Mac Services Group v Mid-Western Regional Council - [2014] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation: Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072
Hearing dates: 30, 31 July 2013, 1 and 2 August and 6, 7, 8, 25, 26, 27, 28 November and 5 December 2013
Decision date: 29 April 2014
Jurisdiction: Class 1
Before: Dixon C
Decision:
1 Appeal upheld.
2. Development application no DA 0217/2012 for the construction of a workers accommodation facility on land at 2 Black Lead Lane, Gulgong including the construction of 400 rooms, internal roads, landscaping, drainage works and associated amenities such as a convention centre, administration building, gazebos, laundries and indoor and outdoor recreational facilities is approved subject to the Council's conditions in Exhibit 34 as amended in accordance with [277].
3.The Council is directed to file with the Court and serve upon the applicant a copy of the amended conditions of consent in an electronic form within 7 days.
4.The Exhibits will be returned after receipt of the amended conditions of consent apart from Exhibits 1 and A.

Catchwords: Development appeal - workers accommodation facility to accommodate the FIFO/DIDO mining workforce - permissibility - the capacity of the town's sewerage and water services to accommodate the development - economic and social impacts of the development on the town
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy no 55 (Remediation of Land)
State Environmental Planning Policy (State and Regional Development) 2011
State Environmental Planning Policy (Rural lands) 2008
State Environmental Planning Policy (Infrastructure) 2007
Mid-Western Regional Local Environmental Plan 2012
Mid-Western Regional Interim Local Environmental Plan 2008
Temporary Workers Accommodation Development Control Plan
Water Management Act 2000
Local Government Act 1993
Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107;(2011) 180 LGERA 343
Architects Haywood and Bakker v North Sydney Council [2000] NSWLEC 138
Blackmore Design Group Pty Ltd v North Sydney Council (2001) NSWLEC 279
Burwood Council v P D Mayoh Pty Ltd (1996) LGERA 268
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Gardner v Regina [2003] NSW CCA 199
Graincorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171
Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41
Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2003) 144 LGERA 33
Category: Principal judgment
Parties:
Mac Services Group (Applicant)
Mid-Western Regional Council (Respondent)
Representation:
Mr C McEwen SC
with Mr M Staunton (Applicant)

Ms S Duggan SC (Respondent)
Sparke Helmore (Applicant)
Local Government Legal (Respondent)

File Number(s): 11190 of 2012

Judgment

Introduction

The applicant, Mac Services Group (the Mac), seeks approval to construct a 400 room workers' accommodation facility on rural land at 2 Black Lead Lane, Gulgong (the site). The development is to service and accommodate the fly in/fly out or drive in/drive out (FIFO/DIDO) workers contracted to the surrounding mines in the area.

As the project has a capital investment value of $26 million, the local consent authority, the Mid-Western Regional Council (the Council), referred the application to the Western Joint Regional Planning Panel (the JRPP) for determination in accordance with cl 20 of State Environmental Planning Policy (State and Regional Development) 2011 and Schedule 4A of the Environmental Planning and Assessment Act 1979 (NSW) (The EPA Act). The Council also provided the JRPP with its planning assessment report in respect of the development dated 11 May 2012 prepared by the Council's Manager, Statutory Planning, Mr Bruce and, legal advice in relation to the permissibility of the use. Both the planning assessment and legal advice support a refusal of the development.

On 10 October 2012 the JRPP resolved to refuse the application (DA 217/2012) having determined that the development is for a prohibited use.

On 28 November 2012 the Mac filed this appeal with the Court pursuant to s 97(1) of the EPA Act and served it on the Council on 3 December 2012. The Council sent to the Mac its notice of determination refusing the application on 5 December 2012.

The Council has raised 12 contentions in this appeal. The first relates to the permissibility of the development. Before I can deal with that contention or any other for that matter it is necessary to explain the proposal and its context. I have taken that detail principally from the Council's statement of facts and contentions dated 16 May 2013 (Exhibit 1).

The Site and locality

Gulgong is located approximately 28 km north of Mudgee and 22 km south west of Ulan. It is an historic mining town.

The development site is located on the outskirts of the town, about 1.5km north east of Gulgong. It is rural land and comprised of Lots 346, 348, 350 and 467 in DP 755434. The street address is 2 Black Lead Lane, Gulgong. However, access to the site is via Cope Road, which is the main road to Ulan.

The Gulgong landfill is located to the north of the site further along Cope Road toward Ulan. Bushland adjoins the northern boundary of the site. The surrounding land uses includes livestock and grazing, lifestyle properties and working farms. An exotic bird breeding business is operated on the adjoining land.

Mr Kreuzen owns the business and the adjoining land. He is an objector to this application.

At the time of the hearing the site was being used for cattle grazing and apart from some existing farm dams, paddock fencing and small cattle yards, the site contains no other improvements.

The new residential release area of Gulgong (identified in the Council's Strategy) is located on the other side of town towards Mudgee. So too is the Grimshaw Lane proposal which is referred to in the evidence and remains pending before the Council.

There are three coalmines operating in close proximity to Ulan; Ulan Coal Mine, Moolarben Coal Mine and Wilpinjong Coal Mine. There are also a number of other coalmines currently carrying out exploration or preparing Environmental Assessments in the area.

Since the lodgment of this application on 19 December 2011 the Council has granted a 20-year approval for the construction of a 140 bed Temporary workers' accommodation (TWA) in Main Street, Ulan on 22 February 2012 (Exhibit 27) and, a two year approval for a 300-bed TWA complex at Turill on 22 March 2013 (Exhibit 26). The Turill TWA relates to the commencement of the construction phase stage 2 of the Moolarben Coal Project.

Amendments to the original proposal

The application has been supplemented and amended during the hearing in response to the experts' evidence and the objectors' concerns. This has reduced the issues in dispute.

For example, the Council's concern about the visual impact of the development when viewed from Cope Road has been resolved by an amended landscape plan prepared by Nicholas Bray Landscape Architects (revision H), (Exhibit 22). Similarly, the storm water drainage issues raised by contention 9 and by Mr Kreuzen are resolved by the revised storm water/drainage plan prepared by Robert Bird Group (SKU-01 dated 5 August 2013). The Council's conditions and the applicant's proposed plan of management have been reviewed and amended to incorporate many of the recommendations of the parties' social planners. The applicant's agreement to contribute financially to community health services is responsive to the objectors' concerns about the Mac's integration with the local community and its occupants placing extra demands on the town's existing health services.

Where the experts have concluded that there is inadequate information or there has been insufficient investigation to enable a conclusive opinion about critical issues - such as the capacity of the water and sewerage infrastructure in Gulgong to accommodate the Mac - the Court has granted an adjournment of the proceedings to allow the experts the opportunity to interrogate any relevant historical data or carry out the necessary modelling or sample testing. The applicant has agreed to pay for this additional work and any associated legal costs in respect of the amended plans.

Quite properly, the Council has not opposed this course in order to ensure that the Court is fully informed about matters that the Council maintains are a basis for the refusal of this application.

The additional evidence has proved useful in facilitating an agreement between the experts that the development will not detrimentally affect the water pressure within the existing network and that the Mac development will generate a peak daily rate demand of 0.212 ML/d (Exhibit 24). The experts have also agreed, following the investigation of the sewerage treatment plant that the Gulgong plant has the capacity to accommodate the Mac development provided certain works are carried out. The timing of those works and who should pay remain at issue.

Having regard to the above, it is clear that the proposal before the Court is different to that originally assessed by the Council and, ultimately refused by the JRPP. It is also the case that the expert evidence before the Court is significantly more than was available to the Council or the JRPP when they assessed the application.

The proposal the subject of this appeal

The proposal is described in the Class 1 appeal documentation and the plans in (Exhibits A, B, C) as amended by the new landscape plan in (Exhibit 22), the revised Storm water Drainage plan prepared by Robert Bird Group (SKU -01 dated 5 August 2013) and the Council's conditions.

The design incorporates two accommodation areas to the north and south of central facilities. The car parking is proposed in clusters surrounding the accommodation and the central facilitates.

The following works are part of the application:

On site preparation work;

Construction of an internal road system and associated parking;

Earthworks;

Associated landscaping and outdoor open space areas;

Construction of workers accommodation facility comprising 400 rooms;

Ancillary amenities including central facilities building, convention centre, administration building, shed, gazebo, laundries and indoor and outdoor recreation facilities including ancillary gymnasium, lap pool and multipurpose court;

Construction and provision of utility services and drainage work;

Entry sign.

According to the applicant, each room comprises a single bedroom with an ensuite bathroom. The rooms are not self-contained in that they do not have kitchens or laundry facilities. There are between three and six rooms within building modules or "pods" and, each building module has a dedicated verandah or patio area. There are a large number of common facilities to service the occupants of the facilities.

