). These unmade Crown roads can also be seen on the reproduced plan. No controversy arises in the proceedings because of their existence but issues requiring resolution concerning them are discussed later. 27Finally, it should be noted that the site is currently being used for low intensity cattle grazing whilst surrounding properties are used for a variety of purposes including cattle grazing, fine wool production and lifestyle rural residences.

Evolution of the proposal 28The proposed development has undergone a significant range of changes in its evolution since it was originally proposed for consideration by the Council. It is unnecessary, for the purposes of these proceedings, to describe that evolution in detail. However, it is appropriate to note that that evolutionary process was ongoing with changes to the proposal emerging not only in the days immediately preceding the hearing but also throughout the hearing itself. 29What is now proposed (agreed to be characterised as a caravan park as discussed below) contains forty-five (45) individual identified sites. Thirtythree (33) of these sites are proposed to have an area of 8,000 sq m, eleven (11) are proposed to be of 4,000 sq m with the final site to be a caravan site (to trigger definitional compliance as a caravan park). 30All but one of the sites is proposed to have erected on it a new moveable dwelling with its own rainwater harvested water supply (with centrally reticulated top up facility) and serviced by seven stage-based cluster effluent disposal systems. 31The final site is proposed to have a caravan located on it. 32Two different sizes of dwelling are proposed - with the larger sized dwellings to be located on the larger sized sites. All dwellings are to be single-storey. The site of the existing manager's residence is proposed to be used for a combination of a community facility and a men's shed. Renovation of the existing structure (located at the end of the road running toward the western boundary in Stage 7) is proposed to enable these uses to be undertaken. As noted at (10), a new access road is proposed from Shingle Hill Way.

Caravan park or mobile home village? 33One of the matters of potential statutory interpretation complexity, arising at the commencement of the proceedings, was whether or not the development should be regarded as being a caravan park (and thus dealt with pursuant to State Environmental Planning Policy 21 - Caravan Parks [SEPP 21]) or a manufactured home estate (and thus requiring to be dealt with pursuant to State Environmental Planning Policy No 36-Manufactured Home Estates). This arose because the state of the application at the commencement of the in Court proceedings was based on forty four (44) of the locations being proposed to have a moveable dwelling placed on them with the final one to be that containing the renovated present manager's cottage. The relevant definition of a caravan park contained in cl 6 of SEPP 21 is in the following terms: caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed. 34The interpretation of this provision adopted on behalf of the Council was that, for it to be satisfied, there needed to be at least one caravan at a location on the site in addition to the various moveable dwellings. 35In response to this proposition being put during the course of opening submissions by Mr Clay SC, counsel for the Council, Mr Staunton, counsel for the applicant, conceded that satisfying the definition was required and sought leave to amend the application to include the installation of a single caravan on the site at a location to be specified subsequently. Leave to amend in this respect was not opposed and was granted, in principle, subject to specification of the location proposed for the caravan. Prior to the conclusion of the hearing, it was specified that the caravan would be located in Stage 1 in the southwestern quadrant of the internal road junction in that stage. This means that there would be a caravan on site and available for short-term occupation from the commencement of occupation of Stage 1. 36Clause 5(4) of SEPP 21 also permits the use of land as a caravan park in which manufactured homes are or are to be installed or placed. Thus, provided that there is at least one caravan, the remaining dwellings can be of the type proposed and the overall development remain properly characterised as a caravan park. 37As I understood it, by the end of the hearing, the applicant accepted that it would be appropriate to designate this caravan as being one appropriate for short-term occupancy only. 38It was agreed that, as a consequence of the evolution of the proposed water supply and effluent disposal arrangements (discussed in more detail later), satisfactory provision could be made to service the proposed caravan. 39The resolution of these two matters in this fashion rendered it unnecessary to address them further in any contested fashion.

