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[2025] NSWLEC 1858
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-09
Dixon SC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation:
Hearing dates: 08-11 July 2025
Date of orders: 09 December 2025
Decision date: 09 December 2025
Jurisdiction: Class 1
Before: Dixon SC
Decision: The Court orders:
(1) The development application is refused, and the appeal is dismissed (2024/351404).
(2) The development control order appeal is dismissed (2024/139187).
(3) The building information certificate is refused (2024/326049).
Catchwords: DEVELOPMENT APPEAL – future use of existing sheds for the animal boarding and training establishment for rehabilitating and training racehorses – animal shelters and farm building associated with the extensive agriculture of cattle grazing – driveway – screening to driveway and stables – rehabilitate an area of wetland filter, visual impact, weight to be given to Council policy
DEVELOPMENT CONTROL APPEAL – appeal against order for demolition of unauthorised development
BUILDING INFORMATION APPEAL – application for a direction to the Council to issue a building information certificate in relation to the existing unauthorised development
Legislation Cited: Environmental Planning and Assessment 1979 (NSW), Sch 5, Pt 1, ss 4.15, 8.7, 8.18, 8.25
Environmental Planning and Assessment Regulations 2001
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pt 2, Div 1, Subdiv 16
State Environmental Planning Policy (Resilience and Hazards) 2021
Tweed Local Environmental Plan 2000
Tweed Local Environmental Plan 2014, cl 2.3
Cases Cited: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Ross v Lane (2022) 255 LGERA 136; [2022] NSWCA 235
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Texts Cited: Macquarie Dictionary, 9th ed (2023)
Tweed Development Control Plan 2008
Category: Principal judgment
Parties: Whitton Family Investments Pty Ltd (Applicant)
Tweed Shire Council (Respondent)
Representation: Counsel:
M Harker (Applicant)
T Howard SC (Respondent)
Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds Lawyers (Respondent)
File Number(s): 2024/351404
2024/139187
2024/326049
Publication restriction: Nil
This judgment concerns development that has been carried out and development that is proposed to be carried out in respect of a cattle and horse farm owned and operated by the Whitton family (applicant) at Lot 13 DP755740, Dulguigan Road, North Tumbulgum (the site).
The site is located adjacent to a bank of the Tweed River; is primarily within the RU2 Rural Landscape Zone; and partly within the RU1 Primary Production and “Deferred Matter” zones under the Tweed Local Environmental Plan 2014 (TLEP 2014). A small sliver of land at the northern end of the site falls within the 7(d) Environmental Protection Zone under the Tweed Local Environmental Plan 2000 (TLEP 2000). The area is characterised by farm buildings and activities pertinent to agricultural activities.
The site is identified as being within the flood planning area and is flood affected (1% AEP) and is in the probable maximum flood area with areas of high and low flow. It is located within the Coastal Environment Area and Coastal Use Area under State Environmental Planning Policy (Resilience and Hazards) 2021. A small area of the site is identified as Regionally Significant Farmland as per the Farmland Project containing Class 2 and 5 Acid Sulphate Soils. It is also bushfire prone.
At the time of the Court’s inspection, the site contained the following structures:
Structure A is a large, stable shed (on the hill on the northern boundary of the site) with stalls and training facilities which are surrounded by a hard stand area with retaining walls and four water tanks.
This building is the largest and most prominent farm building on the property; approximately 72m long and about 24m wide. It has a floor area of some 1728m2 and a height of 8.6m. The building is enclosed on two side sides, partially enclosed on another, but fully open on its southern elevation facing the road.
Along the western boundary of the site is an internal concrete driveway (some 380m in length) that provides access to Structure A from the roadway.
At the Dulguigan Road frontage, there is an existing entry with masonry fencing and a gate structure; it is proposed to relocate this entry structure to within the property. The applicant’s amended development application, approved by the Court on 21 May 2025, moves these works within the property boundaries. The amended plans also provide additional details of levels, retained vegetation and proposed upgrades for the internal driveway to comply with bushfire requirements and to allow heavy, rigid vehicles access and egress at the base of the hill.
There are two other animal shelters (Structures B and C) located on flatter land at the base of the hill – on either side of the internal driveway – near the Dulguigan Road frontage. It is to be noted that Structure C is proposed to be moved slightly forward.
The plan and aerial photograph below show these structures as presently located on the site.
