Enzo Developments Pty Ltd v Kiama Municipal Council

[2025] NSWLEC 1092

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Enzo Developments Pty Ltd v Kiama Municipal Council [2025] NSWLEC 1092

Hearing dates:

26 & 27 November 2024

Date of orders:

20 February 2025

Decision date:

20 February 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 10.2023.109.1 for the continuing use of an existing orchard, and construction of a netting structure around and over the existing orchard, at 92 Jerrara Road, Jerrara, legally described as Lot 202 DP 1095943, is determined by the grant of consent subject to the conditions at Annexure A.

(3) Exhibits C, E, 2, 4, 5 and 8 are returned. All other exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – continued use of an existing orchard and construction of orchard netting – view sharing principles – impacts on adjacent heritage item

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.15

Kiama Local Environmental Plan 2011, cll 6.2, 6.5

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Tenacity Consulting v Warringah [2004] NSWLEC 140

Texts Cited:

Kiama Development Control Plan 2020

Category:

Principal judgment

Parties:

Enzo Developments Pty Ltd (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/106583

Publication restriction:

No

JUDGMENT

1. Enzo Developments Pty Ltd (Enzo) have planted an orchard on their farm at 92 Jerrara Road, Jerrara, Lot 202 DP 1095943. The orchard contains approximately 250-300 plants consisting of trees, shrubs and vines, and it is the use of this orchard, and the construction of a netting structure around and over it, for which Enzo seeks consent in development application 10.2023.109.1.

2. The site is zoned RU2 Rural Landscape pursuant to the Kiama Local Environmental Plan 2011 (KLEP), with a small area in the north-western corner, outside the development footprint, zoned as C2 Environmental Conservation. The orchard is planted directly to the west and north west of the heritage listed property ‘Park Mount’ at 82 Jerrara Road, and broadly speaking, it is the impacts on this neighbouring property that form the basis of Kiama Municipal Council’s key contentions in this appeal.

3. This appeal was brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) as a result of the Council’s deemed refusal of the development application.

4. For the following reasons, I find that the impact of the development on the heritage significance of Park Mount, views from the dwelling at Park Mount, and on the rural landscape character, is acceptable, and that the appeal should be upheld.

The proposed development

5. The application is for the use of an existing orchard, and the construction of a netting structure to surround it. The orchard is 1.9 hectares in size, and the corresponding netting structure will be maximum 140m long x 140m wide x 4.5m high, supported by galvanised poles set out on a 10 x 8m grid. The black netting, used primarily to protect the fruit from birds, hail and wind will cover the top and all sides of the orchard, pulled taut to the pole structure.

6. The orchard is located to the west of the site, on a slope that falls approximately 12m towards the north. It is set back from the western boundary fence of Park Mount by 48m, which the parties agree sufficiently addresses the setback requirement of 50m established in the Kiama Development Control Plan 2020 (KDCP) control 8.1.1.

7. The orchard falls under the definition of ‘intensive agriculture’ as set out in the KLEP, and as per the zoning table, is permissible with consent in the RU2 zone. The parties concur that, although the KLEP is silent on netting structures, that the proposed structure most appropriately falls under the definition of ‘ancillary structures’.

Figure 1: Aerial photograph of the site. Enzo’s property coloured yellow and marked ‘1’. The approximate orchard location is marked ‘2’. Park Mount is marked ‘3’ and the crown road reserve dividing Enzo’s property is ‘4’. (Source: Ex 3, with added annotations)

Figure 2: Aerial photograph of the existing orchard, marked ‘2’. Park Mount is marked ‘3’ and the crown road reserve dividing Enzo’s property is ‘4’. (Source: Ex 3, with added annotations)

The impact on the heritage significance of Park Mount

The impact on views from the heritage item

8. The Council contends that the proposed development will have an adverse impact upon the heritage significance of Park Mount in terms of its setting and views.

