Connect Global Limited v Port Stephens Council

[2024] NSWLEC 1637

Land and Environment Court

New South Wales

Medium Neutral Citation:

Connect Global Limited v Port Stephens Council [2024] NSWLEC 1637

Hearing dates:

11-12 April, 26 April, 1 July 2024, final submissions 23 July 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

In respect of Proceedings 2023/125407:

(1)   The appeal is upheld.

(2)   Development Application No DA 16-2022-839-1 for a transitional group home at Fisherman’s Village Swan Bay is determined by the grant of consent, for a period of two years, and otherwise subject to the conditions at Annexure A.

In respect of Proceedings 2022/259609:

(1)   Hearing adjourned, pending the issue of an Occupation Certificate pertaining to DA 16-2022-839-1.

(2)   Listed for Online Court 12 noon 19 December 2024, with parties to advise on status of pre-requisites for Occupation Certificate relating to DA 16-2022-839-1, and provide requests for further orders as relevant.

(3)   Liberty to restore in the usual manner.

Catchwords:

APPEAL – development application – transitional group home – drug and alcohol rehabilitation facility – relationship to existing approved tourist accommodation – social impact concerns – conflicting land use concerns – zone objective consistency – lay objections – trial period

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.18

Rural Fires Act 1997

Port Stephens Local Environmental Plan 2013, cll 5.21, 7.6, 7.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.8

State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 5, s 62

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.8, 2.10, 2.11, 2.12, 4.6

Cases Cited:

R v Ismail; R v Bakri (No 1) [2021] NSWDC 796

R v Esho [2023] NSWDC 195

R v Stewart [2023] NSWDC 469

The Benevolent Society v Waverley Council [2010] NSWLEC 1082

Category:

Principal judgment

Parties:

Connect Global Limited (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
M Hall SC (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/125407
2022/259609

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This judgment relates to two appeals, heard together by me in proceedings under the Land and Environment Court’s Class 1 jurisdiction, each concerns a site known as Fisherman’s Village, located at Old Punt Road towards the southern extremity of Moffats Road, Swan Bay.

2. Most of the content of this judgment focuses on the appeal by Connect Global Limited (CGL), under s 8.7 of the Environmental Planning and Assessment Act, 1979 (EPA Act), against the refusal by Port Stephens Council (Council) of a development application (DA), which Council assigned reference number DA 16-2022-839-1, and the Court references as matter 2023/125407. This DA seeks consent for the use of certain existing land and buildings within Fisherman’s Village as a transitional group home, in the form of a drug and alcohol rehabilitation facility for men.

3. The other appeal under evaluation in this judgment is that relating to a development control order (DCO) issued by Council upon CGL. It seems not to be in doubt that there was a drug and alcohol rehabilitation facility operating at the premises at the time of the hearing and had been operating there for a number of years. The essential purpose of the DCO is to bring about the cessation of this operation. CGL appeals under s 8.18 of the EPA Act against this DCO. Council assigned the following reference number 40-2022-70-2. The Court references the matter as 2022/259609.

Site and setting

4. Fisherman’s Village was approved as a tourist facility in 1992. An expansion was approved in 1993 including provision for a 46 lot community title subdivision. Existing on the site at present are various forms of accommodation. This includes some smaller units and duplexes (together referenced as the cabins in this judgment) and a lesser number of larger separate residences; along with a swimming pool, tennis courts and an “Oyster Barn” with a commercial kitchen and dining area (Ex 2 p 36) (some documentation also makes reference to a basketball court, other material does not). The Fisherman’s Village site covers an area of about 8,000m² and is quite flat and generally clear of vegetation with the exception of landscape plantings scattered throughout the site.

5. The Swan Bay waterbody adjoins to the south and there are some commercial and marine operations on the site to the immediate west which includes a boat ramp into the waterway. There are a small number of larger lot rural residential style dwellings and sheds along Moffats Road nearby.