The existing Structures A, B and C were erected without development consent. The Council has issued to the applicant a Development Control Order (BLD 23/0116), under Sch 5, Part 1 of the Environmental Planning and Assessment Act (1979) (NSW) (EPA Act) requiring the demolition and removal of the buildings and the restoration of the premises to the condition in which they were before the unlawful building or other works occurred (DCO).
To regularise the existing unauthorised works and their future use (with further works) the applicant lodged the following appeals:
P****roceeding no 2024/139187 is an appeal against the DCO – wherein the applicant has asked the Court to revoke or modify the order, under s 8.18 of the EPA Act, to enable the retention of Structures A, B and C.
P****roceeding no 2024/326049 is an appeal pursuant to s 8.25(1) of the EPA Act wherein the applicant seeks a direction that the Council issue a building information certificate to its application no BC24/0071 (BIC) for the erected Structures A, B and C and the water tanks. The Council has refused that application.
P****roceeding no 2024/351404 is an appeal pursuant to s 8.7 of the EPA Act against the Council’s refusal of DA 24/0360 for the future use of the site and the Structures A, B and C for the purpose of an “animal boarding and training establishment” as defined in the Tweed LEP 2014 (Ex 4). Further, the applicant proposes that Structure C be relocated slightly north east of its present position to facilitate provision of a wetland filter area. The proposed use is more specifically explained in the Amended POM dated 9 July 2025 (Ex E). The applicant also seeks development approval to complete the fit out of Structure A and to extend the hardstand area.
While the outcome of the three proceedings is dependent on the outcome of the DA appeal, the parties have identified that a refusal of the DA does not automatically lead to the dismissal of the DCO or BIC appeals. It is accepted that the Court has the discretion to allow the unlawfully erected buildings and works to remain and uphold the DCO appeal. Albeit the Council argues, in the event of an approval of the DA, that the discretionary considerations weigh in favour of the dismissal of the DCO appeal.
It is further submitted, if the Court were to uphold the DA appeal, that the proposed remedial engineering (and stormwater) works should be carried out on the driveway and the required landscaping conditioned to ameliorate the visual impact of Structure A and the driveway. In that circumstance the Council invites me to dismiss the BIC appeal and allow the remedial engineering and landscaping works to be carried out, and that the applicant be required to lodge a new BIC to reflect the remedial engineering and ameliorative landscaping works. Alternatively, the Court could dispose of the BIC appeal by upholding the appeal and directing the issue of the BIC on terms that included remedial engineering and landscaping works before the issue of a BIC. However, if the Court determined to refuse the DA, then the Council submits that it would logically follow that the Court would dismiss the BIC appeal.
Considering the above, the parties agreed, that it was logical to direct their final submissions to the resolution of the DA Appeal before anything else.
The DA, as amended, seeks consent to:
use the farm (including an existing stables structure) as an animal boarding and training establishment for the purposes of rehabilitating and training racehorses;
use the animal shelters for that use and as a farm building associated with the extensive agricultural use associated with cattle grazing;
complete works to the entrance driveway and existing stables;
carry out extensive plantings to provide screening to the driveway and stables;
rehabilitate an area of wetland filter; and
move an animal shelter (Structure C).
I accept that the Council’s contentions (Ex 1) regarding impacts of the proposed use on waterways, bushfire and arboriculture are the subject of agreements between the experts and appropriate conditions can be imposed to resolve those contentions.
I also accept that there is no jurisdictional impediment to the grant of development consent for the use and proposed completion of the works.
The evidence is that the existing unlawful works have been carried out on land falling within the RU2 Rural Landscape zone under the TLEP 2014. Furthermore, that Structure A can be characterised as development for the purposes of an “animal loading or training establishment” or “intensive livestock agriculture” as defined in the TLEP 2014. In either case, the proposed use is nominate development, permitted with consent in the RU2 Rural Landscape Zone: cl 2.3.
I also accept that the fact of the buildings and associated works having been undertaken unlawfully is irrelevant to my assessment of the present DA. So too is the applicant’s involvement with that unlawful development: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (Jonah), per Preston CJ at [19]-[21]:
19 The issue of the relevance of past unlawful use to determining whether a consent should be granted or modified has been considered by courts in the past. The courts have consistently held that past unlawful use is not a relevant factor.
