Forgall Pty Limited (ACN 074 213 933) v Greater Taree City Council
[2014] NSWLEC 1132
•30 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Forgall Pty Limited (ACN 074 213 933) v Greater Taree City Council [2014] NSWLEC 1132 Hearing dates: 24 and 25 March 2014 Decision date: 30 June 2014 Jurisdiction: Class 1 Before: Dixon C Decision: 1. Appeal dismissed.
2 Development Application 673/2008 for the construction of a Bio-clinic Facility at Lot 2, DP 1148343, Saltwater Road, Wallabi Point is refused.
3. The exhibits are returned except for exhibit D.
Catchwords: DEVELOPMENT APPLICATION -Bio-clinic Facility on rural land adjacent to a National Park and Nature Reserve - Permissibility - Consistency with zone objectives Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Native Vegetation Act 2003
National Parks and Wildlife Act 1974
State Environmental Planning Policy No 71 - Coastal Protection
Greater Taree Local Environmental Plan 2010
Greater Taree Local Environmental Plan 1995Cases Cited: Dem Gillespies v Warringah Council [2002] 124 LGERA 147 Texts Cited: NSW Rural Fire Service - Planning for Bushfire Protection 2006 Category: Principal judgment Parties: Forgall Pty Limited (ACN 074 213 933) (Applicant)
Greater Taree City Council (Respondent)Representation: Chris Shaw (Applicant)
Adam Seton (Respondent)
Shaw Reynolds Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 10370 of 2013
Judgment
This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of a development application for the construction of a 'Bio-clinic Facility' on rural land at Lot 2, DP 1148343, Saltwater Road, Wallabi Point.
The proposal
As this is the first application of its kind in Australia I need to explain the nature of a "Bio-clinic Facility".
According to the documentation filed with the amended application it is a 'holistic health care facility' for the treatment of patients suffering from cancer and other chronic illnesses such as AIDS and hepatitis (amended statement of environmental effects dated 11 March 2014 (Exhibit F)).
The treatments offered are described as including a range of established and internationally recognised therapies that are not currently available in Australia together with, more conventional and mainstream therapies. They aim to increase the functioning of the individual's immune system so that it is able to destroy the disease. This is achieved through the combined use of pro-active immune system therapies such as:
- Whole body heat therapy;
- Local heat therapy using heat pads and electrolysis;
- Ozone /oxygen injection into the bloodstream;
- Mistletoe/Thymus injection into the bloodstream;
- Detoxification
The facility is also offering renal dialysis for patients. These patients will receive a diet review and education about maintaining a positive lifestyle with chronic renal disease.
The treatments are based on what is said to be a unique concept called 'Ecomedicine' which is the treatment of chronically ill patients in an environment which provide them with the best opportunity for self-healing.
The applicant believes that the site at Wallabi Point and its surrounds is an ideal location for its facility because it has "...the necessary organic spiritual backdrop for patients who are seeking a tranquil, stress free environment that is essential to creating the best opportunity for self-healing"(at p 4 (Exhibit F)).
The elements of the development
The development comprises the following built elements:
- A main function building (with a reception area; 19 accommodation rooms; X-ray and ultra sound rooms; heat therapy room, gymnasium, staff rooms; kitchen; offices, storage rooms)
- Consultation rooms
- 10 x 1 bedroom patient accommodation (cabins) - (cabin 6 was deleted from the application during the hearing)
- Water feature
- Recreation area
- 54 car spaces
Further detail about the design is contained within the amended plans in (Exhibit E), the accompanying design report prepared by Mr Lawrence (Exhibit K) and the Concept Landscape Plan (Exhibit B). An analysis of the environmental impacts of the development is contained in the various documents and reports prepared by the applicant's planner, Mr Fish, of PDA Services which form part of the amended application.