6. It seems to me there has been a checkered history to the Fisherman’s Village site. According to sworn evidence in the affidavit of R Pene (Ex F), who is the CEO of CGL and the operator of the rehabilitation facility, the tourist accommodation was not operating and was in a state of disrepair when Mr Pene first became familiar with the site and began investigating the potential use of the site for drug and alcohol dependence rehabilitation. While I was unable to see reference to a specific opening date in Ex F, the applicant indicated in closing submissions that the rehabilitation facility has been in operation by Mr Pene for some 10 years.

Only certain lots within Fisherman’s Village are subject to the DA

7. The site for the proposal comprises only some of the land within Fisherman’s Village. Exhibit K, as tendered, comprised a map showing the parts of the larger Fisherman’s Village area that where the subject of the DA. The inclusions were parcels described as Lots 1-11, 15, 17-23, 26-27, 29-38, 42-43 & 45 in DP285220. In regard to inclusions and exclusions of lots within the DA, the following can be noted:

• The large community lot was included in the DA (Lot 1 – including driveways, the swimming pool and tennis courts).

• The Oyster Barn was included in the DA (Lot 2).

• By a significant margin, the majority of the smaller residential lots were included in the DA. But notably, of this grouping of smaller lots, Lots 12-14, 16, 24, 25, 28 and 41 (a mid-size lot), all located essentially adjacent to the included lots (and in some instances comprising one half of a duplex), did not form part of the DA.

• Three of the larger lots accommodating the larger residences were also not included in the DA.

• Some of the included lots did not have a cabin or residence on them (Lots 31-34 and 40).

8. According to Ex K (and not in dispute), all but two of the lots not included in the DA were owned by others who were objectors to the DA. The other non-inclusions happened to be owned by entities associated with CGL.

Proposal

9. Under the DA, consent for a transitional group home is sought for the included accommodation lots (with the associated cabins and residences), the Oyster Barn lot and the community lot.

10. A draft operational plan (Ex L) indicates that a maximum of 30 men would be accommodated in the group home at any one time. The introductory outline of services offered includes the following (Ex L section 3):

“At the Swan Bay property, residents are put through an intensive six-month on-site program, followed by a community rehabilitation for a further 6 months depending on individual needs. The program offers 24-7 staff supervision, access to caseworkers, psychologists, doctors, and group classes both on-site, and at other locations (e.g. consulting rooms). Where activities occur off-site, residents are driven by (Connect Global) staff to and from appointments. Residents are in the company of and always supervised by staff.”

11. Various rehabilitation services are suggested in the draft operational plan, including clinical psychology, counselling and therapy, relationship and communication skills, narcotics anonymous, anger management, conflict resolution and various education and health and fitness programs. Operational procedures are outlined, including admission criteria, rules and regulations for attendees and procedures for handling relapses and disciplinary issues, mechanisms for monitoring and evaluating treatment effectiveness.

Relationship to existing tourist accommodation consent

12. The grant of consent for the transitional group home would mean the two uses would be in a state of coexistence, at least as far as applicable development consents are concerned. Under the proposed arrangements under the DA, occupants of the cabins and residences, located on lots not included in the transitional group home, would still have access to facilities and services otherwise permitted under the tourist accommodation consent, such as the Oyster Barn, tennis courts and, as indicated, basketball courts. This relationship between the two separate identifiable groups of people who would occupy Fisherman’s Village is central to the evaluation of the DA.

13. A section in the draft operational plan for the CGL facility includes the following nominated content: neighbour conflict avoidance policy, complaints and disputes handling procedure, procedures for mixing with non-residents of the facility. There is also commentary in relation to shared access to recreational facilities and the Oyster Barn. The draft operational plan, for example, indicates that other residents “have priority access to tennis courts and basketball courts” (Ex L section 5.7).

Statutory planning context

14. Council advised of the following statutory and planning considerations.

Integrated development

15. The proposal is integrated development pursuant to s 4.46 of the EPA Act as it requires approval under the Rural Fires Act 1997. The Rural Fire Service has issued general terms of approval which are uncontroversial.