9. Park Mount is a single storey (with attic), mid-Victorian era homestead with later additions to the west and south, and was built by William John Colley in 1849. It is set within a cultivated, established garden, and is thought to be one of the oldest houses in the Kiama district (Ex 3). The Park Mount Residence is listed as a heritage item I77 in Sch 5 of the KLEP. It is listed on the State Heritage Inventory (SHI 1860043) with the following statement of significance (Ex A, tab 8 appendix B):

“Thought to be one of the oldest houses in the Kiama district, possibly 1840’s. Historical interest for its association with the Colley family. Compromised by large modern extension but original structure essentially intact. Original building and pines remain important for views from Jamberoo Road. Local significance.”

10. As a result of a subdivision that occurred in 1984 (Ex A tab 8), the lot on which Park Mount stands exists as an island entirely surrounded by farmland that is currently owned by Enzo (see fig 1). A driveway connects Park Mount to Jerrara Road to the south, and the orchard the subject of this appeal lies to the west of Park Mount (see fig 2). From the evidence of Ms Holtham, the 1984 subdivision reduced the lot size of Park Mount from 80 to 0.8 hectares, resulting in a site that retains minimal mapped curtilage for the heritage dwelling. Regardless, Park Mount retains the setting of a cultivated garden with many large, mature trees (fig 3).

Figure 3: Park Mount and its current curtilage. (Source Ex 5)

Figure 4: Floor plan of Park Mount showing original cottage shaded with north-south axis in red. Note the modern extension to the south-west. (Source Ex 5).

11. In its original state, Park Mount has a north-south orientation, with covered verandahs to the east, north and west. The modern extension referred to in the statement of significance is positioned to the south-west of the original building, and forms the principal living room, kitchen, and terrace (fig 4)

12. From what I was directed to observe on site, it is the views to the west and north-west of the Illawarra Escarpment and Jamberoo Valley, seen from the living room, kitchen, terrace and garden that are of significance, and that these are primarily enjoyed from the modern extension, not the original building. The original building was neither oriented nor obviously designed to benefit from these western views.

13. Further, from the expert heritage evidence of Mr Oultram for the applicant (Ex 5 p 14) it is clear that, although the house now enjoys expansive views to the west, the area was heavily wooded at the time it was built. Land clearing to create open paddocks, primarily for wheat and dairy farming, was a later development, and there is no clear evidence to support any historic significance of the views to the west. Although the respondent submits that the early land clearing by the Colley Family would have resulted in views to the west, north-west and south-west that were of importance and significance, I have no evidence before me to substantiate this, nor the actual extent of land clearing by the Colleys.

14. The property also enjoys unobstructed views to the north and east, which will not be impacted by this development. The views of the original building and pines from Jamberoo Road that are identified in the statement of significance will also not be impacted by the development.

15. I am therefore satisfied that the proposed development will not have any adverse impact on views from Park Mount from a heritage perspective, in accordance with KDCP control 4.3.87.

The impact on the heritage setting of the item

16. The heritage experts then disagree about the impact of the development on the heritage setting of the item, and on the extent of the curtilage of the item. Ms Holtham, the respondent’s heritage expert, submits that the lot boundary that results from the 1980s subdivision does not adequately protect the heritage significance of Park Mount (Ex 5 p15). She suggests that the heritage item must be considered in the context of an expanded curtilage based on its setting in open agricultural land, and that the ‘sharp juxtaposition’ of open landscape surrounding the mature, cultivated garden and homestead is of key significance. In practice, this extended curtilage incorporates the open agricultural landscape of Enzo’s property and possibly beyond, to an extent that is not clearly defined by the experts.

17. Ms Holtham submits that the openness of this expanded curtilage would be unacceptably, adversely impacted by the size and expanse of the netting structure, and the lack of other similarly sized structures in the vicinity of Park Mount.

18. Ms Holtham refers to a study by Morris and Britton for the National Trust of Australia (NSW) entitled ‘Colonial Landscapes of the Cumberland Plain and Camden, NSW, 2000’. In her opinion, this study supports the notion that heritage significance can be adversely impacted by works outside the mapped curtilage, and that it is so affected in this case. I note that the subject site is not located in Camden or the Cumberland Plain, and although the principles within it could conceivably apply to sites outside the study area, the Morris Britton study has not been referenced or adopted by the Council. I therefore place no weight on this study with reference to this application.