The applicant submits the purpose of the development is to provide residential accommodation for those persons working in and servicing the mines in the local area. Whilst the DA does not provide specific information about the occupation of each of the rooms, it is made plain through the evidence that the workforce accommodated in the accommodation will be "fly in/fly out" or "drive in/drive out". The period of time a worker will reside in a particular room (as distinct from the facility) will generally be in the order of a number of days or weeks on each occasion, followed by a departure and return some days or weeks later, perhaps over a period of years. Whilst one worker vacates a room, another worker may then occupy it when the first worker is back at his or her own home.

The provision of the accommodation facility is expected to be for a period in the order of 20 years. Each "stay" by a worker at the facility will generally be for number of days or weeks, and the period of time that any individual worker will utilize accommodation at the facility will in aggregate vary between months and years dependent upon the terms of their work contract.

The applicant contends that the accommodation provided by the facility to the workers is of a residential character because it will provide accommodation and living facilities for the mine workers for considerable periods of time, in aggregate, over their working life at the mine for whatever time they are contracted to work. Whilst ever a worker is working, the applicant contends that the development will provide that worker's permanent accommodation. The facility is said to provide long-term accommodation.

There is nothing to prevent workers from staying in the accommodation whilst under contract to a mine or during the period when they are not working. However, the development is not open to visitors and all occupants are required to abide by a code of conduct whilst under contact to stay at the facility.

The Hearing

The Council arranged for the hearing of this appeal to commence with a view in Gulgong so that the Court could see the historic town, the development site and the adjoining property owned by Mr Kreuzen.

Following the view the Court reconvened in the town's RSL building to receive the evidence of fifteen local residents and community representatives.

The hearing was completed in Court at Sydney.

Expert Evidence

Individual statements, joint reports and concurrent oral evidence was received from the following experts in Court:

Mr Bruce (Council) and Mr Strudwick (applicant) in respect of town planning matters.

Dr Martens (Council) and Mr Lucas (applicant) and Mr Law (applicant) in relation to water and sewerage issues.

Mr Linder (Council) in relation to engineering issues and Mr Murphy (applicant) and Mr Bruce (Council) in relation to economic issues.

Mr Lette (applicant) and Dr Alison Ziller (Council) in relation to social planning issues.

Ms Cam (Council) in relation to Council's finances and expenditure.

Statutory Controls

According to the Council's statement, the following planning controls are relevant to the Court's assessment of this application:

Mid -Western Regional Interim Local Environmental Plan 2008 (LEP 2008)

Mid -Western Regional Local Environmental Plan 2012 (LEP 2012)

Temporary Workers Accommodation Development Control Plan (DCP) (10 February 2012)

State Environmental Planning Policy (Infrastructure) 2007

Clause 101 of the SEPP applies as the development fronts a main road (Cope Road). The development is also categorized as a traffic generating development in accordance with Schedule 3.

However, the Roads and Maritime Services (RMS) has provided its concurrence to the development under cl105 of the SEPP and approval subject to a number of conditions that are incorporated into the consent including the upgrade of the access and, the provision of 450 car spaces.

State Environmental Planning Policy (Rural lands) 2008

- Clause 7 Rural planning Principles

State Environmental Planning Policy No 55 (Remediation of Land - Clause 7

Mid -Western Regional Comprehensive Land Use Strategy

The Contentions

Contention 1 - permissibility

Mid -Western Regional Interim Local Environmental Plan 2008 (LEP 2008)

On 19 December 2008, when the applicant lodged its development application with the Council, the site was located within the Agriculture zone under the Mid -Western Regional Interim Local Environmental Plan 2008 (LEP 2008).

Subsequent to lodgment and before the application was determined, LEP 2008 was repealed. However, by operation of the savings provision in cl1.8A of the current plan Mid-Western Regional Local Environmental Plan 2012 (LEP 2012) the repealed plan remains the relevant plan against which this application must be assessed.

The Council submits that the Mac development falls within the definition of "tourist and visitor accommodation" in LEP 2008. Development for the purpose of "tourist and visitor accommodation" is prohibited on land within the Agriculture zone under LEP 2008.

Therefore, the first contention is that the Mac development is prohibited on the site.

Contention 2 (a)

In the event that the Court does not accept that the development is prohibited, the Council submits that the development is contrary to the aims in cl 2 sub clauses (c) and (i), of LEP 2008

Contention 2 (b)

Mid -Western Comprehensive land Use Strategy - (The Strategy)

A further contention raised by the Council is that the development is contrary to the Strategy because it does not promote the orderly and efficient use of the land.

Contention 2(c)

It is also contended that the location of this residential style development is not compatible with the Strategy and its Gulgong Town Structure Plan because the Plan does not envisage the expansion of Gulgong in this location.

Contention 3 (a)

Clause 12 (2) of LEP 2008 provides that the consent authority must have regard to the objectives for development in a zone when determining a development application.

The third contention raised by the Council is that the development is inconsistent with three objectives of the Agriculture zone.

Contentions 4 and 5

Mid -Western Regional Local Environmental Plan 2012 (LEP 2012)

The LEP 2012 was gazetted on 10 August 2012 and, despite the effect of the savings clause in cl1.8A, it is a relevant consideration in my assessment of this application under s79C of the EPA Act and the public interest.

The development site is located within the RU1 Primary Production zone under LEP 2012 and cl 6.11 defines the proposed use as "temporary workers' accommodation".

Clause 6.11 provides:

6.11 Temporary workers'accommodation

(1) The objectives of this clause are as follows:

(a) to enable development for temporary workers' accommodation if there is a demonstrated need to accommodate employees due to the nature of the work or the location of the land on which that work is carried out,

(b) to ensure that temporary workers' accommodation is appropriately located,

(c) to ensure that the erection of temporary workers' accommodation is not likely to have a detrimental impact on the future use of the land or to conflict with an existing land use,

(d) to minimise the impact of temporary workers' accommodation on local roads and infrastructure.

(2) Development consent must not be granted to development for the purposes of temporary workers' accommodation unless the consent authority is satisfied of the following:

(a) the development is to be located:

(i) if the development relates to a mine-within 5 kilometres of the relevant mining lease under the Mining Act 1992, or

(ii) in any other case-within 5 kilometres of the large-scale infrastructure in which persons are to be employed,

(b) there is a need to provide temporary workers' accommodation due either to the large-scale infrastructure or because of the remote or isolated location of the land on which the large-scale infrastructure is being carried out,

(c) the development will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument,

(d) water reticulation systems and sewerage systems will be provided to adequately meet the requirements of the development,

(e) when the development is no longer in use, the land will, as far as practicable, be restored to the condition in which it was before the commencement of the development.

(3) In this clause:

temporary workers' accommodation means any habitable buildings and associated amenities erected on a temporary basis for the purpose of providing a place of temporary accommodation for persons employed to carry out large-scale infrastructure, including development for the purposes of an extractive industry, mining, renewable energy or an electricity transmission or distribution network.

The parties agree that the development site is located in excess of 5 km from a major infrastructure project site and therefore it does not comply with the locational requirement in cl 6.11(2)(a).

The Council contends that the locational requirement in cl 6.11(2)(a) operates as a prohibition. It is not development standard. Therefore, the proposed development would be prohibited under cl 6.11(2)(a) had the application not been saved by cl 1.8A. It submits that the Court should refuse the development on that basis.

The applicant submits that cl 6.11(2)(a) is a development standard as defined in s 4 of the EPA Act. In this case it says the Court should accept Mr Strudwick's evidence that the development is consistent with the objectives of the standard and the zone despite its numerical noncompliance. Therefore, it submits that the Court should exercise flexibility and determine that compliance with the standard is unreasonable and unnecessary in this case based on the requirements for variation of the standard as specified in cl 4.6. Despite this primary position, the applicant also submitted that even if the clause was a prohibition, the savings provision in cl1.8A would preclude it from operating to prohibit this development.

Ultimately, the applicant agreed with the Council that the Court should consider the whole of LEP 2012 as a relevant consideration under s 79C in its assessment of this development including the fact that the use would be prohibited but for the operation of cl 1.8A (RWS 26/11/2013 at [33]). In undertaking that assessment the Council invited the Court to also consider whether an approval of the Mac development (by virtue of the savings provision) would be "inconsistent with the expressed future planning objectives for the area and if it is then the application should be rejected." Architects Haywood and Bakker v North Sydney Council [2000] NSWLEC 138

What weight should be given to LEP 2012?

The Council submits that I am bound to have regard to LEP 2012 under s 79C(1)(a)(i) (RWS at [19]- [29]) and as a matter of public interest for the reasons stated by the Court in Maygood Australia Pty Ltd v Willoughby City Council(2) [2013] NSWLEC 142 per Pepper J. The applicant agrees but adds that I am obliged to follow Maygood (No 2) because it is the law of a Superior Court (AWS [50]).

In dealing with an identical savings provision in Maygood (2) the Court held at [8] that the current plan remains a relevant consideration under s 79C and the public interest notwithstanding the terms of the savings provision in cl 1.8A (RWS at [20]): Terrace Tower Holding Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 210.