Land degradation 40The extent of the degradation of the land was brought to our attention dramatically during the course of the site inspection. In particular, the extent of the gully erosion, erosion which has been an issue for a considerable period of the time from the depth of the erosion gullies visible during the site inspection (confirmed by the discussion in the report from Mr Houghton, the Council's agricultural land use expert), is more than 1 m in depth at a number of locations. We also saw erosion gullies that were several metres or more wide. 41One major gully erosion impact, located in proposed Stage 7 (a little to the north and west of proposed dwelling sites 43 and 44) was described by Mr Fanning in terms that left no doubt that the extent and nature of the remediation works that were required would be significant. 42I set out below, at some length, the assessment by Mr Houghton concerning the land's agricultural capability and present state. I have also set out the relevant extracts from the report of Mr Dymock, the applicant's agricultural land use expert, and from the joint report of Mr Houghton and Mr Dymock. 43First, I turn to set out material from Mr Houghton's Statement of Evidence (Exhibit 10) - starting on page 3 and commencing from his Site Description (appendices not reproduced): The land is approximately 227.5 hectares in size, comprised of with the principal land use being sheep and cattle grazing. There is no evidence of cropping having been carried out on any of the land in recent years, and most of the land is too fragile and shallow to allow seedbed preparation for such uses. There are some limited areas of moderately fertile soils on the lower land to the south west of the property, but the soils over most of the property are shallow with a low water holding capacity, and lacking in the nutrients required for vigorous plant growth (See Appendix A). The soils on the property are also highly of erodible and the scars from past and ongoing erosion are a feature of the property. Areas of dryland salinity can be found to the south and south east of the property. These areas are badly eroded and will be difficult to remediate. Has been a lot of soil conservation remediation work conducted on the property in the past; probably back in the 1960s and 70s when the NSW Soil Conservation Department was well funded and very active. The property is generally very well watered, also as a result of the many dams constructed as part of the past soil conservation works. Many of these dams however are shallow and should not be considered as drought proof. The soil test results shown in Appendix A are typical of soils in this locality. They show that those soils in the lower landscape have moderate productive potential, and the soils in the upper slopes and ridges have low potential. The level of acidity and aluminium, and the nutrient are also typical of soils of being used for grazing and other agricultural pursuits with limited inputs of fertiliser and lime. The soil from the salt scald is severely affected by salinity and sodicity, and the remediation of these areas is complex and expensive. Unless addressed these areas will become highly eroded and much of the remaining topsoil will be lost. The more useful pasture on the property consist of mainly of native grasses, with some scattered remnants of phalaris (phalaris aquatic) and cocksfoot (Dactylis glomerate), and subterranean clover (Trifolium subterranean) on the lower slopes and valley floors. The most extensive area of improved pasture species can be found on the lower SW corner of the property. Many naturalise grasses such as silver grass (vulpia myuros) and soft brome grass (bromus sp.) are also present. There were limited useful pasture species on the upper slopes and ridges. Useful native pasture species found across the property include a range of native grasses including several Poa species, wallaby grasses (Austrodanthonia spp), wheat grass (Elymus scabra)and weeping grass (Microlaena stipoides). On the ridges with shallow soil cover eucalypt timber such as brittle gum (E. manifera) and scribbly gum (E. rossi) dominated and re anther wallaby grass (Echinochloa pallida) was present. These species are indicative of shallow an infertile soils. Some yellow box eucalypts (E. melliodora) can be found near the property entrance at the NE corner and are indicative of moderate fertility soils. There were cattle running on the property at the time of inspection. They were mainly grazing on the few better grassed tactics in the SW corner of the property. There was evidence of sheep grazing as shown by tracks and manure, but none was seen at the time. Up until the late 1980's when fine wool prices declined markedly, fine wool production would have been the main enterprise on the land. A common land management practice when producing fine wool on similar land was to clear most trees, possibly sow new pastures on better soils, spread fertiliser infrequently when spare funds were available, and then stock the land very heavily. As a result the sheep would produce fine more valuable wool from sheep being undernourished ("hungry fine"). Regular overgrazing would have reduced groundcover below critical thresholds allowing the topsoil to be lost through wind and water erosion. The majority of this property is now very exposed to the wind with the few remaining old trees across the cleared areas gradually dying out. The property is relatively free of serious environmental weeds, although sweet briar (Rosa rubignosa) and blackberries (Rubus fructicoais) are common in places. Scattered serrated tussock (Nassella trychotoma) plants can be found but they have mostly been sprayed. In regard to land classes, I can confirm that most of the Land comes under the classification of Class 4, and there is some Class 3 land in the south west corner of the property. 44In addition, in the portion of his expert report under the heading Discussion, the first point Mr Houghton deals with is: Can you please describe the current agricultural uses of the land in the land in the vicinity of the land (Contention 8)? The Land where the development is proposed is presently used for sheep and cattle grazing, being a very low stocking rate relative to district averages. Sheep and cattle grazing appeared to be the main agricultural land uses on the neighbouring property is the most productive examples seen on the better land to the west and south. Environmental conservation (lifestyle bush blocks) appear to be the dominant land use to the north east of the land. It appears that the management of the pastures or stock on the Land has been very lax, as many of the fences are in poor repair and gates are left open for stock to wander where they like. Cows were calving at the time and open gates like this can lead to cows and calves being separated. Calves would not survive or long in hot weather without their mothers. Such management also encourages overgrazing of the fragile vegetation cover. There was evidence of both sheep and cattle grazing on surrounding properties, but no goats, alpacas or other livestock were seen. A serious effort of pasture improvement is evident on one neighbour's paddock (adjoining NW corner) where a productive phalaris based pasture growing, in stark contrast to the degraded pasture and groundcover situation that exists on the subject property over the fence (See Image 6 below). 45Mr Houghton was also asked what was the agricultural potential of the land. In response, in his witness statement, he said: I believe that the agricultural potential of the Class 4 land on the property is limited to light grazing. Agricultural or horticultural enterprises that require good soil depth and fertility could not be considered. Only the Class 3 land in the very south west corner has adequate soil depth and fertility to support good pastures or broad-acre crops. This land however has the limitation of being frost prone, which rules out many horticultural pursuits. In my opinion for the overall property to be more economically viable it needs one or more high value horticultural crops to be grown, supplemented by irrigation water. This would concentrate the earning potential for the property to a small area of better quality soil, and allow appropriate levels of imports to be introduced to improve the production potential. Wine grape production is being considered and there are possibly a couple of hillsides with cold air drainage, the correct aspect, and adequate soil depth to be suitable. Commercial market gardening frost tolerant vegetable varieties such as those shown below in Table 1 may be a possibility on some of the area if irrigation was permitted. There appear to be plenty of sites for the construction of a good sized dam for this purpose. [The table there listed: Asparagus, Broad Beans, Brussels Sprouts, Cabbage, Cauliflower, Carrots, Celery, Onions, Lettuce, Leeks, Peas, Parsnips, Potatoes, Rhubarb, Silverbeet, Swedes, Turnip] Returns from broadacre grazing sheep and cattle on this property would be unlikely to earn enough to cover the Council rates. In addition to this, continued uncontrolled grazing is likely to exacerbate the erosion problem the long-term cost of continued land degradation will be very high. In my opinion, most of the soils and their vegetation cover on the property are too fragile to be grazed on a regular basis. 46Mr Dymock's statement (Exhibit F) was somewhat more laconic than that of Mr Houghton. Mr Dymock visited the site on two occasions in late 2013. With respect to his observations on these occasions, he said, in his statement: On both visits to the site I formed the opinion that this is very badly eroded and degraded agricultural land. The western facing slope has active sheet erosion. On the eastern side of the holding is severe and active gully erosion. 47A little further on in his statement, he said: In my opinion following my two visits to the holding, the proposed development of a leasehold long term caravan site, of 44 sites, on a total of 30.4 ha, will have no adverse impact on the future use of the remaining 197.12 ha of land for agriculture. The most significant impact on the future of agriculture on this holding will be the ongoing soil erosion. 48He further expressed the opinion that the community association may in the long term improve the agricultural resources by erosion control and possibly tree planting. Such a program would provide a better long term future for agricultural production on the holding than the current very unsatisfactory situation. 49He also recognised (Exhibit F, after 5.3) the need for a plan of management for the land holding. 50Mr Houghton also set out, at some length, his concerns about land use conflicts. Such conflicts, he anticipated, would be both between residents of the proposed development and proposed agricultural uses for the residual land and with other property owners concerning their current or future agricultural uses on other lands in the vicinity of the site. These concerns were set out on pages 8 to 11 of Exhibit 10. On the other hand, Mr Dymock dismissed the potential for such conflicts. By implication (given the brevity of his statement), the potential for such conflicts to be avoided/managed is to be by a plan of management and by early re-fencing of the boundary of the site. 51Given the matters that arose concerning a Proposed Property Management Plan suggested in the joint report of the agricultural experts discussed below, it is unnecessary to set out, in detail, Mr Houghton's concerns on the land management conflicts. It is, however, sufficient to note that they were concerns of substance. I prefer the explanation and detail provided by Mr Houghton on this point to the view expressed by Mr Dymock. I have so concluded because of the much more fully analysed position set out by Mr Houghton compared to the more skeletal and less analytic discussion by Mr Dymock on these matters. Confidence that these conflicts can be avoided/managed requires my satisfaction as to the likely future efficacy of the Proposed Property Management Plan proposed by these experts. 52The two agricultural experts produced a joint report (Exhibit 14). They were not required for cross-examination. It is also appropriate to set out, in some detail, a number of relevant (in my assessment) matters dealt with in Exhibit 14. These are as follows Land degradation The experts agree that this area of agricultural land of some 227 hectares is badly degraded by gully and sheet erosion. There are areas of salinity, which are all contributing to the degradation of this land. They agree that past poor agricultural practices, which include overgrazing and over clearing, are the predominant cause of the degradation. Land Use The future of agricultural use of this land is very limited on the residual 200 hectares, should the proposal be implemented. The experts agreed that best initial management program for the land is to remove the area from agriculture entirely. Following that course of action, an extensive restoration and rehabilitation of the land should be undertaken. Agricultural use of the land in the future is limited by the following six important factors; (a)Soil type (b)Erosion (c)Water quantity quality and availability (d)Climate, including rainfall and frost (e)Location (f)Economics Mr Houghton considers as does Mr Dymock, that the removal of 44 caravan sites plus associated road infrastructure, will have very little impact on the agricultural potential of the residue of the holding. Intensive agriculture Mr Houghton considers that there is some possibility of intensive horticulture on the better quality agricultural land in the south west corner. Mr Dymock agrees, stating that there may be some smaller areas in the south west corner that may be suitable to permanent horticulture. Climate, lack of reliable quantities of water and economics will limit such activities. Land management The experts agree that the future management of the land will need to include a comprehensive and ongoing weed control and land rehabilitation program. The weeds that should be targeted include Serrated Tussock, Blackberry and Biddy Bush (Cassinia). They also agree that the 'erosion' be addressed after consultation with authorities that deal with such severe and widespread land degradation. They agree that the hill soils are unstable and without a comprehensive program of rehabilitation, the problem will get worse. 53With respect to the area of conflicts with neighbouring properties, they discussed this topic and, as I read Exhibit 14, two matters were agreed as necessary to address these concerns. These were (as described in their joint report): They agreed that the upgrading of the entire boundary fence was necessary to prevent stock conflict would be essential. They agree that an all embracing 'Farm Management Plan' which covers livestock, horticulture and revegetation of the 4000 metre pads and the management of the residual lands, will assist in the prevention of conflicts. 54With respect to a Property Management Plan (which I have assumed either coincides with or encompasses the Farm Management Plan discussed by them under the heading of Conflicts), these experts said: The experts agreed that a Property Management Plan developed to manage the residual holding will need to be compiled and implemented by a very competent agriculturalist. There are significant issues of soil, plant, water, weed and vegetation that will need close attention. The repair, replacement and strategic rebuilding of internal fences to assist in the rehabilitation of the land will be essential. The experts both have some concerns that in their experience the implementation and management of this aspect of a proposal such as this will be neglected. 55My purpose of extracting the above material is to provide an appropriate basis for the following matters that are necessary to be understood given my conclusion that this proposed development should be rejected. 56First, I do not seek to found any conclusion that, because of the past poor agricultural land management activities of the landowner, the landowner should be precluded from being granted a development consent for the currently proposed development. Such a position, akin to the "clean hands" doctrine in equity proceedings, was specifically disavowed by Mr Clay as being advanced by the Council. I therefore draw no negative inference from the poor past land management by the landholder. 57However, second, the facts that:

• the land is quite severely degraded as described in the reports and as was self-evident during the course of the site inspection (a position that has clearly emerged from very many years of neglect and overgrazing); and
• the land is proposed to be remediated as a consequence of this proposed development should not be, in my view, a factor that weighs in favour of the landholder as a matter of general planning theory. However, as discussed later, this proposition must be revisited in the context of the provisions of cl 12(2) of the Gunning Local Environmental Plan 1997 (the 1997 LEP). 58The land has been, as I understood it, in the ownership and control of the present landholder for very many years and it is reasonable to conclude, in my view, that the site's present degraded state is largely (if not entirely) a result of the land management activities (or lack thereof) by the landholder. I am not to be taken to be concluding that any negative inference should be drawn against the landholder as a consequence. However, I have, specifically, concluded that I should give no weight, as a matter of general planning consideration, to the environmental benefits to be obtained from the remediation of the land as proposed as a factor in favour of granting development consent for this proposal. 59Finally, based on the evidence of the two agricultural experts about the extremely degraded state of the site and the absence of clarity and certainty about future management of the site if the proposal were to be approved, I am left with a profound sense of unease that the broadly painted picture of future land management for the property could be achieved in the fashion envisaged by the proposal. In saying this, I have not weighed this in the balance as contributing to my reasons for refusing the proposal but I am fortified in my view that refusal is appropriate because of this. 60Had I been otherwise satisfied that other matters did not stand as fundamental impediments to approval of the proposed development, my sense of unease could have been addressed by the preparation and settling of a plan of management for the whole of the development, including future agricultural activities, and the incorporation of that plan into conditions of consent. The property management plan would be a significant (but by no means the only) matter requiring determination prior to granting any consent (as discussed in more detail later). Whilst development of the terms of that document may have been a complex and potentially contested aspect of possible conditions of consent for an approved proposal, it does not necessarily raise an insuperable barrier. As a consequence, the absence of such a plan, at this stage, cannot contribute to the reasons for refusal of the proposal. 61I should observe that, if I am wrong in my conclusion that the proposal should be rejected, the description of the agricultural experts as to the imperative for the completion of the remediation process and the necessity to take the land out of agricultural production for a period would tend to incline me, in any conditions of consent, to require that the land degradation repairs be completed, in their entirety, prior to any occupation of any of the proposed dwelling sites and that the only works that should be considered as appropriate until this had occurred would be those works necessary to provide access for the purposes of remediation. 62Indeed, although I am satisfied that a comprehensive initial remediation program has been devised (and has been schematically depicted in marked up orthophotomaps included in Exhibit L), the extent of those works and the establishment of the necessary stabilisation vegetation will necessarily require protection of the areas involved from human or animal interference for some time. It may well be that, if there were to be sufficient intervals between the successive stages of the project that the desired longer-term outcome of the remediation process could be ensured. 63The interrelationship between the staging of the proposal were it to have been approved and the necessary "rest periods" for the land to ensure the long-term sustainability of the necessary remediation works could have been dealt with by conditions of consent. It would have been necessary to explore, in the consideration of what would be the appropriate conditions, whether mandated intervals would be needed to be imposed on the various stages (particularly prior to Stage 7) to ensure long-term viability of the rehabilitation measures. 64Whether or not some further period, after the completion of the remediation program, should also elapse before any further construction were permitted to commence (in order to ensure the proper establishment of the remediation process) is also a matter that might warrant consideration to be incorporated in any conditions of consent if my conclusion that the proposal should be refused were to be incorrect. 65Those, however, are matters to be dealt with in any future discussion of conditions of consent if that were to become necessary (as are the other matters adverted to in such a context).

The general Crown roads issue 66Access to the site from Shingle Hill Way is currently obtained by utilising a track that meanders along a length of unmade Crown road that follows the eastern boundary of the adjacent property before turning to the west at a location some 500 m from Shingle Hill Way (where the boundary of the adjacent property also turns to the west). The track continues in this new direction for a further 200 m or so before turning in a generally southwestern direction onto the site itself. 67The first portion of this existing Crown road access is proposed to be constructed to an 80 km/hr standard all weather road, along the portion of the Crown road from Shingle Hill Way to where it turns west to follow the adjacent property boundary. The extension to the access is proposed to be constructed directly toward the proposed caravan park development elements in Stage 1 on the site (see plan after (14) above). This road construction, both along the Crown road and to the location of the proposed Stage 1 sites is, itself, proposed to be constructed as part of the Stage 1 works. 68The portion of the Crown road reserve proposed to be utilised for the access road is presently heavily vegetated with both understorey vegetation and a significant number of trees ranging in size from regrowth saplings to substantial mature trees. The present dirt access track follows a somewhat meandering path along this vegetated corridor. 69Construction of the proposed access road along this portion of the Crown road reserve to an 80 km/hr all weather access road of sufficient width will, it is agreed between the parties, necessitate the removal of a significant number of the existing trees within the corridor. The appropriateness or otherwise of a permitting the removal of these trees is one of the substantive ecological issues pressed by the Council as an impediment to approving the proposal. This is discussed in detail later. 70There are also a number of unmade Crown roads that are also relevant in the proceedings as they either follow three of the boundaries of the site or traverse the site itself. Elements of various stages of the proposed development involve works on (and occupation of) elements of these Crown road reserves. In addition, given the nature of the application for approval for use for the proposed development of all of the land contained within the outer boundaries of the parcels that are encompassed by the proposal, the existing Crown road that is within the site running through the middle of the site parallel to the eastern boundary of the site, stands as an impediment to approval (as no owner's consent from the relevant Crown authority has been given to the incorporation of the relevant Crown road reserve into the proposed development). 71Although this is a substantive impediment to approval of the proposed caravan park at the present time, it is not an impediment that is incapable of resolution if the overall proposal were to be acceptable. A sufficient period of time would have needed to be allowed to permit applications to regularise the position to be made and processed. The issuing of development consent would have necessarily been contingent on the successful outcome of such a process. Whilst resolution of these matters would have delayed finalisation of the proceedings had the proposal been otherwise acceptable, the necessity for this would not have stood as an impediment to an approval (had this outcome been appropriate). Indeed, the time necessary could usefully have been devoted to attending to the deferred matters discussed later. 72Indeed, given the time and expense that would be involved in triggering those processes, it would have been unreasonable to expect that this aspect (the Crown road reserve issues) would have been dealt with prior to determining whether, on the much broader merit issues, the proposal warranted development consent.

Effluent disposal 73Evidence was given both written and orally on effluent disposal and water supply matters by Ms Holliday on behalf of the Council and Mr Norris on behalf of the applicant. The statutory framework for consideration of this issue arises out in the relevant provisions in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Regulations). For the reasons set out below, it is not necessary to quote the Regulations. 74The position adopted by the Council during the first stage of the hearings was that, as it was not proposed that this development be connected to a mains sewerage system, it was necessary for there to be a single effluent disposal system to serve the whole of the development. 75I should observe that Ms Holliday suggested, during the first stage of the hearings, that, as an additional option, some form of multiple dwelling, cluster arranged effluent disposal systems might be appropriate so that there would not be individual systems nor a single, development wide, system but a series of separate systems - each of which would serve multiple dwellings. This concept was canvassed, in broad terms, as one potentially able to be based on the staging process proposed for the development (with the possibility that there might be more than one cluster-based system in one or more of the stages depending on topography, as I understood the tenor of her evidence). This was not, at that time, embraced by the applicant and effluent disposal by stand alone system for each site was the position advanced. 76However, as part of the wide-ranging revision of the proposal between the first and second phases of the hearings, a revised effluent disposal scheme was developed that embraced the suggestion by Ms Holliday earlier referred to. This revised scheme, incorporated in the finally amended version of the application now to be determined, would involve the establishment of seven separate, clusterbased effluent disposal systems. Each of the proposed systems would service a group of dwellings reflective of the various proposed stages of the development. 77Each of these systems would be installed, as I understood it, as a precursor element to the release for occupation of the stage that it was intended to service. 78Management of each of these cluster-based systems is proposed to be the responsibility of the centralised management authority for the proposed development. It is not intended that any individual dwelling occupant or any collective grouping of occupants in the individual cluster have any responsibility for the management of the system servicing that cluster. 79Although I consider that such a system has inherent potential weaknesses, the Council has accepted that this provides an appropriate and acceptable basis upon which effluent disposal for the proposed development could be managed. As a consequence, although I may have reservations about such a scheme, there is no proper evidentiary basis to reject it and it cannot stand, in any fashion, as an impediment to the proposed development. I accept that my concerns could be addressed in conditions of consent. This, in turn, forms an element of the significant matters deferred to be considered had the broad proposal warranted consent. 80Despite the fact that there is in not proposed to be a single centralised effluent disposal system, the proposed effluent disposal arrangements cannot stand as an impediment to approval of the development.