The facility will have up to 28 staff at any one time including: 3-4 full time doctors; 5-6 full time medical support/nurses; 5-6 physiotherapists (who conduct hydrotherapy); 1 ultrasound/radiologist technician; 4 administration staff; 2-3 kitchen workers; 1 caretaker; 1-2 gardeners and 2-3 external medical consultants.
The facility will accommodate a maximum of 31 inpatients. They will arrive by car or in the facility bus having been collected from nominated locations. Family members can visit a patient staying at the facility and, in some cases the partner of a patient will be allowed to stay with the patient in the onsite cabins. However, such visits will need to be structured into the patient treatment plan.
The facility contains a meeting room that will also function as a research room where it is intended to collect and analyse data in respect of the various treatments and their success rates. The meeting room will also be used for group sessions with patients to discuss the nature and form of their treatments and as a small lecture room to conduct sessions in respect of a multitude of holistic health needs.
Statutory Controls
The planning controls, which apply to this application, are set out in the Council's statement of facts and contentions (Exhibit 2).
It records that the site is located within zone 1(a) Rural General under the Greater Taree Local Environmental Plan 1995 (LEP 1995) which applies by dint of the savings provision in cl 1.8A of the current plan Greater Taree Local Environmental Plan 2010 (LEP 2010) which prohibits the development.
However, as the proposed use is not defined in LEP 1995 in order for the development to be permissible the Court must determine that it is consistent with "...such objectives of this zone as are relevant in the particular case".
The relevant objectives provide:
12 General rural zone objectives
The objectives which apply generally to all rural zones are:
(a) the efficient sustainable agricultural utilisation of rural land, particularly prime crop and pasture land,
(b) the conservation of prime crop and pasture land by ensuring that:
∙it is not necessarily converted to non-agricultural purposes,
∙any allotment created for intensive agriculture is potentially capable of sustaining it without detrimental effect on the environment of the locality, and
∙development will not have a detrimental effect on the environment of the locality, and
∙development will not have a detrimental effect on agricultural operations in the locality,
(c) the protection or conservation of:
∙soil stability by controlling development in accordance with land capability,
∙forests of commercial value for timber production and trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is likely to reduce land degradation,
∙land affected by acid sulphate soils by controlling development of that land likely to affect drainage or cause soil disturbance,
∙valuable deposits of minerals and extractive materials by controlling the location of development to enable the efficient extraction of those deposits,
∙water resources,
∙environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values,
(d) the protection of development from significant hazards particularly risks from bushfire or flooding so that development would not be likely to increase those hazards,
(e) the location of development in such a way as to avoid creation of road traffic hazards or ribbon development along roads, and
(f) the regulation of development so that it:
∙upholds the principles specified in paragraph (c), and
∙does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.
Development control table
Zone No 1(a) Rural General
Objectives of zone
The objectives are:
(a) the objectives specified in clause 12,
(b) the promotion of rural tourist facilities which are appropriate for and require a rural location for efficient operation,
(c) the promotion of industries which require special environmental conditions, such as a large site or remote location, in areas where services and access appropriate to the industry can be facilitated, and
(d) the enabling of development for purposes that are:
∙appropriate in a rural location
∙appropriate for agriculturally productive lands used for grazing and cropping, and
∙sympathetic with the environmental characteristics of the land.
Without consent
Agriculture (other than intensive agriculture or building structures ancillary to agriculture); forestry; oyster farming.
Only with consent
Any development other than development which is permissible without consent or which is prohibited.
Prohibited
Except as otherwise provided by this Table, all development which is not consistent with such objectives of this zone as are relevant to the particular case.
Contentions
The Council's statement of facts and contentions identifies several issues with the amended development application. While some of the issues have been resolved by the provision of further information and the amendment of plans (p1 addendum report dated 19 March 2014 to joint statement of experts) (Exhibit G) the principal issue as to permissibility remains in dispute.
It is the Council's case that the development is not consistent with such objectives of the 1(a) Rural General zone as are relevant in this case and for that reason the development is prohibited.