19. Mr Oultram’s assessment of significance of Park Mount on p29 of Ex A Tab 8 acknowledges that Park Mount and the subject site are historically aligned as the subject site once formed the pastures to Park Mount. However, he also submits, and I concur that there is no evidence that any aspect of the heritage significance of Park Mount relies on an entirely open landscape in an extended curtilage. Although I accept the heritage item should be appropriately set within a rural landscape, I concur with the applicant that the orchard and netting does not conflict with this. The orchard is a rural use, and is principally vegetation within a paddock, which is appropriate for a rural setting. Further, open fields would be retained to the remaining three sides of Park Mount, having been identified by the applicant as inappropriate for orchard cultivation (Ex A, tab 5 appendix 3).

20. I also concur with the applicant that the site is surrounded by land supporting a range of rural and agricultural uses and structures. The character of the surrounding area is rural, which includes structures such as sheds, farm buildings, dwellings, as well as wooded areas, open fields, planted crops and stockpiled, plastic-wrapped crops. The proposed development maintains this rural use and, although aesthetically novel in the immediate visual catchment, is not, in my opinion, disharmonious. It is an agricultural use of agricultural land, with limited physical impacts and acceptable visual impacts, as discussed below.

21. In the absence of any evidence to suggest the heritage significance of Park Mount relies on a setting of open fields, and further in the absence of any clearly defined extended curtilage, I do not accept that maintaining an expanded curtilage of open fields to an unquantified extent surrounding Park Mount is reasonable or acceptable. Park Mount will continue to sit within a working rural landscape, irrespective of the presence of the orchard.

22. As stated above, I do not accept that the heritage property was originally designed with any consideration of views to the west, and therefore it is my considered opinion that the views from Park Mount to the escarpment in the west do not form part of any extended curtilage or other heritage consideration.

The impact on views to the heritage item

23. Regarding views of the heritage item from the public domain, Mr Oultram states (Ex 5), and it is uncontested, that public views of Park Mount are available from the north along Jamberoo Road, from the east from Jerrara Road, and from the higher vantage points along Riversdale Road, and also that the house is not highly visible from the lower section of Jamberoo Road or the western section of Jerrara Road due to the local topography.

24. To demonstrate the relevant views of Park Mount, at the site view I was taken to two public vantage points: the intersection of Jerrara and Jamberoo Roads to the east of the site (fig 5), and to Riversdale Road to the north of the site (fig 6). From the first vantage point, I accept that the northern corner of the netting structure will be visible as it extends beyond the northern boundary of Park Mount, however I also accept the applicant’s submission that the visual impact of this structure on what is likely to be a passing view from a moving vehicle, is negligible. The visible structure will be dwarfed by the mature trees at Park Mount, and will not, in my considered opinion, overwhelm the view of Park Mount from this viewpoint.

Figure 5: View looking west from Jerrara Road (Source: Ex 5, annotations added)

Figure 6: View looking southwest from Riversdale Road (Source: Ex 5, annotations added)

25. From the second public vantage point on Riversdale Road, I again accept the applicant’s submission that, although the netting structure will be visible, it will be to the west of, and set back from the heritage item by some 48 metres, and will not impact the appreciation of Park Mount. I also accept that Riversdale Road is a low-traffic residential road with no specific destination or viewing point from which the public would seek to view Park Mount. The view we were taken to was incidental, and likely only subject again to observation from passing vehicles and local residents. Park Mount will still be legible as a standalone property from this vantage point, and again the structure substantially lower in height than the mature trees at Park Mount.

26. I therefore accept the applicant’s submission that, irrespective of the impact of the development on views from Park Mount looking west, that the proposed development does not impact the heritage significance of the house itself. I also accept that the heritage setting of Park Mount is not adversely impacted by the development because it is adequately set back from the boundary, and is located so as not to significantly impact views from the public domain, or the ability to appreciate Park Mount and its garden in its own right.