In my assessment of this application under s 79C and the public interest I propose to deal with LEP 2012 on the basis that it is imminent and certain but that any operative prohibition is set aside by cl 1.8A. I also intend to consider whether the proposed development is consistent with the aims and objectives of LEP 2012: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 at [21 to 29] and [30] (AWS 27/11/2013 at [56]-72B])

Hierarchy of decision makers

Before I deal further with the contentions it is necessary to deal with the parties' submissions that I am "bound" or "obliged" to follow the decision of the Court in Maygood (2) to consider the provisions of the LEP 2012 in these proceedings under s 79C.

Ultimately, that submission is not fundamental to my determination as I do intend to give appropriate consideration to the new instrument. However, for reasons I will shortly explain I do not accept that I am bound or obliged by the Maygood (2) decision as a matter of principle, although I would, of course, pay due deference to that decision in accordance with the usual principles of comity.

The fundamental flaw with the submission is that it imports into the Land and Environment Court Act 1979 (the Act) a hierarchy of decision makers. In fact, the Act does not establish a hierarchy such that as a general proposition the Commissioners' are bound by the determination of a single judge sitting in the same class of proceedings (unless on a preliminary question in the same matter). Both exercise the jurisdiction of the Court when determining (relevantly) a Class 1 appeal.

Obviously, in the case of appeal under s 56A, the Commissioner determining the matter from which the appeal is brought is bound by the decision of the Judge hearing the appeal on remitter unless the Judge otherwise disposes of the appeal under s 56A(2).

The absence of any hierarchy of the kind to put an obligation on Commissioners generally to follow decisions of Judges emerges from a consideration of the legislation.

Section 6 (1) provides:

Single Judge to constitute the Court

(1) All proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act, be heard and disposed of before a Judge, who shall constitute the Court.

(2) Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before one or more Commissioners or other officers of the Court.

These are functions to be exercised in the name of the Court by either Judge or Commissioner.

Section 36(2) provides:

Delegation to Commissioners

(1) Where proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction (other than proceedings that are being dealt with under section 34A or 40), the Chief Judge:

(a) except as provided by paragraph (b) or subsection (1B), may, of the Chief Judge's own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners, and

(b) shall, where the proceedings are proceedings:

(i) arising under the Aboriginal Land Rights Act 1983 , and

(ii) of a kind specified in Schedule 2,

direct that the proceedings be heard and disposed of by a Commissioner.

(1A) The Governor may, by regulation, amend Schedule 2 by:

(a) adding thereto any matter,

(b) altering any matter therein, or

(c) omitting any matter therefrom,

or may, by regulation, omit the Schedule and insert instead a new Schedule.

(1B) The Chief Judge may not direct under this section that proceedings under section 29, 30 or 31 of the Access to Neighbouring Land Act 2000 are to be heard and disposed of by one or more Commissioners.

(2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section).

(3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court.

(4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners:

(a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings-the Senior Commissioner shall preside at the hearing of the proceedings,

(b) if the Senior Commissioner is not one of those Commissioners-one of those Commissioners directed to do so by the Chief Judge shall preside at the hearing, and

(c) if the Commissioners are divided in opinion as to the decision to be made on any question:

(i) if there is a majority of the one opinion-the question shall be decided according to the opinion of the majority, or

(ii) in any other case-the question shall be decided according to the opinion of the Commissioner presiding.

(5) Proceedings that are before a Commissioner under section 34, or under this section, may be referred or removed for hearing and determination by a Judge in the same way as proceedings before an associate Judge may be referred or removed for hearing and determination by a Judge in the Supreme Court.

(6) The power of a Commissioner to refer proceedings pursuant to subsection (5) is subject to any contrary order of the Chief Judge.

Where proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction the Chief Judge can direct that the proceedings be heard and disposed of by one or more Commissioners: s 36(1)(a).

The decision of the Commissioner is deemed to be a decision of the Court: s 36(3).

Having regard to the above provisions, there is no hierarchy under the Act which supports the proposition that a Commissioner is bound to follow the decision for a single judge in respect of an appeal under s 56A of the Act unless it is that matter on remitter (as noted earlier).

The respondent has referred to two decisions in support of its submission. The first is the decision of the Court of appeal in Burwood Council v P.D Mayoh Pty Ltd (1996) LGERA 268. It deals with the doctrine of stare decisis and the principle that the superior Court binds a lower Court. The LEC Act does not create an internal hierarchy of decision makers and, therefore, the case does not support the respondent's submission that I am bound to follow a Judge in this Court.

Although I appreciate that s 56A does create a hierarchy in the sense that the Commissioner on remitter is bound to follow the decision of the Judge.

Section 56A states:

56A Class 1, 2 and 3 proceedings-appeals to the Court against decisions of Commissioners

(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall:

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b) make such other order in relation to the appeal as seems fit.

(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

The second decision to which I have been referred is Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at paras [36 - 38]:

The principle of stare decisis requires a court lower in the particular judicial hierarchy to follow a decision of a court higher in that hierarchy only where that higher court is exercising appellant jurisdiction.

Again the decision relies on the Judge exercising an appellate function. As noted above s 56A is an appellate function in respect of the particular matter and the Commissioner from whom the decision is appealed is bound but not any other Commissioner.

Although I accept the case supports the proposition that judicial comity ought to apply and the judgment ought to be followed unless it is plainly wrong, it remains open, in this Court for a Commissioner to distinguish a decision by another member of the Court (whether a Judge or a Commissioner) when that decision might appear to be on point.

If another member of the Court considers that a decision, apparently or actually on point, by another member of the Court is incorrect, there is no requirement to follow the earlier decision but proper reasons for not doing so should be given as a matter of comity: (see for example Bignold J in Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2003) 144 LGERA 33 expressly declining to follow the decision of Pain J in Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406 on a matter of interpretation in a merit appeal).

Contention 4 and 5 in this case rely upon the application of the provisions in LEP 2012.

Contentions 6 and 7

Temporary Workers Accommodation DCP (DCP)

The TWA DCP was adopted by the Council on 17 February 2012 and is the companion to LEP 2008. It is a relevant consideration under s 79C of the Act in this appeal.

It also contains locational requirements similar to those in cl 6.11 of LEP 2012. The Council contends the Mac development does not comply with these DCP requirements.

The evidence is that the proposed TWA site is within 1.5km from the town of Gulgong. It is 20km from the Ulan mines or about a 17 to 20 minutes drive. The Council contends that the TWA is remote from major infrastructure project sites and, therefore, contrary to cl 7.1 of the DCP.

It also contends that the applicant demonstrated that the Gulgong reticulated water and sewerage systems can support the additional demand of the MAC and existing demand and other identified demands in the DCP and in cl 7.2.In short its location cannot be justified under the terms of the DCP.

The applicant contends that it is not a remote site. Clause 7.2 of the DCP allows a TWA in the proposed location on the edge of the urban zone in circumstances where it otherwise meets the requirements and relevant objectives of the DCP.

Contentions 8, 9, 10, 11 and 12

The Council also raises contentions that the development generates unacceptable impacts in respect of the town's water and sewerage services, the social cohesion of Gulgong and adjoining land use.

It also asserts the development is not in the public interest.

Objectors' concerns

There is significant local objection to this development. The Council has received over 300 objections to the Mac development and only four submissions of support. Copies of the submissions are included in the Council's bundle of documents. I have read those submissions (Exhibit 2).

The objectors' concerns are summarized in the Council's Statement of Facts and Contentions under contentions headed - the public interest and social impact. Their concerns include:

(1) The development will result in a concentration of a large segment of nonresident mine workforce in one place close to an established residential area.

(2) The development will impose a significant gender imbalance on the locality with associated adverse social impact.

(3) The development will impose significant experience of income inequality on the local area with associated adverse social impacts.

(4) The development will make no effective contribution to social infrastructure in the locality but at the same time will place demands on:

(i) Publicly funded health and other services as well as

(ii) Community services and activities reliant on a strong volunteer base.

(5) The development will reduce opportunities for the locality to benefit economically from the growth of mining in the region, and for its social fabric and social infrastructure to be strengthened as a result.

Many of those who lodged written submissions objecting to the Mac also attended the view at the outset of the hearing and later at the Gulgong RSL.

Fifteen of the objectors addressed the Court at the RSL. Many of them raised concerns about the impact of this style of development on the social cohesion of the Gulgong community. In fact it would be fair to say that most of the objectors dislike TWA style developments generally.

Another underlying concern expressed in the written and oral evidence was a fear that an approval of this Mac development would result in a loss of mining jobs for the residents of Gulgong especially the youth of the town. Mr Kreuzen aptly expressed this concern when he told the Court that people are concerned about the loss of their mining jobs rather than the FIFO/DIDO workers "chatting up their girlfriends in the pub".

In my assessment the concerns expressed by the objectors about the strain on the town's health and community services, local housing pressures, increased traffic and pressures on roads, loss in house values, loss of local mining employment opportunities especially for the youth of the town, and the loss of social cohesion in Gulgong are all adverse impacts that are representative of the volatile mining industry generally and are not specific to this TWA.