State Environmental Planning Policy (Housing) 2021

16. Council advises that, as the proposal is a type of group home, ss 60 to 66 of SEPP Housing applies. Section 62 of SEPP Housing requires the consent authority to assess the community need for the group home before refusing consent for a group home application.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Council advises that the subject land is mapped within the Coastal Environment Area, Coastal Use Area and land within proximity to coastal wetland areas under Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP (Resilience & Hazards) 2021). Accordingly, the development requires assessment against ss 2.8, 2.10, 2.11 and 2.12 of the SEPP. Each of these sections require findings of positive satisfaction, essentially in regard to questions of environmental impacts within the coastal environment. I am relevantly satisfied in regard to each of these sections given the proposal does not bring in potential for coastal environmental impact in any way.

18. I have also considered s 4.6, concerning contamination and remediation and nothing arises in this instance of what is essentially a land use application.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Section 4.8 is relevant as Council have an approved Koala Management Plan. However, Council accepts that the proposed use will not require the removal of any vegetation and consequently will have no impact on Koalas or Koala habitat.

Port Stephens Local Environmental Plan 2013

20. The Site is zoned RU2 – Rural Landscape under Port Stephens Local Environmental Plan 2013 (PSLEP). A group home (transitional) is a permissible development type with consent in the RU2 zone (under the nominate parent term of group home in the land use table). The use is defined as follows:

group home (transitional) or transitional group home means a dwelling—

(a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and

(b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people,

but does not include development to which State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5 applies.

21. Chapter 3 Pt 5 of SEPP Housing is concerned with housing for seniors and persons with a disability and therefore the relevant restriction does not apply in this instance.

22. The objectives of the RU2 zone are as follows:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To facilitate a variety of tourist and visitor-orientated land uses that complement and promote a stronger rural sector appropriate for the area.

23. Tourist accommodation is also a permissible use within the zone.

Contentions

24. Council contended that the application provided insufficient information to assess social impacts. I understood this contention to remain, even with the further information on this topic submitted by the applicant. As indicated in Council’s closing submissions, this topic, relating to social impacts, including both the sufficiency of information supplied and what might be thought of as reasonable understandings of social impact more generally, were at the centre of the case against the application. That is not to avoid the other two contentions which were concerned with:

• land use compatibility (relating to perceived incompatibility between the transitional group home and the approved tourist accommodation), and

• consistency with the zone objectives (noting particularly the third zone objective, which again relates to land use compatibility).

25. In this instance the three contentions are closely interrelated and best dealt with in this judgment together.

Evidence and consideration

26. The experts providing evidence in the proceedings were as follows:

Expert	Expertise	Appointed by
D Mitchell	Town planning	Council
S Leathley	Town planning	CGL
S Coakes	Social impacts	Council
M Sargent	Social impacts	CGL

27. The lay evidence was also important in these particular proceedings. The Court heard from a number of objectors on the first day of the proceedings. There were also some 75 submissions received following the public notification of the proposal. The issues raised in the objecting submissions were outlined in Ex 1 and Ex 7 (par 3.74):

“Incompatibility of the proposed dual land uses of a transitional group home and tourist facility.”

“Impacts on the enjoyment of the cabins for tourist use by the other cabins being used as a group home due to the intermixed nature of tourist cabins throughout the proposed group home facility and shared use of communal facilities. These impacts extend to perceived safety, health, wellbeing, community wellbeing and amenity.”

“Mixing of local residents including children with convicted criminals and drug and alcohol users.”

“Equitable access to communal facilities at the site.”

“Safety concerns relating to the presence of convicted criminals and drug and alcohol users.”

“Anxiousness, fear and unease due to presence of convicted criminals and drug and alcohol users.”

“Overall dissatisfaction with the existing and proposed group home/rehabilitation program, including its effectiveness at rehabilitating participants.”

“Difficulties ensuring proper oversight, security and control of participants in the group home/rehabilitation program.”