Heritage development controls

27. Chapter 4 of the KDCP contains controls relating to matters of heritage. From the evidence, for the reasons given, I am satisfied that the proposed development:

1. Maintains an appropriate visual setting for Park Mount (control 4.3.22)

2. Retains original and significant landscape features that are associated with the heritage item and contribute to the setting (control 4.3.24).

3. Harmonises with its surroundings, and is appropriate in its scale, form, siting, materials, colour and detailing (control 4.3.79), noting that the black netting and galvanised steel is, in my opinion, harmonious with the rural agricultural setting (see further discussion on this below).

4. Is positioned with an appropriate setback, as per the agreement of the parties (control 4.3.80).

5. Minimises adverse impacts on the setting and significant views to and from Park Mount (control 4.3.87). Further discussion of non-heritage related view impacts are discussed below.

6. Uses materials that are harmonious with the rural character of the area (control 4.3.88).

28. I am also satisfied for the given reasons that the development is sited and designed in a way that minimises the impact on Park Mount as a heritage item (KDCP control 8.4.7).

29. In addition, no evidence was presented to demonstrate that the development would have any adverse impact on any other heritage item within the vicinity, of which there are two: Terragong House at 467 Jamberoo Road (item I61) and Culwulla at 541 Jamberoo Road (item I62). I accept the detail in the Heritage Impact Statement by John Oultram, dated June 2023 (Ex A tab 8), that both are over 2.5km from the subject site and have little visual, and no historical relationship to Park Mount.

30. Finally, for the above reasons, I am satisfied that the proposed development conserves the environmental heritage of Kiama, and the heritage significance of Park Mount, meeting objectives 1(a) and (b) of KLEP cl 5.10 Heritage Conservation. From the evidence in the SEE and the parties’ submission, I am further satisfied that there is limited likelihood of the presence of any archaeological sites, and no evidence of the presence of Aboriginal objects or Aboriginal places of heritage significance. A condition of consent has been included in the instance of unexpected finds of this nature. I therefore am satisfied that the objectives of KLEP cl 5.10 are met with this development.

The impact on the rural landscape character

31. The objectives of the RU2 Rural Landscape zone as set out in the KLEP are as follows:

“1 Objectives of zone

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 protect agricultural land for long term agricultural production.

To provide opportunities for employment-generating development that adds value to local agricultural production through food and beverage processing and integrates with tourism.”

32. The Council contends that the proposed development is inconsistent with these objectives, because it fails to maintain the rural landscape character of the land.

33. Relevantly, Chapter 8.4 of the KDCP contains the following objective and controls relating to ancillary structures:

O:8.4.1 To ensure farm buildings and the like are designed and sited so as to not detract from the rural landscape, scenic quality and environmental significance of the rural areas.

Control 8.4.5 All materials and colours used should be muted or earthy tones appropriate to the local street and landscape context.

Control 8.4.6 External finishes should not strongly contrast with the background whether by orientation, location, colour or choice of materials.

Control 8.4.9 Ancillary development must be designed and sited to protect agricultural land; avoid/minimise their impact on the natural environment and the scenic landscape; and be clustered rather than dispersed over the property

Control 8.4.10 Ancillary development in rural areas must be carefully and sensitively sited and designed to complement landscape rather than become conspicuous built elements in the landscape. The siting of habitable buildings should also have regard to any existing or approved agricultural use of adjoining land and the amenity of neighbours.”

34. In the Joint Report of Town Planning Experts (Ex 4), the Council’s town planning expert, Ben Rourke, describes the landscape character as ‘predominantly…cleared farm land with farm dwellings and ancillary farm buildings which evidences human intervention, plus corridors and fragmented stands of native woodland and forest evidencing historic clearing to facilitate agricultural pursuits.’ He submits that, as there are no other farming structures comparable in area or design to the proposed netting, the development is not considered to maintain the existing rural landscape.

34. Mr Rourke further submits that due to its excessive scale and selected material, the netting structure detracts from the scenic quality of the area, and will be conspicuous within the landscape.