The reality is that the Court cannot stop the development of TWA's within the LGA in circumstances when the current planning controls anticipate and facilitate this style of development. The majority of the experts agree that a FIFI/DIDO workforce is inevitable in the LGA. It is also agreed that they generally arrive on mass in response to an upswing in mining activity and need to be accommodated proximate to the mines. According to the most recent studies contained in the Manidis report and the economic evidence of Mr Murphy, these FIFI//DIDO workers cannot and should not be accommodated in existing or projected conventional housing or hotel accommodation because it displaces lower socio-economic permanent residents and precludes the accommodation of tourists. There is no dispute that Gulgong boasts a significant tourism industry. Its annual ceramic and pottery festival is world-renowned and is said to bring hundreds of tourists to the area.

According to the social planning evidence of Mr Lette and the economic evidence of Mr Murphy, the use of tourist accommodation and conventional housing to accommodate an influx of FIFO/DIDO workers in an upswing of mining activity is more detrimental to the town's economy and social fabric than placing them in a purpose built facility such as the Mac.

The objectors who assert that the proposed location is inappropriate must appreciate that the development site is about 15 km closer to Gulgong than the Council's current LEP permits. It is also the case that the relevant planning instrument and DCP (against which I must assess this application) permit a TWA to be located within 1.5km of the urban edge of town. The evidence, which I will explain in due course, is that the Mac development can be connected to local water and sewer and meet the requirements of the DCP. It is, according to the planners, visually acceptable and will have no unacceptable traffic impacts. The RMS has granted its approval to the development, subject to carrying out additional road works that the applicant agrees to undertake.

The concerns expressed about jobs for local miners being taken by Mac FIFO /DIDO workers will occur (if it is to occur) whether the Mac is built 1.5km from town or about 15km further down Cope Road nearer the mine.

The facility will have the capacity to house up to a maximum of 400 of predominately male persons for a period of up to 20 years. Although, the experience at Narrabri demonstrates that the TWA facility is unlikely to operate at full capacity all the time, the mining industry is volatile and the workforce will respond accordingly. However, whatever way you look at the evidence, the town cannot and will not be capable of accommodating an influx of 400 FIFO/DIDO workers when an upturn in mining occurs by offering conventional housing with a lead time for provision of that housing of 1 to 2 years. The evidence is that this TWA will buffer the impacts of that volatility (the mining booms and busts) rather than the conventional residential housing market or tourist accommodation in Gulgong. The economic evidence is that it is better for the town if the Mac rides the vacancy rates of the mining cycles rather than the local housing market.

There is no evidence to support Dr Ziller's concerns or those expressed by the objectors that cashed up FIFO/DIDO males will be roaming the streets and bars of Gulgong harassing women. This fear has not been realized in the Narrabri Mac, which is the closest we have to a likely understanding of the Mac experience. The evidence from the police is that there has been no incident concerning the Mac residents in Narrabri.

Nor is there any evidence to support Dr Ziller's and the objectors' concerns that there will be a "them and us mentality" between the permanent residents of the town and those in the Mac. About 20% of the existing population of Gulgong is employed in the mining industry and according to the Manidis report the residents of Gulgong enjoy a comparatively high level of income. I am not satisfied on the evidence that income inequality within the town will be exacerbated by an approval of this TWA as suggested by Dr Ziller (T6/11 P08 L30). In any event this kind of issue relates to the mining industry generally and in my assessment cannot be attributed to this development being constructed on the outskirts of town.

Based on the evidence of Mr Lette, Mr Strudwick and Mr Hudson (in respect of the Narrabri Mac) I am satisfied that the proposed plan of management will provide the opportunity for proper management of the Mac facility and its occupants. I also accept the applicant's submission that it will be in the interests of the operators of the Mac to ensure that the facility is operated with minimal disturbance to the surrounding community. The DCP anticipates a plan of management and this plan addresses the criteria specified in the DCP. The Council has thought it appropriate to impose similar plans of management on the recent consents for the TWA at Ulan and Moolarben to address behavioral issues. In my view the evidence supports its imposition as a condition in this case.

The applicant has applied for a time limited consent. Therefore, the development will be decommissioned in 20 years. However, the evidence is that during its life the development will have some positive flow on effects for the town as the workers will at times travel into town for goods and services. I accept the evidence in the Urbis report that the Mac strives to integrate with the local community and encourage its residents to access local businesses. The community sponsorship initiatives proposed by the Mac in this application such as sponsoring a local football team is in my assessment a positive community contribution. These types of initiatives appear to have worked well in other Mac facilities as discussed at (Folio 172 Vol 1 Exhibit 2) In my assessment the detailed social impact assessments before the Court including the Urbis peer review report conclude that any adverse impacts from this development can be managed satisfactorily.

While I agree with the Council that the Mac's contribution to the economy, social fabric and infrastructure will be less than that of a permanent resident, these workers are a part of a mining industry workforce and must be accommodated. The evidence is that workplace villages take the pressure off local housing markets and rental prices allowing greater accessibility and sustainable growth of the community. However, I also accept that there is nothing stopping a worker from choosing to relocate his family to the area, having had the opportunity to evaluate the town and local community once he feels his job is secure. One of the objectors who addressed the Court had arrived in Gulgong with her family in that way.

As Dr Ziller conceded, any impact on health services would be similar with or without the Mac (T7/11 P34-35). In Mr Bruce's assessment on 8 February 2013 of the Moolarben TWA, he offers the same conclusion. He reports:

Impact on medical /health services - this is representative of the pressure from mining and not the proposed TWA. The construction workforce for Stage 2, if approved, would have to be housed in the LGA regardless of whether it is at the TWA facility. These impacts are considered by the Department of Planning in their assessment of the mine project.

Based on the above I am satisfied that any health impacts complained of by the objectors are caused by the mining industry and not by the proposed TWA. Irrespective of the cause however, the applicant has in this case offered to enter into a VPA with the Council to provide $20,000 per annum during the operation of the Mac to be applied toward health services. Mr Lette gave evidence that such a contribution was consistent with that accepted by the Minister as an appropriate contribution by the local mining companies to health services (T7/11 P65-67 and P69L17-22). This type of contribution, although termed tokenistic, is still positive.

Similarly, the monetary contributions/levies required by the conditions of consent in accordance with the legislation (subject to the Council's plans) will provide additional funding to the LGA. Such additional funding (subject to allocation) will provide an opportunity to complete the upgrade of essential works to the sewer and water augmentation required irrespective of the Mac development. In addition to providing additional funds, the development will provide legacy infrastructure such as the upgrade of the intersection /and works to the road frontage in Cope Road and cycle ways after the facility is decommissioned. Similarly, the sewer and water capacity will be returned to the town for reallocation. The evidence is that the conventional housing market will develop in accord with market demands and the Strategy provided the necessary sewer and water augmentation works are carried out to accommodate future growth.

Refusing this development, as the objectors ask me to do, will not stop crime in the area, or necessarily increase mining jobs for locals because the evidence is that FIFO/DIDO are an inevitable component of the mining industry workforce. They will come to the locality for work in mining and in larger numbers during an upturn because of the vast coal resources in the locality irrespective of this Mac. There is no evidence to support a finding that a refusal of this development will increase the supply of conventional housing in Gulgong - despite Mr Bruce's desire to that effect. His evidence is inconsistent with the findings of the Manidis report. At best it is likely to move an otherwise acceptable TWA development down the road some 13km, as is evident by the TWA consent recently issued for the Ulan mine by the Council. For the reasons stated, the objectors concerns do not, on the evidence before me, provide any planning basis to refuse this application and I do not believe that it is in the public interest to do so.

I accept the evidence of Mr Lette and Mr Murphy that the Mac provides an opportunity to minimize the negative impacts of a FIFO/DIDO workforce and maximize the positive impacts. The impact I must assess is the likely social and economic impacts on the locality. Dr Ziller's evidence is that the locality is Gulgong. I am satisfied on the evidence that the impacts are acceptable on the evidence for the reasons stated in this judgment.

Contention 11 - Land use conflicts

Contention 11 of the Council's Statement asserts that the proposed development will have a significant impact on the amenity of the adjoining land at 159 Cope Road Gulgong. There are four particulars listed. Particular (d) has been resolved to the satisfaction of the experts.

As already noted Mr Kreuzen is the owner of the adjoining land referred to in contention 11. He operates an exotic bird breeding business from his property and undertakes some rural activities on the land. He has lodged three objections to the Mac development and given oral evidence at the Court's inspection of his site and in Court at Sydney.

He is very concerned about the impact of the adjoining use on the breeding cycle of his birds and the growth of his chicks. In particular, he is worried about the noise from the air-conditioning units at the Mac and vehicle movements in the car park.

The noise and traffic experts do not support his concerns. They have assessed the proposal and concluded that any unacceptable noise from the Mac on the Kreuzen land and noise from the Kreuzen land on the Mac is satisfactorily addressed by the conditions of consent and the plan of management which requires the workers to be transported by bus to and from their work place at the mine. The traffic evidence is that this will reduce the number of vehicle movements into and out of the site and any unsatisfactory noise impact on the Kreuzen use next door.