“Potential for drug use or illegal activities to occur on the site.”

“Lack of access to emergency services.”

“Anti-social behaviour from group home/rehabilitation program users.”

28. Similar concerns were raised in oral submissions, where objectors outlined aspects of the history of the Fisherman’s Village property and various difficulties that had been experienced.

29. The social planning experts sought to synthesise the objector concerns as suggesting the proposal brought potential for impacts on: (1) sense of place (given the different functional purposes ie rehabilitation and tourist accommodation), (2) sense of community (given the varying characteristics of individuals occupying Fisherman’s Village), (3) personal safety, health and wellbeing (including in relation to the behaviour of CGL management and residents and due to difficulties with ensuring alcohol and drug free environment for CGL participants, given co-existence with other residents), and (4) livelihood impacts (suggested loss of income for tourist cabin owners). I will come back to this synthesis of potential impacts later. As indicated, the objections included concerns about CGL’s management of the facility in the past and there was not a suggestion of great trust of things improving into the future.

30. While I will not go into the particulars here, I also note there were strong submissions in support of the work of the rehabilitation facility. I will come back to the question of beneficial aspects of the facility later.

31. I now turn to the expert evidence. Mr Mitchell was concerned, fundamentally, with the lack of separation between occupants of the two land uses. He believes the proximity of the tourist accommodation cabins and the transitional group cabins, essentially adjacent to one another, along with the shared use of community facilities between the two uses are likely to cause adverse amenity and social impacts upon tourist guests. He notes that prior to arriving at the site, tourist guests are unlikely to be aware that the site operates partially as a transitional group home for men dealing with drug and alcohol abuse problems. He indicates, based on police reports, that some of the residents of the transitional group home (Ex 7 par 3.34):

“… are bound by bail or parole conditions, Apprehended Violence Orders, firearm and weapon prohibition orders.”

32. He was concerned about pre-existing management procedures and was not confident that, even with improved operation management documentation, the land use conflict would be resolved. Mr Mitchell was also not supportive of a consent determination offering a (further) trial period (Ex 13 par 2.7):

“There is an existing land-use conflict occurring on the site, as evident in police reports, Connect Global Limited (CGL) adverse event/incident/near miss reports, submissions, oral evidence from objectors and the Affidavit of Mr Pene. Allowing the development to operate for a 2 year trial period would allow these impacts to continue for the duration of this period, as there remains no satisfactory mitigation measures that would enable the two land-uses to co-exist harmoniously and without conflict. The key cause of the landuse conflict relates to the lack of separation between the land-uses and shared use of communal facilities remains unresolved and unsatisfactorily mitigated through the use of the Connect Global Operational Plan of Rehabilitation Program for Men (OP).”

33. Dr Coakes was also concerned that the CGL operational plan would not be effective in resolving conflict. A particular concern was that the management measures proposed with the operational plan only relate to the management of behaviour of CGL participants (Ex 10 par 7). There seemed to be no dispute that there had been considerable instances of inappropriate behaviour (sometimes allegedly drug and alcohol related) on the part of occupants of the tourist accommodation over time.

34. Mr Leathley and Dr Sargent were supportive of the proposal, especially the notion of a trial period based on improved management procedures, which were seen to be in sight. Of particular note on this point was the (draft) documentary commitments from CGL coming forward in the course of the proceedings, in particular the draft social impact management plan (Ex J) and draft operational plan (Ex L).

Trial period

35. The question of a trial period was given some consideration in the proceedings, including my asking of the experts, directly, their opinions in regard to it. I can indicate here that, on review of all of the evidence and submissions, I am persuaded by the notion of allowing a trial period of operation for the transitional group home facility. At first glance, this might seem an odd option, given that the facility has been in operation for a number of years (and continues to operate pending the outcome of these proceedings). I can explain directly here why, in this case, I see a trial period as an appropriate outcome. There are essentially four reasons.