20 In Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; 49 LGERA 17 at 323-324; at 19-20, King CJ with whom Mohr J agreed, sitting as a Full Court of the South Australian Supreme Court, stated:
“In my opinion, moreover, the past unlawful use is not a relevant factor in determining whether consent should be granted. That decision should be made upon the planning considerations envisaged by the Act and Regulations irrespective of the past or continuing conduct of the applicant. I do not think there is any warrant in the Act or Regulations for refusing or deferring an application or appeal by reason of the unlawful conduct of the applicant.
The learned judge in the Land and Valuation Court was rightly concerned with the activities of a person ‘who, cynically and fraudulently, changes the use of his or her land, and who hopes, by doing so, to present planning authorities with a fait accompli, and thus to extract a planning consent to the changed use’. His Honour posed the question: ‘How should such a person fare when his or her application comes to be considered at the administrative and judicial level?’ The answer, it seems to me, is that the unlawful use should be ignored. It does not enter into the planning considerations upon which the planning decision must be made. The punishment of the unlawful conduct should be left to criminal proceedings. The supposed fait accompli should not be recognized as such. The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use.
Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularized leaving the past unlawful conduct to be punished by penal sanctions. Refusal to entertain an application while an unlawful use continues might result in a pointless impasse. A landowner who maintained, contrary to the planning authority's view, that his use of the land did not require consent, but who was willing to seek consent to avoid conflict, would be unable to obtain consent unless he first desisted from the disputed use, perhaps closed his business. If refusal to consider the application were confined to cases of cynical, fraudulent or manipulative conduct, the planning authority and the Planning Appeal Board would be required to inquire into and decide whether the conduct in a particular case answered that description. I do not think that a planning authority such as a Council or an administrative appeals tribunal such as the Board is equipped by its constitution or procedures to deal with allegations of improper motives. I think that the most expedient course, and that indicated by the Act and Regulations, is for the administrative authorities and the court to deal with the planning application on its planning merits, ignoring any arguments based directly or indirectly upon unlawful use and leaving the punishment of the unlawful conduct to penal proceedings.”
21 In Ireland v Cessnock City Council (1999) 103 LGERA 285 at 307 [87], Bignold J stated:
“87. The approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing planning appeals, building appeals, demolition order appeals and building certificate appeals. This is aptly reflected in the contemporaneous decision of Cripps J (as he then was) in Longa v Blacktown City Council (1985) 54 LGERA 422.”
In assessing the visual impact, the Council submits I must take into consideration the enumerated matters under s 4.15 of the EPA Act, including Council’s Scenic Landscape Protection Policy (the Policy).
The evidence is that the Policy was adopted by the Council on 6 June 2024 (Tab 33 Vol 2 Ex 2) after the applicant had carried out the unlawful development on the land (in about mid 2023). The circumstances of its adoption are set out in the Council’s Planning Committee report tabled at the Council meeting of 6 June 2024 (Tab 1 Ex C) (Planning Committee Report).
As the Policy remains current and was in force at the time of the applicant’s lodgement of the DA on 25 July 2024, the applicant accepts that it is a relevant consideration in my assessment of the merits under s 4.15 of the EPA Act, although the parties are at issue as to the weight to be given to the Policy in my evaluation of the DA.
The applicant accepts that the Policy is relevant as an aspect of the public interest under s 4.15 of the EPA Act. However, it submits that the requirement in s 4.15 to take it into consideration does not require the Court to apply the instrument as if it were a binding statute: Ross v Lane (2022) 255 LGERA 136; [2022] NSWCA 235 at [35], as it is not a tool to stop development (Ex C 7). Rather it is a Policy that “aims to assist development assessment and guide proponents of development on ways to mitigate and minimise the impacts of development or land use on the landscape” (Ex C 6).
The applicant underlines that the Policy expressly states that the measure of visibility is the number (or incidence) of viewsheds that any given location falls within (Ex 2 p 669).
To that end, the Policy maps land on a scale of most to least visible based on the number of viewsheds (Ex 2 p 704). More than 10 is referred to as highly visible (Ex 2 p 702).
The applicant submits on its evidence that the stables (Structure A) and driveway are only visible as part of five viewsheds (JER at [21]) as corrected by the transcript evidence of Mr Free and, relevantly, that all bar one are identified as “dynamic views” as they are only experienced whilst moving and thus experienced for a transient period. As such, the applicant invites me to accept the evidence of its planner Mr Beros, that Structure A and the driveway are not in a “highly visible” location.