The Council did not bring any independent expert evidence in respect of the impact of the Mac development on Mr Kreuzen's bird breeding business. Instead it relied on Mr Kreuzen's extensive experience and expertise with birds and breeding. However, without independent and objective expert evidence about the alleged impact on the bird business the Court is unable to refuse the application on the views of Mr Kreuzen alone. Particularly in circumstances where the breeding activities are located some distance from the accommodation and the noise expert Mr Withers say that the proposal complies with the objective noise criteria.

Mr Kreuzen also raised a concern about the original storm water/drainage proposal, in particular its open drains and impact on his water table and dams. In response to that concern the applicant has redesigned its storm water/drainage plan to remove any open channels at issue and ensured that the new design will not adversely impact on the existing water table.

Despite the applicant's efforts to address Mr Kreuzen's concerns, he was adamant that if the development was approved he would need to sell up and relocate his bird breeding business. After hearing his concern about the current use of his property for bird breeding and, an inquiry from the Court about acquisition, the applicant has responded with the offer of a condition to acquire his land. Although I accept the evidence of the experts the imposition of an acquisition condition provides an additional safe guard to ensure the maintenance of compatible land uses.

The offer is to acquire the Kreuzen land (on terms) at the commencement of construction if Mr Kreuzen so indicates. The terms of the offer where put to Mr Kreuzen and he told me that he would prefer the trigger for the acquisition of his property to be when the operative development consent was issued. He also asked for compensation for his business. However, in my assessment the draft condition proposed by the applicant in Exhibit 34 condition 73 is reasonable and appropriate. It requires the applicant to compensate Mr Kreuzen for any disturbance and if the business is disturbed it will be compensated.

I will now deal with the contentions in number order.

Contention 1. - Prohibition

Contention 1 provides as follows:

The proposed development is a prohibited use in the Agriculture zone under the. Mid Western Regional Local Environmental Plan 2008 (MLEP)

Particulars

a. The proposed development would be categorized as Tourist and Visitor Accommodation as defined under MLEP 2008.

b. The site on which the proposed development is to be located is zoned Agriculture under MLEP 2008.

c. The use of Tourist and Visitor Accommodation is a prohibited use in the Agriculture Zone of the MLEP 2008.

"Tourist and visitor accommodation" is defined in the Dictionary to LEP 2008. It provides:

Tourist and Visitor Accommodation means a building or place that provides temporary or short term accommodation on a commercial basis, and includes hotel accommodation, serviced apartments, bed and breakfast accommodation and backpackers; accommodation.

As there is no definition of the terms "temporary", "visitor" or "visit", the usual rules of statutory construction apply and the words are to be given their ordinary meaning. The Macquarie Dictionary defines the terms as follows:

Temporary -not permanent

Visitor -one who visits ....for friendly, business, official or other purposes.

The definition of "tourist and visitor accommodation" includes four types of tourist and visitor accommodation, which are each defined in the Dictionary to the LEP 2008.

The Council submits that the types of accommodation listed in the definition are not exhaustive. The use of the word "includes" is intended to enlarge the definition: Gardner v Regina [2003] NSWCCA 199 at [5] (RWS 15/7/2013 at [12]). Therefore, it submits the Mac development can quite properly be included in that definition.

The Council submits the definition has three elements:

(i) that there is a building or place

(ii) that building or place provides accommodation which is either temporary or short term; and

(iii) the accommodation must be on a commercial basis

It contends that these three elements are satisfied by the Mac development (RWS 15 July 2013 at [15] -[21]). Firstly, development involves a place. Secondly, the place provides accommodation for temporary FIDO/DIDO workers who do not intend to reside there on a permanent or consistent basis. Thirdly, the accommodation is on a commercial basis.

As there is nothing in the definition to require the occupants to be tourists or holidaymakers then the occupants of the Mac can correctly be characterized as visitors in that they will not be permanent. The Council submits that a construction of the provision, which would support the objects of the Act, is appropriate. In this case the LEP intends to prohibit development that does not support the agricultural zone. It includes an objective to protect and maintain land for agriculture and other rural purposes and to preserve the zone's character an amenity. The development does not achieve these objectives.

The Council contends that the applicant's construction of the provision is misplaced as it relies on the intention of the occupants rather than the impact of the use to define the development. (RWS 15 July 2013 at [29]).

With respect to the decision of GraincorpOperations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171 the Council submits the utility of the decision is limited to its own facts and does not dictate principles that determine this case. In addressing the composite phrase "residential building" in Graincorp required an objective assessment of the purpose to which the building was to be put (at [63]-[64]). In order for the use to be characterized as a residential use, it required the building to provide for the settled or habitual abode of the occupant (at [103]). The applicant submits that the Court's determination of that question in Graincorp (RWS at [6]) does not determine whether the accommodation being offered here is short term or temporary. The Court made no findings that the facilities of a TWA did not provide temporary or short term accommodation in Graincorp at [120]-[123] because the notions of the nature of the occupation in terms of permanence were not a relevant indicator of character in Graincorp at [78].

The Council submits that the definition under question requires not the purpose of the building to be determined but rather the nature of the accommodation offered (RWS 1 August 2013 at [4]).

Applicant's submissions

The applicant submits that the proposed development is not "tourist and visitor accommodation" for two reasons:

(b) the accommodation provided at the proposed development is neither temporary nor short-term; and, in any event and, (to the extent it is relevant)

It contends that, properly characterised, the proposed development is not included in either the prohibited or permitted category of development under the zoning table of LEP 2008 and, therefore, it is an innominate use, which is permissible in the Agriculture zone: Egan v Hawkesbury City Council (1993) 79 LGERA 321.

The applicant submits, consistently with the Graincorp [47] to [50] and the principles in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, per Preston CJ, that when characterizing the proper purpose of a development it is necessary to focus on the use made of the buildings within the facility in general (AWS at [19] to [23]). That use must be for a planning purpose. The clear purpose of this development is to provide the residential accommodation for the workers who service the mining industry whilst those workers are at work. Whilst ever a worker is working at the mine the development will provide that worker's abode. There is nothing in the development application to suggest that the worker's stay is limited to being temporary or short term. The facility provides long-term accommodation although it is to be decommissioned in 20 years. As earlier recorded, there is nothing to prevent the worker staying at the accommodation provided while not undertaking mining duties.

The essential defining component of the "tourist and visitor accommodation" definition is that the accommodation must be temporary or short term. Each of the examples in the definition of "tourist and visitor accommodation" are separately defined in LEP 2008 and the respective definitions each incorporate by specific reference the definition of "tourist and visitor accommodation". The applicant submits that this confirms that an essential element of the use of "tourist and visitor accommodation" is that the accommodation be temporary or short term (and provided on a commercial basis). The applicant contends in this case the TWA development proposed is not temporary or short term but rather is long term permanent accommodation for the workers who service the mine albeit there may be periods where the worker will leave the proposed development. A lengthy stay punctuated by short periods of absence will be the typical method of use and the purpose of the accommodation.

The definition refers to a "building or place that provides temporary or short term accommodation..." it does not reference the individual rooms within the facility or the intention or habits of the individual user. The commercial basis upon which the accommodation is provided to the mining company is not fixed with regard to rosters or an obligation to vacate a room during a work break. There is no requirement for an occupant to stay temporarily or short term. The facility will be there for 20 years - it will provide permanent residential accommodation that is not short term. Such a period cannot be described, as temporary or short term because the use proposed is long term "workforce accommodation facility".

The applicant says it is incorrect to place significance on the discontinuity of occupation of particular rooms in determining whether the accommodation is temporary because that places the focus on the individual worker's use of the room rather then the use of the buildings in the facility: Graincorp at [50].

The applicant submits that if the Court accepts that the development cannot be characterized as temporary or short term accommodation then it can't fall within the definition of tourist and visitor accommodation and must be an innominate use under the zoning table and thereby permissible.

However, if the Court found that the proposed use is either temporary or short term it further submits that the development is still unable to be characterized as "tourist and visitor accommodation" because of the use of the words "visitor" and "tourist" in the definition itself.

Consistent with Chamwell and Graincorp the applicant submits that a use must be for a planning purpose. The purpose is the end to which the use of the land is seen to serve. (AWS at [29] - [31]). It describes the character, which is imparted to the land on which the use is pursued. The applicant submits that the provision of accommodation is the physical act by which the land is made to serve the purpose. The purpose being the provision of accommodation does not of itself impart the necessary character of the use. Accommodation can come in many forms and for various purposes. Some examples of short term or temporary accommodation on a commercial basis are hospitals, boarding houses, and nursing homes. The examples demonstrate that the accommodation itself is not a planning purpose but a physical act that serves some other purpose. Even the condition of commercial and short term or temporary can serve a number of different purposes but that does not define the planning use.

Therefore, it is necessary and appropriate to consider whether within the terms of the definition itself a purpose can be ascribed to the provision of accommodation. The purpose being served in "tourist and visitor accommodation" in a number of forms is accommodation for tourists and visitors. It is appropriate to construe the definition itself by applying a purpose to the provision of accommodation, being the purpose provided by the terms of the definition itself. The result is that an essential ingredient of the use of tourist or visitor accommodation is that it must be provided for tourists and visitors. Is this development for tourist or visitors?