Societal benefit

36. The first is that of the considerable societal benefit which can be on offer by operation of the facility. There would be no dispute of the societal benefit of rehabilitation of those inclined to criminal activity related to drugs and alcohol. Rehabilitation is important to both those inclined to offend and those caught up otherwise (ranging from innocent persons who happened to be in the way, to friends and family of the offender). On this point, I need to acknowledge Council’s position that a negative finding in relation to the DA appeal should not, in its view, require the immediate cessation of the use under the DCO. Council has proposed a reasonable period for a winding down of the facility such that existing participants could more or less complete their rehabilitation programs.

37. The social planning experts agree that residential recovery programs can benefit many in need of such support (Ex 12 par 9). But on this topic there needs to be some examination of the extent to which these kinds of rehabilitation benefits are actually on offer from this particular facility. There was agreement among the social planning experts that evidence on this topic was limited (Ex 12 par 13):

“The [Social Impact Assessment] Report does not provide any evidence base relating to the benefits/effectiveness of the program, other than the program admission and participant completion data subsequently provided by CGL...”

38. During the course of the hearing I did seek to better understand the extent to which CGL and Mr Pene’s work was directly involved in the criminal justice system and how this work was perceived from that viewpoint. In the footnote to par 26 of Ex 12, Dr Sargent referred to his search of District Court proceedings which revealed eight separate matters involving Mr Pene and/or CGL directly. I have reviewed each of these judgments with respect to Mr Pene and CGL-related references. It is clear from these judgments that the CGL operation at Swan Bay does have a recognised role, in the criminal justice system, as a rehabilitation facility for both on remand and bailed offenders. On the evidence before the District Court in those proceedings, some of the judgments are reasonably neutral but nonetheless essentially accepting of the operation. But others refer to Mr Pene and/or the CGL operation quite positively. A finding of Sutherland SC DCJ referring to the cross examination of Mr Pene in one matter warrants mention here (R v Ismail; R v Bakri (No 1) [2021] NSWDC 796 at [91]):

“91 He was cross-examined in appropriate fashion by the learned Crown Prosecutor. I ultimately was extremely impressed by the nature and description of the program and Mr Pene’s obvious commitment to it.”

39. I will also mention two relatively recent matters. The first case included some evidence critical of the CGL facility, but the findings of Priestley SC DCJ, having considered this and other proceedings involving reference to CGL, still found favourably with respect to the facility’s capacities to have a positive social impact (R v Stewart [2023] NSWDC 469 at [6], [37], [44], [47], [60]). In the second, there was a finding of the District Court’s acceptance of the CGL program and that it had benefitted a particular offender greatly (R v Esho [2023] NSWDC 195 at [5]).

40. Here I also acknowledge lay evidence expressed during the proceedings of stories of unsuccessful rehabilitation and the difficulties of family members associated with this. Indeed, it must be acknowledged that rehabilitation programs of this kind will not have success in all cases.

41. There was some data provided by the applicant through Dr Sargent which indicated, as follows (Ex 12 par 18):

“a. 148 total recorded participants.

b. 13 went back into custody while in CGL or after court outcomes.

c. 27 went into our extension program (graduated with occasional follow-ups.

d. 10 are in our aftercare program (they are checked weekly and also have to comply with regulations laid down by us regarding drug test etc).

e. 25 were removed from the program due to transgressions.

f. 9 quit the program.

g. 73 completed the program – Graduated.

h. 27 currently in the program.”

42. While it must be seen as incomplete, on the evidence before me, I do see the CGL facility as bringing a significant social benefit associated with rehabilitation of those involved in criminal activity related to drugs and alcohol. The benefits associated with CGL’s employment of former program participants is also noteworthy, although of a lesser order. Social benefit is clearly a consideration in the evaluation of development applications (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [102]). In this case, and again recognising some limitations on the evidence (a factor in the decision in regard to a trial period), the potential ongoing social benefit is considerable.

