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.