In particular the Council contends that the development is not consistent with the General rural zone objective (c) set out in cl12 of LEP 1995 which states: "the protection or conservation of:
- environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values"
It also contends that it is not consistent with the objectives of the 1(a) Rural General zone namely: objective (a) which calls up " the objectives specified in clause 12", and objective (d) "the enabling of development for the purposes that are:
- appropriate in a rural location, and
- "sympathetic with the environmental characteristics of the land "
(Emphasis added)
The Council's assessment that the development is not consistent with the relevant zone objectives is based in part upon a finding that there is insufficient detail in the application. In particular, detail about the amount of vegetation clearing needed to achieve the Asset Protection Zones and emergency access required by the Rural Fire Service and the final landscaping detail for the proposal. It submits that without that detail there can be no proper assessment of the development's consistency with the identified relevant zone objectives.
The Council submits, based on the available evidence, the Court cannot determine the development is consistent with the relevant zone objectives. It must therefore find the development to be prohibited under the zoning table.
It is also relevant to note that the application is subject to the provisions of State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71). The Council contends that the development (if it was otherwise permissible) does not meet the stated aims of that Policy:"(g) to protect and preserve coastal and native vegetation" and "(k) to ensure that the type, scale and size of the development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area..."It also contends that if, as required by cl 7(b), the Court takes into consideration the matters in cl 8 of the SEPP 71, particularly in paragraphs (d), (f) and (J) of that clause it would find the development unacceptable.
Expert Evidence
The Council's Senior Planner, Ms Bowen and the applicant's Planning Consultant, Mr Fish, are the planning experts in this case. Their joint planning report and addendum report are (Exhibit G). They gave additional oral evidence at the site and at the hearing in Forster
Objectors Evidence
Many members of the local community object to the amended application. An overwhelming majority of the submissions received by the council (and tendered to the Court) state that the development is inappropriate in this rural location. Generally, the objectors believe that the development is not sympathetic with the environmental characteristic of the land adjacent to a National Park and sensitive coastline. The objectors support the Council's assessment that the development is not consistent with the relevant zone objectives of the land.
Several of the objectors who lodged submissions addressed the Court at the commencement of the hearing. Amongst them were Mr and Mrs Abbott who reside on the adjacent residential headland of Wallabi Point and have an outlook toward the development site and National Park.
Their evidence repeats the concerns expressed by many of the objectors to this application. In particular, they are concerned about the uncharacteristic built form of the development within the existing rural and coastal landscape; its height, length and width in a cleared area of the site visible from the residential headland (particularly at night) that will need further clearing to accommodate the 35m Asset Protection Zones (APZ's) required by the Rural Fire Service. They both told the Court of their concern that the development would have unacceptable visual impacts when viewed from the village of Wallabi Point and its residential headland.
They also raised concerns about bushfire evacuation from the site along Saltwater Road which is the only sealed access path for people, cars and rural fire services all with competing needs for evacuation and access in the event of fire.
Mrs Abbott is a retired nursing sister and, in her opinion, the use of this isolated and remote rural site for the treatment and accommodation of chronically ill patients for what is in effect a medical clinic inappropriate. She believes the use is not sympathetic with the environmental characteristics of this rural and coastal isolated land. In particular, Mrs Abbott is concerned about the occupational health and safety issues which arise from the layout of the cabins which nursing staff must negotiate at night to care for patients and the site's distance from a main hospital in the case of an emergency. All of these features, she says, support a conclusion that the development is inappropriate for the site.
In order to appreciate the evidence of Mr and Mrs Abbott as to the visual impacts of the development, the Court inspected the site when viewed from their home. Along the way, at the request of the parties the Court also tried to gain some appreciation of the visual of the development when viewed from the immediate street frontage along Saltwater Road and two separate locations nearer the local shops. The viewing locations are identified on site plan in Exhibit A.