Considerable evidence of a commitment to performance evaluation and improvements

43. A second reason for a trial period relates to the applicant’s and its experts’ arguments that major changes are proposed or have already occurred with the CGL operation. This is with respect to its rehabilitation program but also with respect to its systems for ongoing relations with neighbours, including within Fisherman’s Village. The changes include appointment of an independent board, appointment of additional support staff, and various other elements included in the tendered social impact related documentation. In parallel with their criticism of the existing performance data, the social planning experts also acknowledged the improved performance evaluation information collection that was now proposed (Ex 12 par 13):

“…However, the draft [Social Impact Management Plan] (Exhibit J) does outline the need for CGL to assess the effectiveness of their program through establishment of targets relating to recovery rates (NSW Health) and recidivism rates post intervention (NSW Department of Communities and Justice).”

44. While Mr Mitchell retained his fundamental concerns, the town planning experts expressed agreed support for numerous “key changes” to the draft operations plan “which are a substantial improvement on the previous plan” (Ex 13 par 5.2). It is clear that there is much more rigorous provisions in regard to operation policies and procedures, relating to participants but also including relations with tourist accommodation participants. An important provision which could help manage land use conflict is a conditional requirement that participants undertaking the CGL program do not reside in cabins 11, 15, 17, 23, 26 and 27, (these are the cabins with shared walls with tourist accommodation cabins – CGL staff would be allocated to these rooms).

45. Perhaps the most important prospective aspects are the consent conditions which require the finalisation of the operational plan of management (Condition 2(4)) and social impact management plan (Condition 2(6)) to the satisfaction of Council and prior to the issue of an occupation certificate. The social impact management plan is to be prepared to the satisfaction of Council and its preparation would involve an independent review prior to submission to Council. The operational plan of management needs to be submitted within 30 days of determination of the DA. Generally, it seems that these pieces of work, in a process agreed by CGL, are required to be completed to a high quality and quite quickly. A Complaints & Disputes Policy to Council satisfaction is also required (Condition 2(5)).

Adverse social impacts generally not related to anti-social behaviour by CGL attendees or staff

46. A third reason why I see a trial period as an appropriate outcome in this matter is the relatively low level of anti-social behaviours on the site which can be associated with CGL. It is clear enough that there have been difficult times within Fisherman’s Village associated with the conflicts between the CGL operations and other users. The lay evidence critical of CGL was along two different lines. One line suggested direct actions by CGL which were disadvantageous to other unit owners within Fisherman’s Village (eg discouraging of other unit owners or their tenants from using facilities like the swimming pool or tennis courts). The other line of lay evidence was critical of the management of the rehabilitation facility by CGL and most notably in regard to the lack of supervision of attendees. This second line of evidence was supported by critical reporting on the management of the facility and supervision attendees by NSW Police attending an incident related to the facility in February 2023. This was referred to in Council’s written submissions (Police incident event records E 9295147621 and E 7696501522, Ex 5 pp 256-274). These two incidents did not give rise to conflict with neighbours.

47. In closing submissions (applicant’s written outline of submissions (AWOS), dated 26 April 2014 pars 4-14), the applicant provided what I took to be a more rigorous analysis of Police Incident Reports, including reference to the two matters raised above (E 9295147621 and E 7696501522). This indicated that while there were Police visits to the operation from time to time, there were it seems almost always explanations which did not relate to antisocial behaviour by CGL participants (which otherwise might be seen to cause offence to the residents of the tourist accommodation). The applicant put this analysis of Police Incident Reports, as follows (AWOS par 14):

“All of that makes good the submission with which this section commenced, that there is nothing in the incident reports to indicate any occasion on which the conduct of Connect Global participants or staff has adversely impacted the residents of other units or neighbours of the site.”

48. I find that, generally, the evidence of anti-social behaviour related impacts occurring as a consequence of activities of CGL attendees or staff is very limited.

49. While this is certainly not a good sample to base a decision on, if I turn to the very recent past, on the day of the Court’s inspection of the premises presented as an entirely well-ordered operation, and quite a peaceful setting having regard to the suggested conflicts between land use.