35. I will discuss the view impacts from Park Mount below, however in terms of the rural landscape character of the land, I do not accept that the only way to maintain the rural landscape character is to preserve it in stasis, with little to no change to the open rolling hills that currently define it. I concur with Mr Barwick’s submission in Ex 4 that a rural landscape can include a range of structures, and that the lack of comparably sized structures in the locality does not equate to it being contrary to the landscape character.

36. Relevant to the provisions of the KDCP and the landscape setting is the siting of the orchard. The applicant has provided evidence in the Class 1 application (Ex A tab 5) to justify the siting of the orchard in this location. From this I accept that the position of the orchard within the subject site was selected based on an assessment of soil depth and quality, land aspect, slope and drainage, and a response to site constraints including a right of carriageway, remnant native vegetation, riparian corridors and rocky areas. I further accept from oral the evidence of Mr Barwick that the siting has been made with consideration of views from Jerrara and Jamberoo roads. I am therefore satisfied that this adequately justifies the selected location.

37. Putting aside the view impact from Park Mount, I note that from the limited public vantage points I was taken to at the site view, the only location where the structure would be seen in its entirety is from Riversdale Road, demonstrated by fig 6. From this point, the orchard would be viewed from an oblique angle, and would occupy a relatively limited portion of the field of view. It may also be that from this point the transparency of the netting becomes relevant, as there will be the potential to view the orchard trees through only one layer of netting, making the orchard itself as relevant to the view as the netting. No submissions have been made, nor evidence presented that suggests that the orchard planting itself is incompatible with the landscape character.

38. I was shown no vantage point where the netting structure would be viewed from an elevation where its full expanse would be appreciated, and concur with the applicant that, although netting is not currently seen within the local area, the netting structure and orchard will not dominate the view, nor be incompatible with the rural landscape character. I further accept the applicant’s submission that the black colour of the netting has been selected to be as visually recessive as possible.

39. I concur with the applicant that the proposed development of trees, shrubs and vines covered with netting is compatible with, and therefore maintains the rural landscape character of the land, meeting the objectives of the RU2 zone.

40. I am also satisfied of the following in relation to the KDCP:

1. That the development has been adequately designed sited so as not to detract from the rural landscape, scenic quality and environmental significance of the rural area, and is clustered in one location (O:8.4.1 and control 8.4.9).

2. The selected materials and colours are muted and contextually appropriate, and do not strongly contrast with the background (controls 8.4.5 and 8.4.6)

3. The development has been designed and sited to complement the landscape, and has regard to the amenity of the neighbours (control 8.4.10).

The view impact

42. It is uncontested that the orchard and proposed netting structure will impact the western view from Park Mount, however the extent of this impact, and the extent to which accepted ‘view sharing’ principles have been applied, is disagreed between the parties. Adverse visual impact has also been raised in these proceedings as a primary concern from the owners of Park Mount, Mr and Mrs McElhone, who submitted a written objection during the notification period and made oral submissions at the commencement of these proceedings.

43. As stated above, it is an important distinction that the views that are impacted are seen from the modern extension to Park Mount, not the original heritage building. This modern extension is noted in the Statement of Significance to have compromised the original heritage building. Further, the statement of significance for Park Mount makes no mention of long views or escarpment views from the dwelling, and I do not accept the oral evidence of the applicant’s experts that the escarpment views were either historically available or important to the Colley family. I therefore consider that the view impacts from Park Mount are unrelated to its heritage status, and should be assessed in terms of view sharing principles only.

44. Relevant to this issue are the following provisions from of the KDCP, as set out in the amended Statement of Facts and Contentions (Ex 3):

Chapter 3

O:3.2.3 To maintain view sharing principles though the development and redevelopment of areas.

O:3.2.4 To ensure that where practical new development is designed and sited not to significantly alter views (including water and/or escarpment views).

O:3.2.5 To ensure that primary private views are maintained through the addition of new development.

Control 3.2.10 Any development in Kiama should incorporate view sharing principles into the design and siting of development to ensure that where possible with that existing view lines are not detrimentally impacted.

Control 3.2.12 Development should ensure, where possible, that there is no unreasonable loss.