The applicant further submits that the Policy calls for an analysis of consistency of the proposal with the applicable narrative directed to a landscape character unit. The character description states (in part):
This landscape unit is generally located on gently to moderately sloping land where the gradient of the land allowed practical vegetation clearing and farming practices above the floodplain,
Farmhouses, shed … and machinery are located within cleared landscape and screened by vegetation.
The latter description, according to the Applicant, is relevant character in this case and the siting of the stables (Structure A) is not inconsistent with that description. It argues that a fundamental part of the landscape character unit in the Policy is “activities” occurring above the flood plain. On Lot 13 the PMF level immediately adjacent to the hill on which the stables Structure A is located is 8-9 m – therefore consistent with the Policy as the works are above the floodplain (Ex A2 (A-02) Tab 1).
The applicant also argues that the development adopts mitigation measures envisaged by the Policy (Ex 2 p 685) for example use of colours that complement the surrounding landscape (such as the colour “Monument” which the council accepts); it incorporates buffer strips of vegetation in front of the stables and the driveway to screen; maintain views of grassy paddocks and the escarpment beyond; and offers established new native vegetation (ACWS at [31]).
Accepting that the Policy seeks to avoid the location of structures on a ridgeline the applicant takes issue with the Council’s evidence that Structure A is built on a ridgeline and is therefore “highly visible”.
In the absence of a definition of the term “ridgeline” in the Policy or the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) the applicant asks me to accept the natural meaning of the words in context as defined in the Macquarie Dictionary definition: “the line formed by the top of a mountain or mountain range” and underlines that it needs to be distinguished from a “spur” which juts out usually from a ridge.
With that definition in mind the applicant contends on its evidence that the ridgeline in this case is the area located in the vegetated scenic escarpment, up the hill, away from Structure A (ACWS at [36]). Therefore, Structure A is not located on a ridgeline and cannot be described as “highly visible” under the Policy. It is further submitted that this proposition is made good by the experience on the ground, and, after the site view, the Court should accept the evidence in the joint report that Structure A is not visible from the centre of Tumbulgum (VI Jer [20]), nor from the jetty or park opposite the local pub (VI JER [20]). At worst, it is only visible as glimpses through the existing vegetation from the very northern end of town on Riverside Drive and the reserve adjoining it. The applicant also argues that the balance of the viewing situations, are transient views along the Dulguigan Road or Tweed Valley Way and only for a short distance along the Tweed River.
Ultimately, the applicant submits that the Policy is no more than a guide, not a requirement. In that context the applicant submits that I should apply the six factor framework in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland) when considering the weight to be given to the Policy at [92]:
• the extent, if any, of research and public consultation undertaken when creating the policy;
• the time during which the policy has been in force and the extent of any review of its effectiveness;
• the extent to which the policy has been departed from in prior decisions;
• the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
The applicant submits, referring to the principles in Stockland, that the consultation process for the Policy was significantly lower than the number of persons in the community who have expressed support for the development. Furthermore, that the Policy is internally flawed because the first objective is at odds with the single mitigation measure requiring no development on ridgelines (CWS at [40-41]).
The applicant is also critical of the fact that the Policy was intended to be introduced along with a chapter in the DCP and that has not occurred (Ex C 7). Nor has there been the 12-month review of the Policy originally anticipated.
For those reasons, the applicant submits that the Policy “…should not be given determinative weight” in my evaluation under s 4.15 of the EPA Act (CWS at [44]).
The Council submitted that a reasonable application of the guiding principles in Stockland at [88]-[92] to the facts would justify in this case the Court giving considerable/significant weight to the Policy in its evaluation of the DA under s 4.15 of the EPA Act.
The Council emphasised that the Policy was created after Council carried out considerable and extensive research, and rigorous community consultation process as explained in the Planning Committee Report at pp 6 and 7; the Preamble to the Policy and the Section entitled “Policy Context”.
Described as embodying longstanding principles of planning law concerning visual impact, Council submitted that the Policy provided:
“…a lens by which one may readily identify the importance in the public interest of the application of those principes in the particular context of the preservation of the scenic landscape of the Tweed, which is World Heritage listed, and is attended by valuable qualities as described in the Policy’s preamble” (CWS at [7]).
The Council emphasised that there is no evidence that the Policy has not been consistently applied by the Council and therefore a departure by this Court – in the exercise of its broad discretion under s 4.15, may result in the Policy being given less weight in the future. An outcome, that the Council submitted had the potential to undermine the future preservation of the scenic landscape of the Tweed Shire that is sought to be preserved (CWS at [33]).