In the particular circumstances of this case, uses are not intrinsically incompatible

50. The fourth reason for a trial period is that, because of the particular circumstances of this case, I am not persuaded that it is unreasonable to think that the two uses can co-exist on the site in a reasonable way. The examination of social impacts identified by the social planning experts provides a useful frame here. A number of the suggested impacts are related directly to the ongoing management of the CGL facility which would be at the centre of the trial.

51. In relation to the impact relating to “sense of place”, it does not seem to me, intrinsically, that: (1) structured rehabilitation and related therapy, need be in conflict with or antipathetic to, (2) tourism accommodation and associated purposes. Compatibility would depend on behaviours of persons from both of the uses. The conditions of consent (incorporating the various performance aspects suggested by the experts and to be finalised in the future) would provide for the control of the behaviour of CGL attendees. While there is no potential for the Court to direct the behaviours of tourist accommodation residents, two points are important on that front. First is that there will be requirements on CGL attendees as to how they relate to these other residents, including should difficult circumstances arise. Second, is that it is fair to expect that behaviour of these residents would be within the general bounds of social acceptability. Or put another way, I think it would be unfair to deny a trial-based consent merely on the chance of otherwise unacceptable behaviour by residents of the tourist accommodation.

52. In relation to “personal safety and wellbeing” related impacts mentioned by the social planners (the most notable of which seems to be that tourist residents might induce CGL participants in drug and alcohol use against their rehabilitation commitments), I am conscious of the findings in R v Stewart [2023] NSWDC 469 at [37] where limitations to rehabilitation programs of this kind were acknowledged but the Court’s findings gave recognition to the centrality of the threat of return to custodial placements as a key driver for continued compliance with the conditions of the facility by participants.

53. The mentioned “change” in “sense of community” associated with CGL operations, as raised by the social planning experts, is not seen as a persuasive point against the proposal given what I see as the checkered history of Fisherman’s Village, generally. This includes evidence of occasional behaviour by residents of the tourist accommodation over time which was antipathetic to a positive sense of community.

54. In relation to the social planners suggestion of “livelihood impacts”, key to which was potential loss of income for remaining cabin owners due to an inability to rent cabins, it seems prejudicial to think this inability might occur, given the requirements of the trial period. That is to say, for example, if tourists were to attend and reside at Fisherman’s Village on the day of the Court’s site inspection, they would likely be pleasantly surprised at the presentation and amenity of the village, including the appearance of the grounds and the qualities of the Oyster Barn. Generally, it might be thought that the trial period seeks something like this to be the ongoing presentation as far as CGL operations are concerned.

Consent conditions, recommended by the parties, relating to on-request acquisition of tourist accommodation cabins

55. It was a suggestion of Dr Coakes that in this instance it would be appropriate for a consent condition to be included whereby a system was put in place to require CGL to acquire tourist accommodation units on the request of the owner of the unit. Dr Coakes indicated in her evidence that this was a response she was aware of in evaluating social impacts for larger scale development as an additional means of addressing social impacts, on top of compliance with a social impact management plan.

56. The conditions of consent between the parties adopt conditions to this effect. A suite of the conditions were related to this topic (the parties’ Conditions 2(8)-(16)).

Submissions by third party against these condition

57. On 1 July 2024 and after approaches to the Court, the hearing was re-opened to hear initial submissions and ultimately grant leave to M Shetab and C Prior (henceforth referenced as “the objectors” in this section of the judgment) to make written submissions in relation to Conditions 2(8)-(16) (that is, in relation to the on-request cabin acquisition conditions). The objectors own nine of the lots and, like the owners of the lots the subject of the DA, have an interest in the common property. The leave which was granted was limited to the making of submissions on the conceptual approach outlined in these conditions and its lawfulness. A submission from the objectors was served on the parties on 8 July 2024 and filed on 23 July 2024. The submission indicates it was prepared by T To of counsel. In brief, the submission of the objectors argued (par 3):

“For the reasons that follow, the Court would conclude that conditions (8) to (16) of the Agreed Conditions are neither within power, nor (even if within power) appropriate to impose. They should not be considered at all, because consideration of them in the exercise of the evaluative decision-making function is apt lead the Court into error, by taking into account irrelevant considerations.”