Chapter 8.1

O:8.1.8 To protect rural residential amenity

O:8.1.9 To minimise the impacts of horticulture on adjoining properties,

Control 8.1.3 Must not be located in visually prominent areas such as ridgelines and highly exposed areas.

Control 8.1.5 Must, where practical, be sited in locations that minimise impact to the amenity of surrounding land uses.

Control 8.1.12 Where possible, buildings and facilities are to be located out of the line of sight of adjoining neighbours.

45. Although there is evidence that the netting, when seen in a single layer is transparent, the applicant does not contend that one will be able to see through the orchard from a position within Park Mount, once mature and netted. The applicant accepts that the sample netting images provided in the Statement of Environmental Effects by Planscapes Town Planning Consultancy (undated) (SEE) (Ex A tab 5) illustrates only one layer of netting with no vegetation behind it, whereas the orchard, once mature and fully netted, will read as up to three layers of netting (roof and walls) with sometimes dense vegetation behind it.

46. Consequently, there is no question that the orchard, when mature and covered with netting will, at best, obscure the view of the escarpment and Jamberoo valley in part.

47. At the site view, I was taken to several vantage points in and around the modern extension of Park Mount that are likely to be impacted by the development to varying degrees. These included: standing at the lower level within the garden; standing at the two corners of the modern terrace and heritage verandah where tables and chairs are currently positioned; inside the living room both sitting and standing; and standing inside the kitchen. Two viewpoints were made from inside the original buildings: standing inside the ground floor study and in the upstairs bedroom.

48. The only comprehensive visual impact assessment (VIA) in evidence was provided by the McElhones as part of their letter of objection (Ex 2 tab 5 Appendix D). The VIA was prepared by Urbis on 12 October 2023, and authored by Jane Maze Riley. Although Ms Maze Riley was not an expert in these proceedings, the images produced in her report provide the most useful guide for estimating the visual impact of the development, and were in part adopted in the planners joint report (Ex 4).

49. From this, and from the estimates I was directed to make at the site view, with regard to the view of the Illawarra Escarpment and Jamberoo Valley from Park Mount, I note the following:

1. The view impact is greatest at the southern end of the orchard, and least to the northern end because of the downward slope of the land from south to north.

2. The view looking directly west is the most affected, as it corresponds with the highest part of the slope on which the orchard sits, and aligns with the living room of Park Mount.

3. The view from standing within the western garden, at a lower level than the verandah, is the most affected, with almost the entirety of the view obscured (Figure 10 Ex 4).

4. The western view from the front (north), covered verandah will also be severely affected, (Fig 9 Ex 4), however I note that the primary aspect of this part of the verandah is north, which retains an unobstructed view.

5. The view west from the terrace, where the outdoor dining table is currently located, is impacted by loss of foreground and the lower portion of the escarpment to the west, and some foreground to the north west. The top of the escarpment is retained in a continuous line, and some hills in the middle ground are retained (Fig 10). It is likely that parts of the Jamberoo Valley are visible to the north west, however this is unconfirmed by photomontage evidence.

6. The internal views from the kitchen and living room will be moderately impacted, with the loss of mid-ground view through some windows. The existing view of Enzo’s property is in many places screened by vegetation within the Park Mount garden and so this loss is partial.

50. The applicant submits, and I concur, that the most significant of these views is from the western terrace under the pergola, where an outdoor dining table is currently positioned (Figs 7, 8 and 10). The most severe impact would be from standing within the garden, as it is at the lowest elevation and removes any potential to view over the structure.

Figure 7: view from terrace of Park Mount looking north-west, location F on fig 9. (Source: Ex 4)

Figure 8: view from terrace of Park Mount looking north-west, location D on fig 9 (Source: Ex 4)

Figure 9: Aerial view of park mount with locations of photos taken in Ex 4, including locations D and F from figs 7 and 8 above. (Source: Ex 4)

Figure 10: Western view from pergola at Park Mount with approximation of netting shown. (Source: Ex 2 tab 5)

51. To assess the application of view sharing principles in the development, as per objective O:3.2.3 of the KDCP, the parties utilised the four-step assessment set out in Tenacity Consulting v Warringah [2004] NSWLEC 140 (Tenacity) at [26].