Potable water supply 81The potable water consumption/harvestable rainwater calculations in the September 2012 report adopted by Mr Norris shows that the dwellings on the 4,000 m2 sites will need to import at least approximately 40 kilolitres of water per annum (based on the harvestable roof area assumed by the report and making an allowance for a single first flush diverter, such provision being absent in the report's calculations) and some 10 kilolitres of water per annum for the dwellings on the 8,000 m² sites (making the same assumptions as for the smaller sites). 82I accept that a requirement for a whole-of-site reticulated water system without taking advantage of the potential roof harvesting of water from the individual dwellings would be manifestly unreasonable. To suggest that a single system for the whole of the site should be installed without this would require the importation of the totality of the necessary water (approximately 5 gigalitres a year) compared to approximately one-seventh of the amount if individual site water harvesting and use were to be incorporated in what would be a complementary and top-up based dual source scheme. 83The finally amended proposal, as it emerged from the second stage of the hearings, provides that, in addition to the individual rainwater harvesting from each proposed dwelling to tank storage to service the needs of that dwelling, there will be a central reticulated top-up water supply managed as part of the corporate administration of the scheme. This centralised supplementary water supply would be reliant on importation of water with sufficient frequency to ensure that adequate reserves are available. 84Although I consider that such a system also has inherent potential weaknesses, as with effluent disposal, the Council has accepted that this provides an appropriate and acceptable basis for a centralised water supply system and does not raise any concerns about it. As a consequence, although I may have reservations about such a scheme, there is no proper evidentiary basis to reject it and it cannot stand, in any fashion, as an impediment to the proposed development. I accept that my concerns could be addressed in conditions of consent. However, operational matters relating to water supply also form an element of the significant matters deferred to be considered had the broad proposal warranted consent.

Introduction 85Mr Darroch, giving planning evidence for the applicant, and Ms Makin, the Council's strategic planning manager, provided written statements, two joint conference reports and gave oral evidence on the planning issues during the course of the proceedings. In this context, it is to be appreciated that several issues linked to compliance with elements within the framework of SEPP 21 fell away during the course of the proceedings given the quite significant changes that were made to the proposed development, changes reflected in the much more detailed and heavily amended plans relied upon after the various amendments were made to the proposed development during the course of the proceedings.

The planning framework 86As there are no longer any impediments raised by SEPP 21 and the only now relevant requirement is that in cl8(1) of SEPP 21 requiring that development consent must be obtained from the Council. 87However, it is relevant to the discussion concerning deferred matters to note that cl 8(4A) of SEPP 21 is as follows: ........... nothing in this Policy or any other environmental planning instrument requires separate development consent to be obtained for the installation or placement of a moveable dwelling on land on which development for the purposes of a caravan park is being lawfully carried out. 88This has the effect of requiring all matters of significance require to be addressed and determined at this broad stage - hence the discussion of deferred matters later. 89The relevant planning framework requiring consideration is to be found in the 1997 LEP. The site is located in Zone 1(a) (Rural Zone). The zone objectives for this zone are: (a) to maintain the rural character of the area of Gunning, (b) to encourage the use of rural land for agriculture and other forms of development which are associated with rural activity or which require an isolated or rural location, (c) to ensure that the location, type and intensity of development is appropriate, having regard to the characteristics of the land, the rural environment and the need to protect significant natural resources, including prime crop and pasture land, (d) to minimise the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, (e) to ensure that the soils within this zone are protected and maintained in good condition, and that the water quality is maintained above a minimum standard determined by the Council. 90There are then two further provisions of the 1997 LEP called up in this determination process. The first matters arise from cl 9. The provision deals with general matters and is in the following terms: 9 What must the Council consider when deciding whether to consent to development? (1) In deciding whether to consent to development of land, the Council must consider the objectives of the zone in which the land is situated. (2) In deciding whether to consent to development of land, the Council must also consider: (a) the present use of the land and the potential of the land as prime crop and pasture land for sustained agricultural production, and (b) the vegetation, timber production, land capability (including soil resources and soil stability) and water resources (including the quality and stability of water courses and ground water storage and riparian rights), and (c) the future recovery, from known or prospective areas, of valuable deposits of minerals, coal, petroleum, sand, gravel or other extractive materials, and (d) the protection of areas of significance for nature conservation or areas of high scenic or recreational value, and places and buildings of archaeological or heritage significance (including Aboriginal relics and places) and the conservation of native flora and fauna, and (e) the cost of providing, extending and maintaining public amenities and services to buildings or works that will result from carrying out the development, and (f) future expansion of settlements in the locality and the impact on any existing settlement or village, and (g) vulnerability and exposure to natural disasters such as bushfires and floods. 91The second matters arise from cl 12. The provision deals with matters specific to the rural zone and is in the following terms: 12 What are the general principles the Council will consider for development proposed in Zone 1(a)? (1) Before granting consent to any development of land within Zone 1 (a), the Council must consider: (a) any impact the development will have on the future or current agricultural use of the land and of adjoining land, and (b) whether an adequate water supply is available, and (c) what services are or may be required, and (d) any natural hazards likely to affect the development on the land or other land as a result of the development, and (e) what effect the development might have on water quality, and on land with environmental or conservation value, and (f) the effect the development will have on aquatic fauna or habitat and the natural flow of any watercourse or stream, and (g) the effect the development will have on riparian vegetation and habitat, and (h) whether the development will contribute to ribbon development or substantially change the appearance or character of the amenity of the locality. (2) When considering these matters, the Council must also take into account any measures that may be taken to minimise any adverse impact and also whether the benefits of the development outweigh any adverse effect.

The planning context 92The principal planning context relied upon by Mr Darroch in support of the proposal is a subdivision known as Bywong. It is located a little to the south and west of the site. This subdivision of some 16 allotments was created from a landholding of approximately 500 ha. There is a wide variety of allotment size within this subdivision with the smallest allotment being of ~ 26 ha with the largest being of ~ 459 ha and a total area of ~ 16 sq km. 93Mr Darroch relies on the Bywong subdivision to support the proposition that, put in broad terms, it is unnecessary to insist that a new subdivision pattern or pattern of residences proposed to be erected on a large landholding (as is the case with this proposal where approval is sought for 44 dwellings and a caravan on 217 ha without formal subdivision but with, merely, designated individual land element allocations secured by a lease within the caravan park rather than formal subdivision) should not be regarded as inappropriate even if it is not of the same general land tenure pattern of other landholdings within the broader locality. 94In the joint expert report (Exhibit 13), in an extract concerning comments in his statement of evidence (Exhibit C at pages 19 and 20), Mr Darroch describes the nature of this subdivision in the following terms: ........... the land directly adjoining the subject site to the south and west has recently been approved for subdivision into five allotments with areas of 26.37ha, 26.73ha,55.04ha, 55.15ha and 80.18ha. A further 10 adjacent lots range from 31ha - 57ha. 95Ms Makin's response in Exhibit 13 to these comments concerning the structure of the Bywong subdivision were: The subdivision of Bywong to the west and south of the site is not rural residential. While the minimum lot area approved was 26 ha, the largest was 459 ha, with an overall average of 80 ha. 96Reproduced below is an air photo (Exhibit C at page 20) with the outer boundaries of Bywong marked by me in yellow and those of the site in green. 97The internal boundaries of the Bywong allotments may be detected in fainter yellow. 98The second element of broad planning context that was relied upon by Mr Darroch as demonstrating the lack of impact of the proposed development (and, thus, in his opinion, there being no basis for its rejection) was the proposition that there would be minimal intrusion of the proposed development in a broad public domain context and thus no adverse impact from it. 99Ms Makin contested these propositions and, essentially, took the position that the proposal could not be accepted as appropriate in its surrounding context.