The terms are not defined in the LEP so they take their ordinary meaning (AWS [42]). The Australian Oxford Dictionary is of assistance and defines the word "Tourist" as "...a person making a visit or tour as a holiday; traveler; especially abroad". A "visitor" is defined as "A person who visits a person or place" and "visit" is to "Go and come (a person, place etc) as an act of friendship or ceremony on business or for a purpose, or from interest".

The applicant submits that mine workers are not "visitors" or "tourists" to the proposed development. They come to the development to reside during and to facilitate their employment for remuneration. Residing for "employment" or "on business" are also not the same concepts. Employment connotes permanency while business connotes temporary attendance sporadic. Therefore, the provision of accommodation for mining workers is not the provision of accommodation for tourist and visitors within the meaning of LEP 2008.

The required task is to identify the purpose of the use and, in so doing significance should not be placed upon the discontinuity of occupation of the rooms but rather upon the use made of the buildings within the facility in general and as a whole (AWS [48]). The true purpose of the development is medium or more likely long term housing for a mining workforce where the individual miners temporarily depart between rostered work shifts. The development is outside the definition of "Tourist and Visitor Accommodation" under the LEP 2008 and therefore, the development is permissible in the agricultural zone.

Finding - contention 1 - permissibility

The parties agree that if the purpose of the development is not "Tourist and Visitor Accommodation" as defined in the Dictionary under LEP 2008 then it is an in nominate use and is permissible with consent on the land (Transcript 2/8 p1 line 45). It is not contended on any other basis or characterization that the development is prohibited under the LEP 2008

In order to determine if the purpose of the use of the development is "tourist and visitor accommodation" as defined, the Court must characterize the planning purpose of the proposed use having regard to the proper construction of LEP 2008.

The Council submits that a construction, which would support the objects the Act, is appropriate. It submits that the LEP intends to prohibit development that does not support the agriculture zone, which includes an objective to protect and maintain land for agriculture and other rural purposes and to preserve the zone's character and amenity. However, the Court of Appeal has made it clear in the decision of Abret v Wingecarribee Shire Council [2011] NSWCA 107;(2011) 180 LGERA 343 that the determination of the permissibility of a development is not assisted by a consideration of the objectives of the relevant zoning table.

The New South Wales Court of Appeal has recently considered the principles of characterization in relation to a similar facility in another local government area in Graincorp. In referring to that case, I agree with the Council that the Court's determination of the meaning of "residential building" does not inform the meaning of "tourist and visitor accommodation" in the present proceedings. The facts in Graincorp are different. However, the guiding principles discussed in that case in relation to characterization are applicable. Those principles are set out at [47] to [50] of the judgment and refer to the propositions stated by Preston CJ in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114. They are as follows:

In Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, Preston CJ at LEC noted the following propositions as relevant when characterising the proper purpose of a development.

First, that in planning law, use must be for a purpose (citing Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534-535; [1964] HCA 37; 10 LGRA 147 at 150 and Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 at 121; 80 LGERA 173 at 188).

Second, that the purpose is the end to which land is seen to serve and describes the character which is imparted to the land at which the use is pursued (Shire of Perth v O'Keefe at 534; 150).

Third, that in determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary (Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 499-500; [1957] HCA 15; 4 LGRA 69 at 74).

Fourth, that the use of land involves no more than the "physical acts by which the land is made to serve some purpose" (Newcastle City Council at 508; 81).

His Honour also noted that the nature of the use needs to be distinguished from the purpose of the use, since uses of different natures can still be seen to serve the same purpose (referring to Shire of Perth v O'Keefe at 534, 535; 150 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (1978) 38 LGRA 306 at 308) and that the characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes (referring to Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310).

For present purposes, this requires consideration of how the facility is to operate in practice to determine the purpose of the uses of the proposed workforce accommodation facility at a level of generality that covers the individual activities of the occupants or users of the facility.

As the Council submits that the definition of "tourist and visitor accommodation" under LEP 2008 has three elements:

(a)That there be a building or place

(b)That the building or place provides accommodation which is either temporary or short term; and'

(c)The accommodation must be on a contractual basis.

In order for the Mac development to fall within that definition it must satisfy these three elements.

In this case the parties agree that the development is a building or place, which provides accommodation on a contractual basis. The dispute relates to whether the accommodation is either temporary or short term.

In order to characterize the purpose of the development the Council submits "The definition under question requires not the purpose of the building to be determined but rather the nature of the accommodation offered" (RWS 1/8/2014 at [4]). However, the applicant submits at (AWS [23]) that "Consistent with the findings of the Court in Graincorp and Chamwell it is necessary to focus on the use made of the buildings within the facility in general. That use must be for a purpose".

I prefer to frame the question simply as - what is the manner of the use of the development?

The answer to the question is in the applicant's Statement of Environmental Effects at (AWS [6] to [9]). It describes the manner of use of the development as:

A Workers Accommodation Facility comprising 400 rooms, to service the surrounding mine construction and associated peak workforce. The nature of the development is specifically to provide accommodation for "drive in/drive out and fly in /fly out workers" and each stay by a worker will generally be for a number of days or weeks and the period of time that any individual worker will utilize the accommodation in aggregate will vary being generally months or years.

In short the development offers long term or permanent residential accommodation for the workers who service the mines in the local area albeit there may be periods when they leave and later return to work (AWS at [24] to [26]). There is nothing in the development application before the Court to suggest that a worker's stay is limited to temporary or short-term accommodation.

The manner of use of the development is different to the uses described in the definitions of a backpacker's accommodation, hotel accommodation, and serviced apartments as defined in the LEP 2008. Each of these, by definition, offers temporary or short-term accommodation on a commercial basis. Such accommodation is ordinarily associated with a single or short stay and can be distinguished from the lengthy stay (punctuated by short periods of absence) offered by the Mac facility to mine workers whilst under contact to a particular mine.

I do not accept the Council's submission that because the accommodation is for fly/in fly/out or drive/in drive/out workers that those occupants do not intend to reside at the facility on a permanent or consistent basis. There is no evidence to support such a proposition. In fact the evidence is to the contrary. The proposed accommodation or manner of use is long term residential accommodation for mine workers whilst under contract to the mine, which in some cases is months or years albeit with punctuated breaks. This is accommodation on a consistent basis and therefore cannot be characterized as temporary or short-term accommodation.

The Council also submits that the accommodation offered by the facility is short term and temporary because it will not be the workers' permanent home or primary residence. However, the definition under review makes no reference to primary residence or permanent home. It does not follow in my view that if you are staying permanently in the facility whilst employed under contract that you need to make that accommodation your primary residence. In any event there is no evidence to support such a proposition. Some miners may well have no other primary residence while others may reside in the facility for years and still have a primary home elsewhere. The existence of a primary home elsewhere does not characterize the purpose of the development as short term or temporary accommodation.

After a consideration of the facts and the principles in Chamwell I find that the manner of use proposed is long term or permanent accommodation for mineworkers whilst they are contracted to service the mines. Therefore, the development does not fall within the definition of "tourist and visitor accommodation" as defined under LEP 2008. The proposed use is something else and, as it is not nominated in any other category under the zoning table, it must be an innominate use, which is permissible with the consent on the site.

Finding - tourists or visitors

Although it is not necessary to deal with this issue of whether the development is for tourists or visitors accommodation for the sake of completeness I propose to do so.

The Council submits that there is nothing in the definition that requires the occupants to be tourists or holidaymakers. Therefore, it contends that the occupants of the Mac can be characterized as "visitors" because they will not be permanent residents of the area.

I do not accept this submission after a consideration of the ordinary meaning of the word "visitor". I am assisted by the definition of "visitor" in the Australian Oxford Dictionary as discussed at [106]. It is: "A person who visits a person or place" and a "visit" is defined as "Go or come to see (a person, place etc) as an act of friendship or ceremony, on business or for a purpose, or from interest".

In my opinion a "visitor" is very different to the mineworker who will reside at the Mac development whilst contracted to the mine for their employment. During their stay they may work long shifts, have limited free time, abide by a code of conduct and live in accordance with their contract and Mac's plan of management. They may have rostered breaks during which time they may leave the facility only to return to reside at the facility for their employment (AWS at [43] to [44]). The occupants of the Mac are not "visitors" by any stretch of the imagination based on the evidence before me. I accept the applicant's submissions on this issue at [110]:

They come to the development to reside during and to facilitate their employment for remuneration. Residing for employment and "on business" are also not the same concepts. Employment connotes permanency while business connotes temporary attendance sporadic.

Having determined the development to be permissible under LEP 2008 I now turn to contention 2.

Contention 2 - the aims of LEP2008 and the Mid Western Regional Comprehensive Land Use Strategy

Council's submissions

The Council 's written submissions on this issue are set out at paragraphs [2] - [10] of RWS.