52. The first step – the assessment of views to be affected – was the subject of some focus between the experts, particularly with reference to whether the view is ‘iconic’. From the evidence of the planners, I accept the submission of Mr Barwick that a long-running mountain range at a great distance would be considered ‘significant’ rather than ‘iconic’, as it would not be immediately recognisable if taken out of context. Mr Barwick gave the example of viewing photographs of both the Blue Mountains and the Three Sisters rock formation in Katoomba, stating that while the Blue Mountains may not be easily identifiable from another mountain range, the Three Sisters is distinct, unique, and recognisable. On this basis he would suggest that the Three Sisters could be considered ‘iconic’, whereas the Blue Mountains not. On the same basis, Mr Barwick submits, and I accept, that while the Illawarra Escarpment may be recognisable as an escarpment, it is not necessarily distinguishable from another and, although it forms a view of high scenic quality it is not an ‘iconic’ view.

53. Nonetheless, the view from Park Mount is undoubtedly of high scenic quality, and are highly valued by the McElhones. This is not disputed by the experts. The view of the escarpment and valley is a primary view from Park Mount.

54. The second step in Tenacity is to consider from what part of the property the views are obtained. Given the unusual subdivision layout to Park Mount, the consideration of ‘side views’ and ‘side boundaries’ is irrelevant. As I have outlined above, this particular view is enjoyed from a series of vantage points, in both a seated and standing position. The western view is both framed and obscured by mature planting from within Park Mount itself, meaning that some of the potential existing view is already obscured.

55. From what I was directed to view on site, I consider that the internal views, while affected, are not as critical due to the layout and size of windows, the position of a fireplace in the middle of what would otherwise be a wide view, and the ability to enjoy other outlooks such as the garden in the foreground, and the northern and eastern views. I also do not consider that it is reasonable to protect the view from standing within the garden, as I do not consider this a primary living space, and again one can turn and enjoy northerly, easterly and garden views.

56. I concur with the applicant that the most significant and relevant vantage point from which to assess the view impact is from the south-western terrace, under the pergola (between locations D and F on fig 9, and as shown by figs 7 and 8). The impact is best demonstrated by figure 10, which was taken somewhere between locations D and F on figure 9. This image shows part of the north-western view, and demonstrates that this view is impacted by loss of foreground and the lower portion of the escarpment to the west, and some foreground to the northwest. The top of the escarpment is retained in a continuous line, and some hills in the middle ground are retained. Outside of the field of view in this photograph is further view to the north west which will be largely unobstructed by netting due to the slope of the land. From this, using the language of Tenacity, in my opinion the view impact is moderate, and the primary view of escarpment and valley is maintained in accordance with KDCP objective O:3.2.5.

57. The fourth step of Tenacity is to assess the reasonableness of the proposal. The respondent submits that the development could only be assessed as unreasonable, due to a direct non-compliance with several of the KDCP controls, including controls 8.1.3 as it is located in a highly exposed area, 8.1.12 as it is located within the line of sight of adjoining neighbours, and controls 4.3.79 and 4.3.87 relating to heritage. For the reasons given I am satisfied that the development adequately meets the heritage-related controls of the KDCP.

58. Mr Barwick gave evidence regarding KDCP control 8.1.3 where, although he concedes that the orchard is located in a highly exposed area, he qualifies this concession by stating that the entirety of Enzo’s property is highly exposed due to the extent of historic land clearing and the consistent northern aspect. He states that, as a result, the applicant has made efforts to minimise this exposure by locating the orchard where it is least visible from Jerarra Road, is only visible in a limited way from Jamberoo Road, and is not on the ridgeline.

59. I concur with Mr Barwick, and note that many other parts of Enzo’s property were far more visible from the public vantage points to which I was taken than the selected site.

60. Further, given the fact that Park Mount is entirely surrounded by Enzo’s property, it is not possible to locate an orchard out of the line of sight of Park Mount as required by KDCP control 8.1.12, and I accept the applicant’s submissions on the suitability of the location.