Visual impact 100Although Mr Darroch initially expressed an opinion that he did not expect any (or any significant) elements of the proposal to be able to be observed from the public domain, he had resiled from this position by the end of the evidence in Court and accepted, as I understood him, that some of the dwellings would be able to be observed from either the Sutton to Gundaroo road or from Shingle Hill Way. However, it remained his position that such viewing was likely to be transitory and fleeting and that, as a consequence, such visual impact as this might have would be insignificant. It was also his opinion, as I understood the broad effect of the whole of his evidence on this point, that that which would be able to be observed from the private dwelling on Shingle Hill Way would, in itself, not be so unusual as to be unacceptable or to contribute to any conclusion that the proposed development was unacceptable. 101During the course of the site inspection, it was not possible to identify with precision which of the proposed dwelling locations would be able to be viewed from the public domain on either the Sutton to Gundaroo road or Shingle Hill Way and the photographic evidence available added limited further precision. Despite this, there can be no doubt that a number of the dwellings will be able to be seen from each of those roads. 102This position was apparent not only from the points where we looked back toward the site from the intersection of the Sutton to Gundaroo road and Shingle Hill Way but also from the fact that, whilst we were on site, there were several locations where these roads could be observed from within the site. 103In addition, one of the residences (noted at (15)) several hundred metres from Sutton to Gundaroo road on Shingle Hill Way, is set back 100 m or so back from that road on a slope facing toward the east and thus, although on somewhat of a diagonal, on an opposing slope to the site. Although, during the course of the site inspection, we did not visit this dwelling, we did look back towards the site from a point a little within the boundaries of this property and it was obvious from the extent to which the site could be seen from that point that a range of the built elements proposed for the site would also be able to be observed from this dwelling or its immediate curtilage. 104The planning experts endeavoured to provide some clarity on this point by their discussion of photographic evidence in Exhibit 19. However, this is not a matter warranting a fine-grain analysis - matters of broader principle are engaged for reasons discussed below. 105That which will be able to be observed from any of these external viewing locations will be a distinctly different building pattern to that which exists within the immediate landscape. 106Whilst I am satisfied that there will be no location where the whole or even a major portion of the proposed development will be able to be viewed from the public domain (a position also applicable to the private dwelling referred to above), nonetheless the built form of multiple dwellings with separations of 80 to 100 m or so will be distinctly different from and out of character with the nature of the rural setting within which they are located. Visually, the proposed development will form a habitation pattern that will be alien in the local landscape. 107Mr Darroch suggested that the analysis of the proposal should be undertaken on a qualitative as well as on a purely qualitative basis. In this regard, he pointed to the benefit to be obtained by the rehabilitation of the degraded areas and the retention of the more economically viable agricultural areas on the site. I note that Ms Makin conceded that the proposed rehabilitation is a substantial benefit for the land and that this restoration is entirely consistent with the relevant zone objectives. 108Ms Makin, as I understood her evidence, accepted that some greater density was theoretically possible and that a number of dwellings could be appropriate across the site but that the present proposed density was not appropriate as it was not consistent with a rural context. She suggested that a density of, perhaps, 5 to 10 dwellings across the totality of the site might be appropriate. Although she gave evidence concerning matters of visibility of the proposed development it was not, as I understood her, her major concern and that, in the event, she agreed that improved landscape screening could, at least to some extent, ameliorate this impact. 109I turn to consider the matters arising under cll 9 and 12 of the Local Environmental Plan. 110With respect to cl 9(2), I am satisfied that none of those matters are called up for specific consideration. However, cl 9(1) requires me to consider the objectives of the zone in which the land is situated. The zone objectives have been set out earlier. 111I remind myself, at this point, that the extent to which I must have regard to the zone objectives poses a less stringent testing of a development proposal than a requirement that such a proposal be consistent with the zone objectives. 112Mr Staunton submitted that I should conclude that the proposal promoted objective (b) because it provided a framework within which the better areas of the land would be promoted to be used for higher-order agricultural activities than at present (a proposition that I accept subject to my reservations earlier expressed about the need for a plan of management for the broadacre activities proposed for the site). He also put that the proposal was responsive to zone objectives (d) in that the present fragmentation of the site into a number of separate titles would be eliminated by its consolidation into a single title with approximately 149 ha of the resultant allotment being given back to the viable agriculture in a framework that also ensured the significant rehabilitation of the degradation of the land. 113There was, he said, no issue arising from the second limb of objective (d) as the site was comparatively close to Canberra, Sutton and Gundaroo and the proposed community bus would ensure that those living on the site would not pose a significant drain on public resources - accessing public amenities and services would not be, as I understood him, increased because of the location of the site and the dwellings upon it but would be as if the occupants were members of the community on an equal basis with those in nearby villages. 114On the other hand, the foundational thesis of Mr Clay on the zone objectives was, as I understood it, that zone objective (a) requiring the maintenance of the rural character of the area of Gunning, was fundamentally breached by the proposal. It was his submission that the density was different from that of the comparatively nearby Bywong subdivision and was radically so. He relied on the evidence given by Ms Makin that a maximum of 5 to 10 dwellings on the land was capable of being absorbed in its context. In this regard, nothing remotely comparable to the proposed density existed anywhere in the vicinity of the site, he said. In effect, it was proposed to create a small community on this single location. 115Each of the advocates relied, in differing fashions, in this planning aspect of the proposal, on the decision in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237. 116Mr Staunton relied on it for the broad proposition that, as caravan parks were a permissible form of development on the site, the general presumption that some development of that nature could be permitted unless there were some compelling reason to reject it. He relied, particularly, on paragraph 117 of that decision. On the other hand, Mr Clay relied on the comments in paragraphs 118 and 119 as qualifications to that broad proposition and suggested that the constraints of the site were such that the presumption needed to be set aside. 117In the context of the planning issues (as opposed to the ecological issues discussed below) I do not find BGP Properties of assistance given that Ms Makin had conceded that a smaller scale development (which I did not understand her to be saying that this could not meet the requirement to be designated a caravan park) of a maximum of 10 dwellings or so was capable of being accommodated on the site without being completely alien in its context. Thus there is, in no sense, any suggestion that this site should be 'sterilised" for use as a caravan park. 118For completeness, prior to expressing any conclusion on the broad planning issues, it is appropriate to turn, briefly, to the provisions of cl 12 of the LEP, a clause that calls up the general principles that I am required to consider for development proposals in this zone. I am satisfied that I can do so shortly. 119First, I observe that a number of the matters in cl 12(1) are not relevant in these proceedings, in my view. They are the matters contained in cl 12(1)(b), (c), (d), (e) and (g). 120With respect to cl 12(1)(a), I have earlier set out the position with respect to the proposed future agricultural use of the land and its contrast with the current agricultural uses and the impact. The expert evidence also canvassed the question of impacts on the neighbours' agricultural use of any of the adjoining lands. I am satisfied, in this context, that a properly prepared farm plan of management, if imposed as a condition of consent and implemented, could properly manage and/or mitigate such impacts. 121A similar position applies with respect to cl 12(1)(f) in that the proposed rehabilitation of the past of land degradation could only have a positive effect on the natural flow of the intermittent streamways located on the site. 122The provision contained in cl 12(h) requires specific discussion. The provision is in the following terms: Whether the development will contribute to ribbon development or substantially change the appearance or character of the amenity of the locality. 123It is clear that the proposal will not contribute to ribbon development and, given the comparatively minor visual impact of the proposal (with the exception of the impact of viewing from the dwelling on Shingle Hill Way from which it will be, at least in part, permanently visible) there will be no obvious effect of changing the appearance of the locality. What might be meant by the words "character of the amenity of the locality" is a little clouded with obscurity. However, the only specific amenity impact raised with respect to the proposal to is that of the privacy of one neighbouring family in using one of their farm dams for recreational purposes, a proposition discussed specifically later and not found to weigh against the proposal in any fashion. 124I next turn to cl 12(2), a provision in the following terms: When considering these matters, the council must also take into account any measures that may be taken to minimise any adverse impact and also whether the benefits of the development outweigh any adverse effect. 125I have earlier discussed the significantly positive aspects of the proposed remediation of the land degradation of the site. Those benefits do not require repeating. I also set out the reasons why, in the context of broad planning principles there discussed, I did not consider that this should be taken as a positive in support of the proposal. 126However, this particular provision of the 1997 LEP calls that up and requires me to revisit my earlier general principle conclusion. As a consequence, it is necessary to turn back to the matter that constitutes the fundamental impediment to approval of the proposal, the first of the zone objectives for the Rural Zone, this being: (a) to maintain the rural character of the area of Gunning. 127In reality, the extent to which the proposed development can be seen from a public place and the duration of the transit on a public road for which this might occur is, in fact, a red herring. It is the existence of the proposed development at its location in the zone that is the matter requiring consideration. If this were not the case, the position initially put in oral evidence by Mr Darroch (namely that if you can't see it, can't hear it and experience no other sensory indicator of its existence - other than, perhaps, a signpost or a collection of roadside letterboxes - it cannot be unacceptable) would have to have validity. 128If one does not accept (and I certainly do not accept) a broad "out of sight, out of mind" position with respect to the proposed development, there is no doubt, as a consequence of the density, clustered layout and extensive nature of the infrastructure and services required to be installed on the site, that the proposed development is fundamentally antithetical to the concept of maintaining rural character. 129That which is proposed for the site cannot be regarded, as to its density or layout, as being in any way comparable to the nearby Bywong subdivision. 130I accept Ms Makin's position that a modest dwelling carrying capacity could be accommodated on the site in a layout and in a fashion that could achieve maintenance of the rural character as required. However, this proposal does not and cannot achieve that. A simple visualisation of that which is shown after (14) being inserted into the green outlined area of the site shown after (96) (and compared to the internal faint yellow allotment boundaries of Bywong) brutally demonstrates the truth of the proposition in (129) immediately above. The pictures speak the thousands of words rendered unnecessary to describe, further, how totally inappropriate it is to suggest that the two are comparable. 131I acknowledge that the terms of cl 12(2) requires me, contrary to my earlier conclusion on general principles, to balance against this the positive benefits of the land degradation remediation proposals against this impact. If achieved, the land degradation and remediation will be a significant positive. 132However, despite its comparative invisibility, the nature of the proposed development, at the density and layout envisaged, is so fundamentally alien in its context, even assuming the highest possible value of the remediation works, that that value cannot outweigh the fundamental change in the character of this part of the area of Gunning that would be effected if the proposal were to be approved. This is not a question of consistency/inconsistency giving rise to questions of fine balance and the like, what is proposed is a form of settlement that is completely antithetical to any characterisation of being rural in its context. For that reason, alone, this proposed caravan park must be rejected.