58. The position of the objectors was that (par 63):

“The Court should not consider conditions (8) to (16) of the Agreed Conditions in the exercise of its determination function, and otherwise should not impose them, because they are unlawful and inappropriate to impose.”

Consideration of on-request cabin acquisition conditions

59. I have understood the on-request cabin acquisitions, as suggested by Dr Coakes, to relate to suggested “livelihood impacts”. That is, the conditions were seen as a means of assisting the tourist accommodation cabin owners, should they wish to sell their property. In accordance with my findings above (at [51]), I am not convinced of such impact. With respect to the evaluation of the DA, I see no need for these conditions. The objectors themselves, who were seen to be the beneficiaries, are also against them. While I note the arguments by CGL and Council in support of these conditions and against the particulars of the objectors’ submissions, for the above reasons they will be struck out of the otherwise agreed conditions.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

60. I have also taken into consideration other relevant matters at s 4.15(1) of the EPA Act, including the likely impacts of the development, the suitability of the site for the development and public interest.

61. I am also aware that, with respect to PSLEP, cl 5.21 (relating to flood planning), cl 7.6 (relating to essential services) and cl 7.9 (relating to wetlands) all would require findings of satisfaction in regard to nominated matters prior to the grant of consent. In respect to cll 5.21 and 7.9, I can make the relevant findings of satisfaction because there is no change relating to each of these topics with the proposal, given that no works are proposed and there is the fact of the pre-existing approval for use for tourist accommodation over the whole of the Fishermen's Village site. I can make a direct finding of satisfaction with respect to cl 7.6 given the availability of services to the site. I also note the advice of the planning experts to this effect (Ex 7 par 2.2).

Conclusion

62. There seems to be a good degree of consensus that drug and alcohol rehabilitation centres of the kind proposed here can be socially beneficial. On the basis of the above evaluation, in this instance, the proposal warrants a two year trial period to allow a fuller evaluation of its performance both for those attending the facility and in relation to its compatibility with adjacent tourist accommodation. The agreed conditions of consent (albeit without on-request cabin acquisition provisions) are an important factor in this determination and are provided at Annexure A to the decision.

63. There is a difference of view between the parties with respect to the DCO appeal. CGL argues this appeal should “fall away” if the DA appeal is upheld. By this I believe orders to revoke the DCO are requested. Council sees a need for the DCO appeal to stay on foot, pending the issuance of the occupation certificate. Council’s argument is there are still conditions of consent, relating to the issue of the occupation certificate, that CGL should be required to comply with to establish its bona fides. Mindful of my commentary at [42], I am inclined to the Council’s position in this instance. Before there is legitimacy to the operation, and revocation of the DCO, these various pre-conditions to the occupation certificate, central to the good ongoing operation of the proposal, need to be addressed.

Orders

64. The Court orders that:

In respect of Proceedings 2023/125407:

1. The appeal is upheld.

2. Development Application No DA 16-2022-839-1 for a transitional group home at Fisherman’s Village Swan Bay is determined by the grant of consent, for a period of two years, and otherwise subject to the conditions at Annexure A.

In respect of Proceedings 2022/259609:

1. Hearing adjourned, pending the issue of an Occupation Certificate pertaining to DA 16-2022-839-1.

2. Listed for Online Court 12 noon 19 December 2024, with parties to advise on status of pre-requisites for Occupation Certificate relating to DA 16-2022-839-1, and provide requests for further orders as relevant.

3. Liberty to restore in the usual manner.

P Walsh

Commissioner of the Court

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Annexure A

Decision last updated: 11 October 2024