61. The applicant further submits that the proposed development is reasonable because it brings about a viable agricultural use of agricultural land, in an area where traditional farming businesses are becoming less viable, and diversification is required. While I do not accept the applicant’s submission that refusal of this orchard will effectively sterilise this part of the land for agricultural purposes, I do accept that the orchard is a reasonable use, that has been sited with consideration of the relevant constraints, and strikes a balance between agricultural practice and impacts on neighbouring properties.

62. In summary, I am satisfied that the development achieves a reasonable standard of view sharing with Park Mount, because it maintains the primary view of the upper escarpment to the west and north-west, and increasing middle and foreground moving round to the north-west (objectives O:3.2.3, O:3.2.5 and control 3.2.10). Further, the views to the north, also of high scenic quality, are unaffected.

63. The orchard has been sited with consideration of practicality and agricultural suitability, and strikes a balance between reasonable use of agricultural land and acceptable impacts on Park Mount (Objectives O:3.2.4 and control 3.2.12). The development protects rural residential amenity, and minimises the impact on adjoining properties through achieving an acceptable level of view sharing, and meeting the required minimum separation distances (Objectives O:8.1.8, O:8.1.9 and controls 8.1.1, 8.1.5).

64. The orchard is not located on a ridgeline, and I accept, is not within a highly exposed area when considering the constraints of the site (Control 8.1.3). I also accept that given Park Mount’s position within Enzo’s property that it is not possible to locate any structure out of sight of the adjoining neighbours (Control 8.1.12).

65. This is consistent with the relevant KDCP objectives, and is further consistent with a flexible application of the relevant KDCP controls.

Contamination

66. In objection, the McElhones raised a question of contamination, which was incorporated into the Council’s contentions. However, on the basis of further information filed by the applicant, this contention was not pressed at the hearing. I note that the McElhone’s maintained their objection on these grounds.

67. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) s 4.6 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. In accordance with s 4.6 (2), I have considered the findings of the Preliminary Site Investigation by ENRS dated 19 November 2024, provided by the applicant and accept that no evidence of ground or soil contamination was found, including in relation to coal washery rejects as raised by the McElhones. I am therefore satisfied that for the purposes of s 4.6, the site is suitable for the intended orchard use.

Other matters of jurisdiction

68. In addition to those points of jurisdiction I have already discussed, I note the following.

69. Pursuant to the requirements of KLEP cl 6.2 relating to earthworks, from the applicant’s submission and the details of the development contained within Exhibit A, I have considered the matters set out in cl 6.2(3) and am satisfied that the earthworks proposed in this development are limited, and acceptable pursuant to these considerations.

70. Pursuant to the requirements of KLEP cl 6.5 Riparian land and water courses, again on the basis of the applicant’s submission and the details of the development contained in Exhibit A, I have considered the matters set out in cl 6.5(3) and am satisfied that the development is designed, sited and will be managed to avoid any significant environmental impact.

The public interest

71. The application was appropriately notified, and two submisisons were received: one in support, and one of objection. The objection was received from the McElhones, and I have considered and, where relevant addressed the issues raised. For the reasons given, I am satisfied that the proposed development is acceptable when considered against the concerns raised.

72. I am further satisfied that the proposed development meets the relevant development controls in both the KLEP and KDCP, and I therefore consider that the development is in the public interest.

Conclusion

73. For the given reasons, I am satisfied that the proposed development, when evaluated against the relevant considerations pursuant to EPA Act s 4.15, is acceptable. I am further satisfied that there is no jurisdictional impediment to the grant of development consent in this case, and accordingly, the appeal should be upheld.

Orders

74. The Court orders:

1. The appeal is upheld.

2. Development application DA 10.2023.109.1 for the continuing use of an existing orchard, and construction of a netting structure around and over the existing orchard, at 92 Jerrara Road, Jerrara, legally described as Lot 202 DP 1095943, is determined by the grant of consent subject to the conditions at Annexure A.

3. Exhibits C, E, 2, 4, 5 and 8 are returned. All other exhibits are retained.

E Washington

Commissioner of the Court 

Amended Annexure A (323970, pdf)

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Amendments

06 May 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 06 May 2025