Introduction 133There are several ecological issues requiring my consideration as a consequence of disagreements between Mr Fanning and Dr Mills. Those requiring consideration at this broad determination stage are:

• The first of these is the impact on the elements of the Box-Gum Woodland EEC, an endangered ecological community, representative elements of which are to be found in portion of the Crown Road reserve proposed to be used as the primary access for the site. The relevant portion where this vegetation is located is toward the Shingle Hill Way end of the Crown Road reserve. A related but somewhat subsidiary issues also arose with respect to the loss of other mature trees that were not part of the endangered ecological communities compositional species but were trees that provided or potentially provided habitat for arboreal mammals or for birds; and
• The second concerned threatened native grass species that were concentrated in the vicinity of the significant erosion features in the central and southern portions of the small valley between the pine windbreak and the eastern boundary of the site. The necessity for extensive remediation works to be undertaken in this valley to address the quite severe (the worst on the site, as I understood the evidence) erosion impacts meant that the necessary extensive earthworks would fundamentally compromise retention of this grassland. 134As with much of the remainder of the application, the position with respect to the ecological issues underwent considerable evolution during the course of the hearing. The final position I am required to assess was only arrived at following the provision of a set of multiple, new plans (dated 26 March 2014) dealing with revegetation, bushfire, erosion remediation and access road details. These plans resolved relevant matters of delineation of revegetation areas, conservation areas and dwelling site asset protection zones together with the asset protection zones required for the primary access road and the emergency access/egress road. 135A further joint expert report of Mr Fanning and Dr Mills was filed in court during the final hearings of the matter. It is, perhaps fortunately, unnecessary to canvass any significant detail of that which led up to the preparation of this joint report beyond the extent earlier set out in the background to the matters being considered. To understand the nature of the matters that remain requiring consideration, the simplest method of setting them out is to reproduce paragraphs 11 to 26 of this joint report. They are in the following terms: 11 The plans for the primary access road (SK150 to SK163) show the surveyed trees to be removed and those to be retained for two speed options (50 kph and 80 kph). Dr Mills calculates that for the 50 kph option, 78% of the surveyed trees will be removed, while for the 80 kph option, the figure is 83% (percentages based on figures on the plans and counting the green tree symbols on the survey plans). 12 Mr Fanning has provided a three page document titled 'Management Plans'. This is said to include a list of principles for a Vegetation Management Plan (for the Conservation Areas), and is divided into sections covering various parts of the property, including Conservation Areas North and South. 13 Mr Fanning has also provided two additional plans showing the proposed Conservation Areas and the associated APZs. Those plans show the boundaries of the Conservation Areas, relevant APZ distances/areas and stippled areas within the areas labelled as 'low density tree plantings'. 14 The erosion plans SK140 to SL142 show that 'regrading' and 'gully filling' is to be undertaken along the drainage lines through the Conservation Areas (both north and south). As noted by Dr Mills during the view and agreed to by Mr Fanning, these very areas support the most diverse native grassland on the property and yet this work, if undertaken as illustrated on the plans and shown in typical photographs in the accompanying report, is likely to destroy much of this native grassland. Dr Mills contends that as the plans stand, they are not sympathetic to the occurrence of this native grassland in these areas, which is an endangered ecological community. 15 In response, Mr Fanning notes that the areas to be affected are very small, and that any native grassland topsoils (with their seedbank) which must be removed will be salvaged for use in subsequent rehabilitation. In addition, the Management Plans document includes an approach of identifying good quality native grasslands along erosion rehabilitation areas, and protection them from earthworks wherever possible. Again, the long-term management of the Conservation Areas provides a satisfactory offset. 16 Dr Mills remains concerned about the loss of almost all of the forest/woodland within the Crown road reserve to construct the primary access road. Whether the 50 or 80 kph roads are constructed, the percentage loss of trees and other vegetation will be very high. He returns to his comment in the previous joint statement where he questions why this access road cannot be located through the property to the east through which the emergency access road is located. The road distance would be the same or slightly shorter and the vegetation cleared is mostly not mature woodland but regrowth and treeless land. 17 In response, Mr Fanning states that the two Conservation Areas on the subject land are to be dedicated primarily to offset the loss of woodland from the access road (as stated in previous Reports and Section 5A Assessments of Significance by SLR Ecology). 18 The previous flora and fauna reports deal with the original application and some amendments up to the Court hearing in February. There is no assessment of the above issues emanating from the amended development application now before the Court. 19 In response, Mr Fanning contends that the previous considerations of impacts by SLR Ecology have addressed all of the relevant issues. 20 There is a discrepancy between plan SK127 and the plan recently sent to Dr Mills by Mr Fanning. The APZ does not cover the same area between building sites 38 to 44 and the Conservation Area has a slightly different boundary in the far south. 21 Mr Fanning states that this matter is being addressed by the SLR GIS team. To ensure consistency, the Martens plans are to be adopted (noting that the discrepancies are small). 22 Dr Mills questioned how the areas outside those designated as 'low density tree planting' and within the Conservation Areas shown on the two plans provided by Mr Fanning are proposed to be treated. 23 As agreed with Dr Mills, the remainder of the Conservation Area South is to be maintained and/or rehabilitated as native grasslands. Indeed, Dr Mills requested that tree plantings be low throughout the Conservation Area South - specifically to protect the native grasslands. 24 The set of principles provided by Mr Fanning is, in the view of Dr Mills, satisfactory as far as it goes. However, this is more like a checklist than a good basis upon which to build a VMP and for others to be comfortable about the proposed outcomes and their success. Many questions remain unanswered. The agreement in the notes of our meeting dated 13 February 2014 states at Paragraph 7 that the Erosion Rehabilitation Plan should first map good native grassland before designing the erosion control works. This has not happened, and in fact the Plan ignores the occurrence of native grassland. Mr Fanning's checklist does state initial vegetation mapping is to be done but this should be carried out up front so one can be confident that the issue is being addressed when the erosion works are being carried out. 25 Dr Mills believes that not enough thought has been given to formulating the management of the Conservation Areas. An important question remaining is who is going to ensure that the conservation work is undertaken properly and in a timely manner. How are the Conservation Areas to be managed into the future? What is the timetable for completion of the various tasks? What is the cost? The rehabilitation of native vegetation to the Conservation Areas is a very large project and what guarantee is there that over the five plus years it will take to achieve even the basic requirements these works are successfully completed. The way that the proposals are to be achieved is just as an important consideration as the content of the management plan. 26 It is the opinion of Mr Fanning that these matters can be addressed to the satisfaction of Council prior to the release of any Construction Certificate for any works on the land.