The Court also heard from Mr Leon, an Aboriginal consultant and archaeologist, who resides in the Taree area and Mr Clarke who is employed at the Taree Indigenous Development & Employment Service. They explained to the Court the Aboriginal cultural significance of the site and Aboriginal Place located about 500m from the site. Their evidence about their personal experiences and knowledge of Aboriginal use of the site in the recent past and the area historically accords with the Office Of Environment and Heritage's letter to the Council dated 22 January 2014 that raises concerns about the adequacy of the site investigations undertaken by the applicant's consultant in respect of Aboriginal cultural heritage issues (at folio 215 of Exhibit 5).
Background
Having had the opportunity to view the site, I appreciate why the applicant has selected the land for its development. It is a tranquil and naturally scenic rural coastal location. The site is adjacent to Saltwater National Park (including Saltwater Headland) to the south and Khappinghat Reserve to the west and opposite Wallabi Beach.
It contains intact vegetation communities and previously cleared areas. I was shown two areas of the property which are the subject of two Remedial Directions issued by the Office of the Environment and Heritage on 2 December 2009 and this Court on 10 August 2012 under s38 of the Native Vegetation Act 2003. Relevantly, these areas are not affected by this application.
The site has Aboriginal cultural significance and, is located about 500m from a declared Aboriginal Place. The submission to the Council from the Office of Environment and Heritage dated 22 January 2012, about the amended application, discusses the areas' Aboriginal cultural significance and its environmental sensitivity. I am told that Khappinghat Nature Reserve and Saltwater National Park were dedicated in 1999 and 2003 to protect sensitive coastal beach and wetland, dry and wet heath and estuary and forest communities on the Mid North Coast of NSW. The dedication of the Saltwater National Park includes the Saltwater Aboriginal Place listed under s84 of the National Parks and Wildlife Act 1974 - recognising Saltwater for its special significance with respect to Aboriginal culture. As stated earlier some of the objectors to the application spoke about the historical use of the site by Aboriginal people as a meeting place (at folio 215 in Exhibit 5).
Despite, the ecological sensitivity of the area, the planners in this case agree that the development is unlikely to have a significant impact on threatened species, populations or ecological communities or their habitats in the locality. They also believe that "appropriate due diligence has been carried out to investigate the likelihood of aboriginal cultural artefacts existing on the site" (at paragraph 1 addendum joint report (Exhibit G))
A drainage depression called Saltwater Gully runs north to south through a part of the site and into the National Park. Understandably, some of the local objectors are concerned that the use of the creek by patients for healing, or contaminants from the facility being released into the creek and ground water will have dire consequences for the area. The submission from the OEH also identifies these potential risks (at folio 216 in Exhibit 5). However, the Council is satisfied that the general terms of approval (GTA's) from the Department of Primary Industries Office of Water (at folio 227 in Exhibit 5) satisfactorily address these matters.
Lot 2 is located about 1 km from the residential centre of the township of Wallabi Point. It has an area of 81.44 ha. The area within Lot 2 proposed for development is about 8.64ha. Some of that area has been cleared while a further 2.227ha is to be cleared.
The only sealed access to the site is via Saltwater Road (although there is an unformed road which provides legal access from Link road to the north of the site).
There is an existing large shed on the property and a dwelling house on the adjoining block. It is buffered by vegetation including some Norfolk Pines. I have been told that the adjoining land has been approved for use as a caravan park and that such a use has been commenced. Although it has yet to be developed for such a use. The adjoining owner supports the application.
Discussion
The planners disagree about the development's consistency with the relevant 1(a) Rural General Zone objectives.
Mr Fish believes that the development meets the relevant objectives of the zone. He states in his statement to the Court that the development seeks to preserve the established rural character, visual amenity and scenic qualities of the locality. In his assessment, the development is appropriate in a rural setting and will have no visual impact on the users of Saltwater Road, which in his view is the only public place from which the development has the potential to be seen. In any event his evidence is that additional planting to further screen the development from Saltwater Road can be conditioned if required.