The Council identified that the Policy is compatible with the provisions and objectives of the TLEP 2014 and the Tweed Development Control Plan 2008 (DCP) and in seeking to avoid the siting of buildings or structures on highly visible sites such as ridges (Policy p 30, dot point 3 and Figures 7 and 9), the Policy is harmonious with the ‘carve out’ provisions of the Codes SEPP which remove from categories of exempt and complying development – farm buildings and other structures, any development sited on or near ridgelines on hills (Codes SEPP, Pt 2, Div 1, Subdiv 16).
The Policy is also said to be compatible with other policies adopted by the Council or any other relevant authority (CWS at [37]). Nor is there evidence of any significant flaws in the Policy when assessed against orthodox planning outcomes for this site or an area affected under the Policy. Instead, the Council submitted that the Policy accords with conventional and well recognised principles concerning visual impact for this locality and across the scenic landscape of the Tweed Shire (CWS at [37]).
For these reasons, the Council contended that the weight to be afforded to the Policy in the assessment of the DA should be considerable in the Courts’ assessment under s 4.15 of the EPA Act. Accepting that visual impact is a relevant head of consideration independent of any Policy.
The applicant submits that the stables and driveway are consistent with their rural context for reasons outlined by Mr Bertos in the joint report, namely:
The building typology (a shed and driveway) is consistent with the permissible uses in the zone;
Driveways which traverse sloping terrain in a meandering manner are commonplace and visible in the locality (the obvious example of which is what was observed on site as the road to nowhere on the adjoining property to the west – that being in the same visual catchment as is Structure A;
There are multiple other sites with considerable built form which are visible, such as the Husk Farm Distillery;
The height of the building is compliant (below the 10m height standard);
The site cover of the Stables is minimal; and
The grassed paddocks, hillside, and trees on the escarpment beyond will continue to be the major view.
The applicant submits, again on the evidence of Mr Betros that the views to the structure are limited and its presentation is not jarring – mindful that the Council approved a dwelling that is equally visible on the connecting hill (Ex D Tab 1). The only view is from the northern end of the reserve along Riverdale Drive in all other respects the evidence is that the views are non-existence or transient.
As such, the applicant argues that the visual impact must be far from adverse and acceptable. Moreover, it is submitted that the development is supported by the local community, and that it provides an economic use of the land that is otherwise flood affected and provides employment. It is permissible in the zone.
The applicant further submits that when the landscaping has reached maturity, the view impacts will be acceptable (VI Jer [86] and [76]). Moreover, it contends that the Council’s expert Ms Mackenzie confirmed this (subject to the accuracy of the photomontages being confirmed). The applicant asks me to reject Mr Swan’s evidence about the ineffective mitigation of the visual impact by the proposed landscaping and accept the evidence in Ex G, that the development will be barely visible from Riverside Drive reserve in 15-20 years.
The applicant relies upon an immediate benefit from the application of hydro mulch to the cut areas, so as to soften the appearance of the cut in the driveway.
Accepting that these mitigation measures will take time, the applicant submitted that it is unreasonable to insist on an immediate effective mitigation by landscaping particularly when the Policy envisages such mitigation.
Finally, the applicant submitted that the Court should accept the submissions and petitions from the neighbours and local community that overwhelmingly support the development as evidence of the public interest in my evaluation under s 4.15 of the EPA Act (Ex D).
The Council contends that both Structure A and the driveway have a “stark visual impact” that offends the Policy.
It invites me to accept Mr Swan’s evidence to the Court that Structure A is a dominating and intrusive presence in the scenic landscape in which it sits. A viewshed that is highly visible from numerous publicly accessible locations, including the following priority viewing situations (viewpoints) as set out in Table 2 of the Policy at pp 42-43) which the Court had the opportunity to appreciate during the site inspection:
From the Tweed River (Priority 2, Dynamic);
From the Faith Mussing Bandler Park on the foreshore across the river (Priority 2, Static);
From the bridge across the river on Terranora Road (Priority 2, Dynamic); and
From the Tweed Valley Way (Priority 1, Dynamic).
With respect to the driveway the Council submitted, again on the evidence of Mr Swan, that it presented as a “stark intrusion into the hillside” when viewed from the above locations.