Contention 2 (a) asserts that the development is contrary to the aims of LEP 2008 because the development does not promote the orderly and efficient use of the land or protect the setting of Gulgong as provided in cl 2 (c) and (i). The relevant aims are:

(c) to manage urban and rural settlement in a way that achieves the orderly and efficient use of land while maintaining and conserving resources for future generations,

(i) to protect the settings of Mudgee and Gulgong by:

(i) managing the urban/rural interface, and

(ii) preserving land that has been identified for future long term urban development, and

(iii) conserving the significant visual elements contributing to the character of the towns (such as elevated lands and rural landscapes), and

(iv) conserving the visual amenity and rural character of the main road entry corridors into Mudgee and Gulgong.

It is also contended in Contentions 2(b) and (c) that the development is contrary to the Council's Strategy which was endorsed by the NSW Department of Planning and Infrastructure on 1 August 2011. The Council assets that the Strategy was prepared to provide clear direction and guide future change in the area for the next 15 to 20 years.

The development is said to be incompatible with the Strategy because it proposes a residential style of development in a location not envisaged by the Gulgong structure plan.

The fact that the Strategy does not specifically refer to TWA accommodation is of no concern to the Council because, as Mr Bruce explained in his evidence, TWA's are a species of the residential accommodation considered within the Strategy.

As far as the Council is concerned the critical issue is that the neither the LEP 2008 or the Strategy identifies the site as being suitable for the accommodation of up to 400 persons per night.

It is submitted that the policy decisions in the Strategy were made after due consideration of a number of factors not just the commercial interests of particular developers. It is based on many source materials and demographic projections. It is soundly formulated and there is no evidence before the Court that the Strategy has been abandoned. Therefore, it should not be displaced (as suggested by the applicant) by the more recent Manidis report prepared by the Department of Planning.

The Council contends that the documents are designed for different purposes. The Strategy is designed to inform strategic planning in the LGA and the Manidis Roberts report to assist in considering strategic planning but it is not intended for that purpose.

The Council contends that the Strategy is a relevant consideration as part of the public interest. Terrace Tower Holding Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 210.

Applicant's submissions

The applicant submits that there is no requirement in LEP 2008 that the development needs to be consistent with the aims of the LEP 2008 in order for the Court to grant development consent. Nor is there any specific provision in the LEP 2008 that requires the Court to have regard to the aims in its consideration of this application for development.

At its highest the aims are relevant in the Court's consideration of the whole of the LEP 2008 under s79C which includes the public interest.

The applicant submits that the planners have considered (at pp 4 -9 of the joint report (Exhibit 10) the aims identified in the contentions. The planners agree at paragraph 2.5 that in relation to aim cl 2(i) the development is not inconsistent with sub clauses (ii) and (iii) or (iv). At paragraph 2.3 they conclude:

The site was not located within a purely residential location, nor was it located within a purely rural location. It was agreed the locality involved a mix of uses including small rural holdings, rural landscapes and rural residential lots and associated dwellings. It was agreed the more open rural landscape along Cope Road existed north of the more heavily timbered site to the north where the Council tip was located.

The planners also agree at paragraphs 2.4.2 and 2.4.3 of (Exhibit 10) that:

...the site did not represent a significant visual element within the landscape and that the proposed development was sited, designed and landscaped in manner that meant it was not inconsistent with this particular part of objective (i)...the characteristics of the Copt Road entry to Gulgong in the locality is not represent a particularly high visual amenity, and that the proposal was setback from Cope Road and otherwise, sited and designed and landscaped in a manner that meant the proposal was not considered inconsistent with that particular part of objective (e). (AWS [7] -[11]).

The amended stormwater and landscape plans do not change the planners agreed position that the visual impact of the development is acceptable. (T8/11 p26 L10-35).

With respect to the orderly and efficient use of the land (as identified in cl 2(c) of LEP 2008) the applicant's planner Mr Strudwick is of the opinion that the development represents orderly and economic use of the land because the site is adjacent to the edge of town and can be serviced (at 2.7 Exhibit H).

Mr Strudwick does not accept Mr Bruce's evidence that TWAs were considered as a species of the residential accommodation in the Strategy. In his assessment the Strategy does not recognise TWA's as a type of land use. Therefore, he is of the opinion that the Strategy should not be used as a hard and fast tool in the assessment of all appropriate development areas. He says this because he believes that that there is already sufficient zoned residential land to cater for normal population growth (much of which has not been taken up) - and that the growth associated with mining sector demands could not be considered normal growth. In his opinion, TWAs provide an increased diversity of residential opportunities to the market (paragraph 2.12 to 2.15 Exhibit H), which are capable of quickly meeting the needs of the mining sector.

The applicant submits (based on the evidence of Mr Strudwick) that an approval of the proposed TWA will not undermine the Strategy as it will still allow for the development of conventional housing within the town that responds to more constant and certain growth (paragraph 2.14 Exhibit H) and the orderly and efficient use of the land (cl2(c) and (i)). An approval of this development does not leap-fog other un-serviced areas to the west and south west of the site or require a significant extension of water and sewer infrastructure to service the site because water connection is available from Black Lead Lane and sewer connection is required from the STP to the west of the site in any event.

The agreed position of the water and sewer experts is that there is or can be capacity for future development as well as the proposal. Concerns about the impacts on local housing are unfounded because as Mr Murphy the applicant's economist, told the Court a purpose built TWA provides a shock absorber to the local housing market (T7/11 p125 L34). The FIFO/DIDO's are not permanent residents of Gulgong but workers who respond to the needs of the volatility mining industry. When the FIFO/DIDO workers leave town when their contract ends, the TWA suffers the economic consequence of their leaving rather than the local housing market.

The applicant submits, based on the evidence before the Court, that there are substantial resources in the region including areas proximate to Gulgong (P24 Manidis Roberts (Exhibit 1 P661) which do and will generate a need for mineworker accommodation in the form of TWAs. The need will increase as overseas economies take off, mining demand will increase (T7/11 P91L45, P99 L30 & p 100) and that demand will be satisfied by an increase in mining which will inevitably lead to an increase in mining jobs a substantial proportion of which will be FIFO/DIDO workers. They will need to be accommodated and without TWAs they will take-up tourist accommodation and then force out the low socio economic groups (T7/11 P46 L20, P82-82). If enough housing is still not available thus limiting the FIFO/DIDO workforce then members of the community such as police and fire service personal will leave their employment for higher paid mining jobs) P74 RFS and Page 90 Police Manidis /Exhibit 1 P712&P727). The proposal provides a buffer to minimize these impacts. Contrary to the evidence of Mr Bruce, the applicant submits that the proposal is both orderly and economic.

After a consideration of the evidence as outlined and the provisions of LEP 2012 including the prohibition in cl 6.11 under s 79C and the public interest, I am satisfied for the reasons stated that the provisions of LEP 2012 do not provide a basis for the refusal of this application.

Contention 6 - DCP locational requirement

Contention 6 is that the development does not comply with the locational requirements in the DCP. In particular it is too remote from the mines located in the area.

Relevantly, the DCP does not define the term "remote". However, Mr Bruce considers the proposal is against cl 7.1 of the DCP because it is remote from the major infrastructure projects and generates an increase in traffic. He believes the site cannot be justified over other closer sites. In his assessment cl 7.1 is an overarching clause that provides a structure for what needs to be assessed at each location under cl 7.2 (paragraph 5.3 Exhibit 10).

Despite his concern, the Council has not raised traffic as an issue in its contentions. It has never considered traffic generation to be a problem even on the assumption that 400 workers would drive to work. In fact the Council's assessment report and the RMS both assess the proposal as one that will not have an unacceptable impact on the roads (Exhibit 2 pp 60-62).

Mr Strudwick believes that Mr Bruce has misunderstood the objective in cl 7.1 of the DCP (AWS P14 [73]. He believes that the proposal is not remote or an unreasonable commute for workers to the mine or major infrastructure project sites based on his assessment of the distances to the Ulan, Moolarben, Cobbora and Wilpinjong mines (Appendix F of his statement Exhibit 10).

The proposed TWA is proposed to be located within 1.5 km of the edge of the urban zone of Gulgong and 22 km from the Ulan mine area. The DCP in cl 7.2 allows a TWA in that location.

The applicant also contends that the TWA location satisfies all of the requirements listed in the Table to cl 7.2. The water and sewer services can accommodate the Mac and demand identified in the Strategy. The proposal will leave a legacy of infrastructure and return the water and sewer capacity at the end of the life of the proposal when it is decommissioned in 20 years.

There is no unacceptable visual impact according to the evidence of the planners or any negative impact on surrounding development subject to the imposition of the proposed conditions. As required, a footpath/cycle way will be provided by the applicant in accord with cl 7.2. The facility will not replicate town facilities (except those allowed such as food or a gym). The applicant has proposed a plan of management that addresses the issues in cl19 of the DCP. The plan is similar to that imposed by Council on the TWA at Ulan and the TWA at Moolarben. An economic assessment of the impacts of the proposal has been undertaken and Mr Lette has submitted a social impact statement addressing the key principles in cl 9 which support the development.