The design of the development is, according to Mr Fish, appropriate in a coastal setting given its typical residential form and, therefore it is consistent with the aims in SEPP 71. He also believes that the development does not diminish the character of the area surrounding the village given that there are a number of large residential buildings in the village of Wallabi Point. In his assessment the size, height and bulk of the main building is not inconsistent with those existing buildings.
Ms Bowden takes the opposite view. Her evidence is that the development is not consistent with the relevant General zone objective (c) in cl12 which requires: "the protection and conservation of...environmental values of the land and visual amenity including landscape and scenic qualities, rural character and tourism values" or the relevant Zone No1 (a) Rural General objectives (a) and (d). In her view this development is prohibited under the zoning table.
In her assessment a Bio-clinic Facility is inconsistent with the Rural 1(a) zone objectives identified because it is a development of a type and intensity that is uncharacteristic of and incompatible with a rural location adjacent to a National park and sensitive coastal location.
Her evidence is that the facility is not appropriate in the rural locality "... by virtue of the adverse impacts of the development on the nonuniform and natural rural character of the locality". She believes that "...the existing rural character creates a sense of place through the spatial arrangement of the landscape and the proposal does not visually fit within that existing landscape"(addendum joint report Exhibit G) While she accepts that the reduced height of the amended proposal is important in the design to ensure that the development is less visible from the frontage of Saltwater Road, she is still concerned about its height and bulk and scale when viewed from the other vantage points that the Court was taken to on the view - (marked on Exhibit A).
In her assessment the development is not sympathetic with the environmental character of the land or appropriate in this rural location, proximate to the beach, coastline, headland and adjoining National Park.
She believes that the visual amenity (landscape and scenic quality) of the land will be uncharacteristically punctuated by the sheer bulk, scale and size of this development. In her view the built form is simply not compatible with the undeveloped adjoining landscape and general character of the locality (Exhibit G). The development is not sympathetic with the environmental characteristics of the land as it bears little association, has few elements in common with the undeveloped rural nature of the locality. She says this disparity is clearly observable from Saltwater Rod as there is simply no evidence that any landscaping will ultimately ensure that built form is not visible from Saltwater Road and not alter the character or visual amenity of Wallabi Point. (Addendum Report 4.4) Exhibit G. She is not satisfied with the detail of the design in particular the final landscaping detail and how the development will comply with the required APZ requirements and the GTA for the RFS.
Ms Bowen is of the opinion that "this random development" is out of place and that this isolated rural site is not suitable for the proposed clinic/ hospital use.
Ms Bowen's is of the opinion that "insufficient information has been submitted to allow a comprehensive assessment of the development's ability to protect the adjoining environmentally sensitive areas", or assess its consistency with the relevant zone objectives.
The development is sited in the south-eastern corner of the lot where the land has been cleared of its natural vegetation. The design places the seven buildings in an area of 8.64 ha surrounded by an Asset Protection Zone (APZ) in accordance with the general terms of approval issued by the Rural Fire Service (RFS) by letter dated 19 February 2014.
The Asset Protection Zones (APZs) required by the RFS, as detailed on the site plan (Exhibit E), are necessarily arduous because they are "...are intended to provide sufficient space and maintain reduced full loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building." The condition requires an APZ of:
...35 m from the northern and eastern boundaries, 45 m from the southern boundary, 50 m from the western elevations of the buildings and 60 m from the south western boundary shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of Planning for Bushfire Protection 2006 and the NSW Rural Fire Service's document 'Standards for asset protection zones.'
When read with the relevant provisions of the abovementioned documents the RFS condition requires the applicant to clear the APZ as an Inner Protection Area (IPA) and provide a tree canopy of less than 15% at least 2 m from any part of the roofline of a dwelling, garden beds of flammable shrubs are not to be located under trees and should be no closer than 10 m from an exposed window or door. Trees should have lower limbs removed up to a height of 2 m above the ground (p 51 Appendix 2, Exhibit 6).