The access road 136As I have earlier discussed, the 80 km/h rated access to the site is proposed to be constructed along an existing Crown road reserve for a distance of some 500 m until that road reserve meets the northern boundary of the site. 137The present dirt track that is located within this portion of the Crown road reserve is of sufficient functionality to permit access to the site for purposes of necessary agricultural land management. Indeed, it seemed to me from the site inspection, that this track would provide all weather two-wheel drive access to the site for any purposes for which this might be required (although the site, itself, is part of a larger land holding and alternative access for agricultural land management purposes is also available - at least along the tracks that form part of the proposed emergency egress route). 138As a consequence, although it might be said (based, by analogy, on BGP Properties) that the Crown road reserve should be used to provide access to those landholdings potentially serviced by it in their agricultural setting, it seems to me that the present access provided by the track satisfies the criterion of access to the agricultural lands beyond it that this sufficiently satisfies any reasonable presumption of use so it that could not be said that, at present, there was any sterilisation of this access corridor. 139It is in this context that I turn to consider the impact on the vegetation in this corridor, particularly the elements of Box-Gum Woodland EEC, as earlier noted, one of the endangered ecological communities located on the site. 140As noted in paragraph 11 of the extract from the second joint ecological report, Dr Mills has calculated that 83% of the survey plan noted trees along the line of the primary access road would need to be removed. The vast majority of these trees (if not all of them, I have not undertaken my own independent count) are within this Crown road reserve. Many of these trees are, from observations during the course of the site inspection as well as from the written evidence, a mature specimens and a significant number of them (this being an agreed position but without precise counting on this point) are elements of the Box-Gum Woodland EEC. 141Dr Mills commented in the first joint ecological statement that he questioned why the access road could not be located across the other elements of landholding within the common ownership encompassing the site as is the position with the emergency access/egress road. In paragraph 16 of the extract of the second joint ecological statement reproduced above, he repeats this concern. 142The position adopted by Mr Fanning is as noted in paragraph 17 of the extract. In the Additional Ecology Survey Report prepared by Mr Fanning and dated February 2014 (forming part of Exhibit D), he dealt with the impact on this endangered ecological community in part 4 and in appendix D to that document. In summary, Mr Fanning's conclusion was that any removal of the endangered ecological community for the purposes of the access road to the proposed development would be of minimal extent and of no significance in any relevant statutory context. 143I accept, as I also understood was accepted by Dr Mills, that there is a significant local occurrence of the endangered ecological community on land around the site. However, in the context of this application, the question, in my assessment, is not merely whether the proposed removal of the elements of the endangered ecological community are of minor impact on the local occurrence of the community but whether that impact, given the status of the community, is also an unavoidable impact if the overall concept of the proposal were to be approved. 144It is also Mr Fanning's position that the proposed conservation areas are intended to be compensatory, in the longer term, for this loss of the Box-Gum Woodland and the non-Box-Gum Woodland mature trees in the Crown road reserve and the further element of the primary access road - particularly in the proposed revegetation areas along the northern boundary of the site. 145Dr Mills expressed concerns (reflected in paragraph 25 of the extracted elements of the second joint expert report above) about the utility of or the certainty attaching to the value of these conservation areas. Those future questions do not require to be addressed in this decision but form part of the matters discussed concerning deferred matters. In this regard, I reject, for the reasons later discussed generally on these matters as a totality, Mr Fanning's view that these matters are matters capable of being left to the council rather than requiring resolution prior to the granting of any development consent. 146The matters that are raised by Dr Mills, on the state of the documentation presently provided in support of the application, remain inadequately addressed. Whilst this deficiency might be able to be cured if there were to be a development consent and the deferred elements were addressed and resolved, the failure to consider the possibility of an alternative location for the access road is a matter that weighs against the application in its present state. 147The extent of the removal of vegetation along the Crown road reserve proposed as the primary access to the site (particularly the removal of elements of the Box-Gum Woodland EEC) is undesirable. This concern is not, in itself, sufficient to warrant refusal of the application but does contribute to my satisfaction that refusal, on the primary planning ground earlier discussed, is the appropriate outcome of the proceedings. 148There may, possibly, be alternative primary access routes available across the land to the east that is in common ownership with the site. However, I have no information, whatsoever, (apart from the identification of the secondary emergency access/egress route) that would permit contemplation, on an amber light basis, of an alternative primary access were the broader planning aspects of the scheme to have been acceptable (which they are not for reasons detailed earlier).

The native grasslands 149With respect to the issue of the grasslands, Mr Fanning proposed that sufficient of the seed bank could be protected by soil and seed removal, as I understood his position, to ensure that, as part of the remediation process, there was a sufficiently high probability that these grasslands could be re-established as part of the outcome of the remediation process. Dr Mills, on the other hand, did not concur in this optimistic outcome. 150Whilst I accept that there is a necessary element of uncertainty attendant upon the adoption of the process proposed by Mr Fanning, I am not so sceptical of the potential outcome of such a process (provided there were detailed, mandated protocols for it to be undertaken and that it was supervised by an appropriately qualified expert) that I should reject this aspect of Mr Fanning's land management proposals as unfeasible or unacceptable. 151However, it is reasonable to say that, for this acceptance to crystallise the removal of these grassland impacts as an impediment to a development consent would require stringent and detailed provisions being provided in a plan (whether described as a conservation management plan, a vegetation management plan or some other nomenclature is an irrelevance). Such a management regime would be of sufficient importance to resolution of this issue that that management regime would also fall within the range of matters requiring to be incorporated in the conditions of development consent rather than being left to the subsequent satisfaction of the Council or incorporated in aspects of the construction certificate phase for the project.

Privacy and the neighbours' dam 152I noted, earlier, that, during the course of the site inspection, we had stopped in the vicinity of the proposed location of dwelling sites 5 and 6 (in Stage 2) in order to inspect, over the fence, a large dam the neighbouring property to the north. During the course of the objectors' on-site evidence, an owner of this property had explained that her family used this dam for picnicking and recreation purposes and that they considered that their privacy would be unacceptably impacted by the proposed development. 153The dam is roughly circular and some 30 m or so across in a north to south axis. The closest edge of the dam to the boundary fence of the site is at least 150 m. There is only an open grassy field on the neighbours' property in this space. 154There is proposed to be a gap between the northern boundaries of proposed dwelling sites 5 and 6 and the boundary of the site. This gap includes the road proposed to serve the sites in Stage 2. There is also an unmade Crown road between the site and this property. 155The topography in this area has a slight slope from the spur to the south of the dwelling sites so that there would be a very slight fall across these sites toward their northern boundaries and road frontages. These sites are oriented slightly away from the dam. Each of these proposed dwelling sites is an 8000 sq m one. Although of not perfectly rectangular shape, each has dimensions of approximately 100 m on each side boundary and 80 m across the front and rear boundaries. Within such a dwelling site, it is reasonable to expect that would be a significant setback of any dwelling from the road frontage boundary. 156Thus the cumulative separation of these dwelling sites' frontages from the dam will be about 200 m. 157I accept that it is, perhaps, reasonable to expect, in rural circumstances, greater separations for privacy purposes than would be expected in a conventional urban setting. Given the 200 m or so separation to the closest point of the dam and the fact that the proposed dwellings on each of these locations are to be single level ones if the proposal were to proceed, I do not consider that the complained of potential privacy impact could possibly contribute to refusal of the proposal. 158To the extent that any intervention to guard against overlooking of recreational activities on the adjoining property could conceivably be appropriate, this could be addressed by an agreed condition of consent requiring screening planting within the site along the boundary beyond the proposed road. However, whilst such planting might be desirable for good neighbour relations, there would be no proper planning basis for me to mandate such planting if the development were to proceed.