The “combination of pavement and cut, the Council submitted presents “…somewhat in the nature of a scar on the landscape” (CWS at [40]).
Accepting that the Policy, in its prioritising of viewing situations and viewsheds is of general and wide application, the Council submitted that it is up to the Court to determine the degree of the visual impact of Structure A and the driveway, including when viewed from the Faith Mussing Bandler Park, and from the residences which adjoin the park and share that view, and from the Tweed River itself when viewed by any person in a boat using that water way (either boating down towards the coast from Rous River or other upstream areas of the River).
These are all viewpoints which, the Council submitted, the Court is able to appreciate having had the Court view at the commencement of the hearing.
The Council underlined the importance of the scenic management principles in the Policy (Section 9 pp 15 and 16), and the role they played in the visual impact assessment in the chart entitled “landscape character assessment and evaluation” within the Policy. It submits, should the Court find, as the Council contends on the evidence that it would, that the visual impact of the development is inconsistent with the scenic management principles of the Policy (section 9) then the only way forward is for the applicant to submit an acceptable proposal – which would be a redesign and re-evaluation of the current proposal. As it presently stands, it contends that the applicant has failed to address the development’s inconsistency with the relevant principles of the Policy.
In particular, the Council submits that Structure A and the driveway are inconsistent with the scenic management principles including Principle 1 (Item 3) and Principle 3 (Items 1, 4, 5 and 6) which provide as follows:
Principle 1: Protect views form public spaces
…
3. Avoid siting structures in the central line of sight to landscape features visible from the public viewing situations.
…
Principle 3: Protect landscape character, including distinctive caldera features and coastal formations
1. Ensure the design, siting and management of new development contributes to or blends with existing visual elements of the landscape and avoids disruption or dominating established elements of the landscape character.
…
4. Avoid development that penetrates the skyline or horizon. Where avoidance is not possible, implement measures to minimise the contrast and visibility of the penetrating structure.
5. Ensure architectural form, massing and articulation of buildings or structures complements or adds to the elements enhancing the scenic quality of the local area.
6. Avoid or minimise change to the existing topography or compensate for impacts through design that complements the form and scenic quality of the natural terrain.
The Court has a broad general discretion under s 4.15 of the EPA Act which includes the assessment of the visual impact of a development independent of any Policy. However, in circumstances where the Council has recently adopted a relevant Policy (which also addresses visual impact at the very least as part of the public interest) it must be considered under s 4.15.
The ultimate weight to be given to the Policy is dependent upon several factors including the guiding principles outlined by the Court in Stockland.
In this case, both parties have made submissions in respect to the application of those principles in the development of the Policy. The evidence brought forward by the Council demonstrates that the Policy, in force before the lodgement of this DA, has been created after rigorous community consultation and input, and while its effectiveness to date has not been reviewed, there is no evidence before me to suggest that the Council has resiled from applying the Policy and no decision by a Court departing from the Policy.
I accept that the Policy is compatible with the objectives and provisions of relevant Environment Planning Instruments, Development Control Plans and other Council policies – and it does not contain any identified flaws when assessed against conventional planning outcomes for the site.
As the Policy has been prepared in accord with the guiding principles in Stockland, I accept that it represents the community’s views and that those views are relevant as part of the public interest. I also accept that a deviation from the Policy would undermine the objectives of the Policy which includes the recognition of “the visual elements and qualities of the Tweed’s landscape character and scenic views that are valued and important to the community”.
The applicant sought to argue that the views of the submitters who support the development because of its usefulness in recent floods also deserve consideration. However, I do not accept that submission.
As the Council correctly emphasised, the applicant is not entitled to any advantage or for that matter to suffer any disadvantage from having unlawfully carried out the development as it should have no bearing on my assessment this DA (Jonah at [19]-[35]).
With the above principles in Jonah in mind, it follows that the applicant cannot assert that the grant of consent would be in the public interest because Structure A, in the period in which it was unlawfully directed, has been used by persons in the locality to store vehicles and goods in times of flood (Ex D p13 at [53]). To do so is, as the Council submits, to seek to derive impermissible advantage from carrying out the unlawful development. Therefore, I can give no weight to the letters and petitions in support of the development tendered in support of that submission but I have had regard to the other submissions that did not rely upon the use of the sheds in flood.
The evidence is that the site is mapped as being within the Council’s Scenic Landscape Protection Policy and has been assessed to fail 16 viewsheds, being six Priority 1 and ten Priority 2 viewsheds – indicating high visibility in the surrounding landscape.