Additionally, the RFS require the applicant to provide safe operational access for emergency vehicles by providing internal pathway networks compliant with s 4.1.3(3) fire trails of the Rural Fire Service publication - Planning for Bushfire Protection 2006.
The plans before the Court indicate a path network for emergency vehicles but the detail of how the applicant will provide compliant access is unclear. Mr Fish accepted that an internal path 6 m wide with a 20 m long x 3 m wide turning bay every 200 m might satisfy compliance. However, the applicant's advocate advised in final submissions that his client had not yet settled the detail for the emergency vehicle paths and was considering alternative solutions to meet the criteria. By the conclusion of the hearing it was clear that there was simply no final detail of the landscaping for the APZ area and, therefore, no opportunity for the Court to determine whether the RFS requirements could be achieved by this development on the site.
The concept plan produced by Mr Fish relies upon a 20% tree canopy. As he accepted in cross-examination, that percentage is not compliant with the RFS requirement. In response the applicant submits the landscape detail can be provided as a condition of consent (as per condition 8 of the RFS's GTA at Folio 234 Exhibit 5). While that may be acceptable course in some cases it is unacceptable in circumstances where the development's permissibility requires an assessment of the development's consistency with zone objectives that seek to preserve the established rural character, visual amenity and scenic qualities of the locality in the Rural 1(a) Zone.
The lack of detail and uncertainly about the locations and widths of internal pathways and turning bays and the proposed landscaping within the APZ is a fundamental flaw in this application. It makes it impossible for the Court to accurately assess whether the visual impact of this development is consistent with being "sympathetic with the environmental characteristics of the land or appropriate in a rural location." (The relevant zone objective of the 1(a) Rural General Zone under LEP 1995 which applies by dint of the savings provision in cl 1.8A of LEP 2010).
The fact is that the southern boundary of this site adjoins the Saltwater National Park and a small creek (Saltwater Gully) drains from the site into the adjoining Saltwater National Park. The development in my assessment can only be sympathetic with these environmental characteristics of the land if it is appropriately landscaped. As it stands, I have no idea how much of the land needs to be cleared to provide for the APZ's and what landscaping is proposed. In my assessment, the integration of the built form so that it is appropriate in this rural location and sympathetic with the environmental characteristics of the land is dependant upon appropriate screening by the dense vegetation along the frontage of the property and around the built form. Accordingly, I need to know and assess that detail in order to from a view as to whether the development is consistent with the relevant zone objectives and thereby permissible.
The Office of Environmental Heritage after assessing the amended application raises issues with the visual impact of the proposal from Saltwater Headland in Saltwater National Park and elevated areas of Hallidays Point (at folio 217 Exhibit 1). In particular, the appropriateness of the visual amenity of the development at night - when light penetrates through the existing Norfolk Island pine trees.
Additionally, the Department raises concern about the impact of the development on the declared Aboriginal Place some 500 m from the site. With the dedication of the Khappinghat Nature Reserve and Saltwater National Park to "protect sensitive coastal beach and wetlands, dry and wet heath and estuary and forest communities on the Mid North Coast of NSW' and the listing of the Saltwater Aboriginal Place under s 84 of the National Parks and Wildlife Act 1974"- recognising Saltwater and its special significance with respect to Aboriginal culture - it is difficult to accept Mr Fish's evidence that the visual impact of the development from the National Park is not a relevant concern because no one can access that area easily "...unless bush bashing". The applicant has provided no assessment of the visual impact of the development from that important vantage point. As a consequence, I am not able to assess whether the development is consistent with the identified zone objectives.