An "amber light" approach? 159I asked the advocates to address me on how I should approach the question of whether or not some form of development of the nature proposed might be considered for approval if I were to conclude that the broad concept was appropriate but that individual elements of it were not capable of approval. 160In this context, I have considered whether or not some development of the type proposed of a lesser intensity was capable of approval without the surgery required being so extensive as to constitute constructive refusal. 161I am satisfied that the major identified unacceptable impact renders it impossible to conclude that, on an amber light basis, some lesser development capable of ready identification warrants approval.

Deferred matters that would require resolution 162I have, earlier, set out my view that a property plan of management would be required to be incorporated in any development consent was one to have been appropriate. There would have been no prejudice to the applicant in such a requirement given that there would have been the necessity, as earlier discussed, for a significant period of time to be allowed for the internal Crown Road Reserve issues to be resolved. 163Against the position that I might be wrong in my overall conclusion that the development is unacceptable for the reasons earlier set out to support that proposition, I do consider it appropriate also to set out, briefly, some other issues that would need to be considered in finalising Conditions of Consent (should that circumstance arise). 164I have taken this step because the proceedings, to date, have dealt with the broad matters of principle necessarily encompassed in determining whether or not the scheme, as a general proposition, warrants approval. Because this issue was vigorously contested and took a somewhat protracted period of hearings as a consequence of the necessity for the applicant to continue amending the proposal as deficiencies in design or inadequacies in information emerged, the question of Conditions of Consent and any contest with respect to the conditions proposed by the Council were deferred. Undertaking that process would have required the application of time and money by each of the parties when that process could been (and, in fact, has been) rendered irrelevant by my determination that the overall proposal was unacceptable. 165However, there remained, arising out of the broad proposal several quite fundamental matters that would have needed to be addressed prior to the finalisation of any development consent (were one to have been contemplated). 166In writing that, I am not to be taken as foreshadowing matters that fall within the usual ebb and flow of such consideration or of matters that could have been deferred to a later time when the Council might have been satisfied by the subsequent detail furnished. Similarly, other matters such as the detail for the proposed construction of the access road, although of importance to the Council and any residents of the proposed development, would have been appropriate to be finalised in a process not requiring my participation. 167However, in addition to the property management plan earlier discussed that would relate to what might be described as the long-term broad aspects of sustainability of the proposal, there are other elements of the proposed development that would, in my opinion, require to be dealt with in the Conditions of Consent as being fundamental to the long-term human and environmental sustainability of the proposal. 168The first two arise out of the inter-dependent and communally managed proposals for effluent disposal and supplementary water supply. Whilst these would form critical elements of a community management plan to enable the residents of the proposed caravan park to manage their internal affairs (or to have been managed by the owner of the site, it being immaterial for the purposes of this discussion how such management is to be effected), they are matters about which I consider I would have needed to have been satisfied before I could have contemplated giving an approval. 169With respect to effluent disposal, the proposal that each cluster of dwellings be served by a linked effluent disposal system (so that, by the conclusion of the proposed seventh stage, there would be seven separate effluent disposal systems located on the site) gives rise to concerns about not merely the entry into maintenance contracts for these systems (if that were to be the envisaged process rather than an on-site effluent maintenance employee as was discussed as a possibility during some of the evidence) but also how responses to any unexpected problem might be triggered and what would be the responsibility for the costs for them. I do not wish, in this commentary, to be taken to be proposing any particular approach to these matters, merely to identifying that a long-term structure, including demonstrating the financial security of such arrangements, would have been necessary given the degradation and fragility of the site with the intensity of occupation proposed for it. 170A similar position applies to ensuring proper supply of water to and management of the reticulated top-up water supply system. Certainty of its satisfactory operation (on a long term basis - including financial certainty) would be an essential element of any approval. 171I have earlier discussed my acceptance of the concerns expressed by Dr Mills about the adequacy of information about the management and funding of the implementation for the revegetation elements proposed to be incorporated in the conservation areas on the site, particularly the conservation area along the northern boundary proposed to compensate for the loss of elements of the Box-Gum Woodland endangered ecological community. 172A further matter, central to the functional implementation of the proposal in the fashion envisaged in the application, is the availability of the community bus to service transportation needs of the residents proposed for the caravan park. Financing of the acquisition of an appropriate vehicle and meeting its ongoing costs for maintenance and operation is also a matter that would need to be addressed if there were to be a development consent for a caravan park of the general dimensions proposed for the site. 173I have also earlier identified that the incorporation of an appropriate operational regime under appropriately qualified expert supervision when implemented would be required, as an element of the conditions of consent, for the protection of the relevant native grassland species. This topic also falls within this suite of deferred matters should I be incorrect in my broad conclusion about the unacceptability of the proposal. 174All of the issues deferred for consideration only need be addressed if the primary acceptability issues were determined in favour of the applicant initially (or on remitter if there were to be a successful appeal). In combination, they would have given rise to the need for complex and comprehensive management regimes. 175Although I am not to be taken as expressing any tentative (let alone final) conclusion on this, it might also have been necessary to consider whether or not some form of trust fund, with some initial capital contribution of sufficient size to ensure long-term viability, might have needed to be established for these purposes. If I proved to be wrong in my reasons for refusal and the matter is remitted to me for determination, this is a significant aspect that will remain to be considered. 176In conclusion on these deferred matters, I should observe that, in setting them out so that the development proponent would be aware of what matters required further consideration if it were held that I was incorrect in my broad conclusion, it is not to be taken that I am postulating that all of those matters are capable of satisfactory resolution in a fashion that would result in the upholding of the appeal on remitter and the granting of a development consent. Equally, nothing should be taken as me expressing (or, indeed, hinting at) any proposition that all or any of the matters dealt with in this section of my reasons are incapable of being satisfied and thus would constitute an impediment to the granting of consent subject to conditions.

Conclusion 177Although there is no requirement in the relevant provisions of the 1997 LEP that the proposed development be consistent with the matters required to be taken into account generally as a consequence of cl 9 or, specifically for the rural zone, as a consequence of cl 12, for the reasons I have earlier set out, the proposal is so alien in its context as to be unacceptable. 178In this regard, although there are matters arising from the ecological evidence that are unsatisfactory, those aspects do not warrant refusal in their own right but do contribute to my sense of satisfaction that, on an overall basis, the proposal should be refused. 179I have also considered whether the proposal might be rendered acceptable by either the deletion of one or more stages (for example the deletion of Stage 7 might conceivable provide greater opportunity for the re-establishment of native grassland areas) or by the deletion of some dwellings within a variety of stages to provide greater separation of the built form in the landscape or by lessening its visibility, more generally, in the landscape. However, I am satisfied that to attempt to do that would merely be tinkering and that there is nothing, within the scope of the present application (in its finally amended form) that could be reasonably imposed to render the application acceptable. 180In the context of this conclusion, I should observe that I am satisfied that the rehabilitation proposals advanced to address the extensive issues of land degradation arising from past agricultural practices (although embodying highly desirable outcomes) do not have sufficient weight in favour of the application to outweigh the fundamental incompatibility of the proposal with the first of the objectives of the rural zone for the reasons earlier discussed. 181The proposal must, therefore, be rejected.

Orders 182The orders of the court, therefore, are: (1)The appeal is dismissed; (2)Development Application 5.2012.34.1 for the establishment of a caravan park at 661 Shingle Hill Way, Gundaroo is determined by the refusal of development consent; and (3)The exhibits, other than Exhibit 1, are returned. Tim Moore Senior Commissioner 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: 30 June 2014