At the Court view, I was taken to key vantage points including the Tweed Valley Way, Tumbulgum Village and the Tweed River in order to observe the visual impact of the Structure A and the driveway in the landscape. I had opportunity to appreciate the visual impact of Structure A and the driveway from key vantage points in particular the Riverdale Road reserve. At that vantage point, I observed the whole driveway length, as an S bend climbing up the hill toward the large and dominant shed (Structure A) atop the hill. While I accept that there was some criticism of the accuracy of the photomontages relied upon in this case the representations below give some idea of the imposing nature of the shed (Structure A) and driveway today and their presentation in 15 -20 years when the landscaping has matured, if in fact it grows as depicted.
That said, Mr Swan’s evidence accords with my observations. As reported, he believes that both Structure A and the driveway will be “…highly visible in the short term when viewed from across the river” (T170:20-30); it is development which he described as “in your face”. He also estimates that the development will be highly visible for a significant number of years, before any amelioration of that impact by landscaping. Mr Swan evidence is “…that it’s only over time – when you get to that 15 -20 years that [you] get to a point where you start to lose what it actually looks like. It is unnatural in the landscape” (T170:20-30). Even assuming the proposed landscaping will grow as anticipated (Ex G), leaving aside reservations expressed in respect to the performance of hydro mulching as ground cover on the embankment (T172:20-50), a 15-10-year lead time for landscaping to suitably ameliorate the “stark” visual impact of these structures is in my assessment unacceptable. The provision of landscaping is not a suitable basis to approve the ongoing use of an otherwise unacceptably sited large shed and driveway as an animal boarding and training facility (Ex 8 at [86]).
The Structure A and the driveway are, as the Council assert, development which is inconsistent with the scenic management principes of the Policy specifically Principle 1 (Item 3) and Principle 3 (Items 1, 4, 5 and 6) and that finding lends weight in my overall assessment under s 4.15 of the EPA Act to determine a refusal of the DA on the ground of visual impact which is relevant under s 4.15(1)(b), (c) and the public interest.
Whilst the safety of the driveway is a matter which can be addressed by way of conditions, there remains some uncertainty about the additional visual impact by reason of the fresh cut and widening of the pavement. We do not know exactly what that will ultimately look like. The driveway currently presents as an S bend on the most prominent part of the site and based on the evidence I am not satisfied that the proposed landscaping will sufficiently mitigate that adverse impact.
The 400m distance across the river does not, as Mr Betros would have it, remove the significance of the adverse visual impact of the dominant shed on the hill and the driveway. They are, as Mr Swan elaborated, “dominating and intrusive in the landscape”. As such, the DA is not in the public interest generally and as most recently expressed in the Council’s Policy. In this case, s 4.15 of the EPA Act invites an assessment of the suitability of the development for the site. This includes an assessment of the development’s visual impact. In most cases, unlike this case I need to speculate about matters of visual impact based on the evidence. In this case I can have regard to the built structures when assessing the future visual impact of the DA and the proposed use and works. After such assessment I do not accept that the proposed use and works in the DA are acceptable in their present form or as proposed in this application. These highly visible uncharacteristic structures cannot be justified on the evidence after assessment under s4.15 of the EPA Act.
For those reasons development consent is refused.
For the reasons stated, the DA is refused consent and the appeal is dismissed.
That said, I appreciate that the Council will accept the movement of the existing Shed C outside the 20m ecological water buffer as shown on Plan S02 at Tab 1 of Ex A2D. However, I am not prepared to grant a partial consent to the Shed C on the evidence as it presently stands, without further interrogation of appropriate conditions of consent and works to the adjoining ecological area.
The applicant of course has an opportunity to make a further DA to the Council that addresses the recommended engineering detail, stormwater works, landscaping and all relevant controls which can then be assessed having regard to relevant matters under s4.15 including the Policy.
The Court orders:
The development application is refused, and the appeal is dismissed (2024/351404).
The development control order appeal is dismissed (2024/139187).
The building information certificate is refused (2024/326049).
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Whitton Family Investments Pty Ltd
Tweed Shire Council [2025] NSWLEC 1858
(2006) 144 LGERA 408
(2022) 255 LGERA 136
(2004) 136 LGERA 254
(1982) 29 SASR 321
(1999) 103 LGERA 285
(1985) 54 LGERA 422