I also find it difficult to accept as adequate (despite the Council's acceptance) Mr Fish's two-page Aboriginal Cultural Heritage Due Diligence Report dated 17/3/2014 in satisfaction of the requirement for an assessment of the impact of the development. It does not include a systematic archaeological survey over the proposed development site (in consultation with a qualified Archaeologist endorsed by, and in conjunction with, the Purfleet - Taree Local Aboriginal Land Council) as recommended by the office of Environment and Heritage in its letter dated 28/1/2014.
The Aboriginal cultural significance of the site and area was the subject of the evidence of Mr Leon, Mr Clarke and Mr Worboys. Both men recalled the site as a meeting place for Aboriginal people from about 1933. The report prepared by the applicant in this case (Exhibit C), together with an earlier report at cl 4.6.1 of Exhibit F, which relies on AHIMS, web service searches. This material falls short of the recommended site investigation suggested by the National Parks and Wildlife Service as proposed for this application (Exhibit Folio 215 at Folio 217 Exhibit 5). While the parties' experts may consider the report with regard to Aboriginal Cultural Heritage to be appropriate due diligence I cannot accept that it is sufficient. There is no evidence of specific assessment of the site as was recommended in consultation with relevant Aboriginal community members.
Conclusion
The Court accepts that the term "consistent" in the LEP has its ordinary and natural meaning. It means "compatible or "capable of existing together in harmony": Dem Gillespies v Warringah Council [2002] NSWLEC224; [2002] 124 LGERA 147.
With that definition in mind, I have decided after a consideration of the evidence (as discussed above) and the parties' submissions that the development must be refused because it is not consistent with the relevant objectives in the 1(a) Rural General Zone in particular objectives (a) and (d), and the relevant General Zone objective in cl12 (c). Therefore, the development is not permissible in the zone.
In coming to my decision I accept the evidence of the Council's planner Ms Bowen. I find her evidence to be a comprehensive and objective assessment of the application against the relevant controls. She has considered the impacts of the development from all relevant vantage points not just the Saltwater Road frontage. Mr Fish did not undertake as thorough an assessment of the impacts of the development from the National Park or the residential headland.
Having had the opportunity to view the site and its locality I share Ms Bowen's concerns about the deficiencies with the application. I accept her planning assessment that without appropriate landscaping the development has the potential to be highly visible (particularly at night) from Saltwater Road and the residential headland area and the National Park and Nature Reserve. Given this potential it is imperative that a final landscape design is available at the time of assessment to ensure that the development is consistent with the relevant zone objectives including whether it is appropriate in a rural location and protects or conserves the environmental values of the land and visual amenity including landscape and scenic quality and tourism values.
In this case the applicant has not provided a final landscaping design which identifies the clearance areas to accommodate the required APZ's or an ability to comply with the performance criteria for bushfire evacuation as discussed in (Exhibit 6) - including the design and widths of the fire trails enabling safe and ready access for fire fighting vehicles in the event of a bush fire (Ch4 in Exhibit 6). Consequently, I agree with Ms Bowen's evidence that it is impossible to assess the application as being consistent with the relevant zone objective for this site without the abovementioned information.
After a consideration of the evidence I appreciate the description of the development (in the submission from the Office of Environment and Heritage) as having the potential to be a "beacon" in the night sky. As the Court's view confirmed the adjoining land is predominately wide-open rural spaces with some farmhouses, vast areas of National Park, bushland and the coastline. In my assessment of the evidence the development of several buildings in a horseshoe shape over the site with large cleared paths around them to accommodate necessary APZ's and some landscaping is in my assessment out of character in the locality. The proposal is as Ms Bowen states in her evidence a "random development" which is inappropriate in a rural location.
Accordingly, after an assessment of merits of the proposal as required under s79C of the Act the Court orders:
1. Appeal dismissed.
2. Development Application 673/2008 for the construction of a Bio-clinic Facility at Lot 2, DP 1148343, Saltwater Road, Wallabi Point is refused.
3. The exhibits are returned except for exhibit D.
Susan Dixon
Commissioner of the Court
Decision last updated: 30 June 2014
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