I accept Mr Strudwick's interpretation of the locational requirements in the DCP because it achieves the objectives of the DCP in cl 6. The site is not remote, being within 1.5 km from the edge of the urban zone. The proposal achieves the objective in that it "maximizes social integration of the workforce and economic benefits whilst minimizing social costs". Based on the RMS and Council's assessment, the 20-minute or 22km drive does not generate unacceptable traffic impacts or a long commute to the major infrastructure projects. Mr Bruce's interpretation of the DCP is in my assessment against the evidence, which supports a conclusion that the proposed site is not remote.

After a consideration, of the documents submitted by the application in response to the DCP, I am satisfied that the criteria in cl 7 are satisfied. The development can be justified in terms of the capacity of water and sewer reticulation system in Gulgong for the reasons stated later in this judgment.

The DCP is not a basis for the refusal of this application.

Contentions 7 and 8 -Availability of Water and Sewer

The Council contends that the applicant has not justified the capacity of the water and sewer reticulation systems in Gulgong to take the development. It asserts that the Mac development will have a significant impact on those services and compromise future urban development in Gulgong.

Water

Following further analysis, Dr Martens and Mr Law agree that the proposal will not detrimentally affect water pressure within the existing network and that the Mac development will operate at a peak daily demand of 0.212 ML/d (Exhibit 24).

However, the experts do not agree upon the existing service capacity of the Gulgong reservoir. Dr Martens says it is 3.8 MLd and Mr Lucas says it is 4 ML/d (Exhibit 7 Paragraph 205) (Dr Martens changed his written evidence where he had agreed to 4ML/d in the course of his oral evidence at Court).

They also do not agree about the existing peak daily demand for water in Gulgong. Dr Martens' evidence is that it is 3.24 ML/d and Mr Lucas says it is 2.5 ML/d. Dr Martens' figure is based on the NSW Public Work Department figures which include an allowance for future growth of 0.76 ML/d by 2031(T25/11/13 P15 L10). He believes the addition of the Grimshaw Lane development to the service will add 0.55 ML/d. If the existing peak daily demand is 3.24 ML/d and an allowance of 0.76 ML/d is provided for existing and future development then according to Dr Martens the resource capacity needs to be 4.0 ML/d (3.24 ML/d + 0.76 ML/d). Therefore, the current capacity of the reservoir at 3.8 ML/d will not accommodate existing peak demand and future growth. There is a shortfall of 0.2 ML/d and according to Dr Martens' evidence the Council has 12 years to address this issue by augmenting the reservoir.

If the Mac development is connected, Dr Martens' evidence is that there will be a need for an additional 0.412 ML/d in the reservoir (0.2 ML/d + 0.212 ML/d (Mac)). Therefore, according to Dr Martens' evidence adding the Mac would require the Council to augment the water reservoir within 6.6 years.

Under s 64 of the LGA the Council has the opportunity to require levies contributions based on ETs. The experts agree that the water demand equates to 424 EPs. If the EPs are converted to ETs then on Dr Martens' evidence one ET = 3 EP. The Mac development generates 141.33 ETs. The current developer contribution for one water ET is $8,033.00. The Mac will be contributing 141.33 x $8,033.00 = $1,135,303.89. This contribution (Council wide) is not allocated funding.

The cost of augmenting the water reservoir to increase its capacity to accommodate the Mac demand (0.2 ML) is $144,000. The evidence is this allows a constant contingency of 25%.

According to the evidence the Public Works Department has recommended that there needs to be an upgrade of the reservoir on Flirty Hill to accommodate future growth in Gulgong, based on an estimate of .76 (T 25/11/13 P8 L25-50). The Council plans to increase the capacity of the reservoir: the issue is when.

Dr Martens' evidence is that there is not currently sufficient water capacity to take the future growth even if you ignore the Mac (T25/11/2013 P17 L35). His evidence is based on the Public Works figures and that figure includes the .76-projected growth. With a current reservoir capacity at 3.8ML there is a shortfall of .02ML currently. Despite that evidence Dr Martens agreed that if the Mac were connected today without any allowance for growth, or any other developments, it would have capacity today. (T25/11/2013 P5 L10).

Mr Lucas's figure of 2.5 megalitre peak day is based on the data collected from the treatment plant over the last year which was a time of little rain and hot weather. He is of the opinion that the Dr Martens figure of 3.24 megalitre is too high because it relies on the NSW Departmental of Public Works figures, which includes an estimate for future demand at .76 megalitre by 2031. This estimate figure is too conservative and 30% higher than required as a factor of safety. The Strategy estimate for future growth is .3 megalitre or .2 megalitre (T25/11 P7 L30)

Finding - Water

In my assessment of the evidence it is clear that the water capacity in Gulgong is not currently sufficient to meet peak daily demand and future growth relying on the Department of public works figures. The Department has recommended an upgrade of the reservoir and irrespective of whether this development or Grimshaw Lane is connected, the water capacity needs to be upgraded.

Despite that, the Mac and Grimshaw Lane development can be accommodated but that precludes an allowance for future growth projected a .76 until 2031. Mr Lucus say .76 is too high.

Accepting Dr Martens' conservative figures there is a need for an upgrade of the reservoir within about 6 years. While the new water reservoir may need to be built within 6.6 years to accommodate future growth there is sufficient capacity to connect the Mac today and deal with relevant contributions/levies under the s 68 approval process.

The Mac cannot be connected to the water or sewer without an approval from the Council under s 68 of the Local Government Act 1993 (LGA). Section 64 of the LGA allows the Council to levy charges on developers pursuant to s 306 of the Water Management Act 2000.

The charge is not restricted to the s 64 of the LGA. The Act authorises a monetary contribution and/or the construction of water management works to serve the development. The Council has the power to levy the full costs of the developer charges and the $144,000 augmentation works as a precondition to the issuing of a certificate of compliance under the Water Management Act 2000. (The applicant has a right of appeal as to the appropriateness of the charges, including set-offs for works in kind)

The Council submits that if the development is approved it is appropriate to impose conditions on the consent requiring the applicant to upgrade the capacity for water (and essential works to the sewer) prior to construction to ensure the public are not disadvantaged. It also submits that the more desirable course (consistent with the objects of the EPA Act, the planning instruments, and strategy) is:

For the application to wait until such time as the capacity and functional requirements of the Council have been resolved, at which time the Court could be confident that the services can be provided. (RWS 72)

In my opinion the approval process provided by the s 68 of the LGA provides an appropriate opportunity for the Council to levy charges and/or works to address the water connection issues identified. The process will not allow connection to the services without Council's approval. I do not believe it is appropriate for the Court in this case to impose conditions on the consent which require augmentation works or force the applicant to volunteer to enter into a VIP (because the Court cannot legally require the applicant to enter into one) with the result that the applicant is forced to pay for additional works and circumvent any appeal right in respect of the reasonableness of the amount or set-off against s 64 contributions. For that reason I decline to impose the Council's draft conditions in this regard.

Instead I require a condition that the applicant obtain a certificate of compliance prior to the construction certificate and thereby allow the process under the LGA and WMA to take place including any appeal.

Sewer

Following sampling of the sewer treatment plant, Dr Martens and Mr Law agree that the existing sewer treatment plant has the capacity for both the Mac development and future planned development.

However, in order to ensure the sewer treatment plan can operate to full capacity Dr Martens and Mr Law agreed that certain works were required including: Irrigation ($263,000 including 50% contingency (Exhibit 23)); aerators ($235,000 including 50% contingency (Exhibit 23)); and Sludge Management ($125,000 including 25% contingency).

The timing and payment for these works is at issue between the parties.

According to the evidence, the Mac development generates a sewer demand of 424 EPs that equates to 141.33 ETs. The contribution for one sewer ET under Council's s 64 plan is $3,668.50. This means the developer contribution for the development will be $518,481.33 (being 141.3 x $3668.50).

The cost of carrying out the identified sewer works is $623,000 (including a contingency amount of $191,000). Although there is some dispute about the cost of the aerator - $91,000, the Council will receive a contribution from the Mac of $518,418.33 for sewer connection. The evidence from Ms Cam discloses that the Council has $941,000 funds available in its s 64 sewer fund (Exhibit R).

Dr Martens and Ms Cam agree that the irrigation field and sludge management are existing problems - known since the 2011. They are referred to in the Aqsol report. Only about $10,000 of the costs of the irrigation fix is attributable to the Mac according to Ms Cam's evidence.

Dr Martens' evidence is that no additional effluent should be added to the STP until the irrigation problem is fixed, including Grimshaw Lane development. He also says that the sludge problem has nothing to do with the Mac development. The Council is addressing this issue and has allocated $300,000 - tenders that have been received for the works are $100,000 more than the allocated funds. Ms Cam is recommending to Council that they increase the allocated funding and purchase a mobile dewatering plant this financial year. Despite the current sludge problem the evidence is that Council has connected 53 connections since 2011 (Exhibit 30).

Finding -sewer

The evidence supports a finding that the sludge has nothing to do with the Mac development and its contribution to the irrigation fix is $10,000 (as stated by Ms Cam). Therefore, it is fair to say that the total amount of expenditure caused by the Mac development for augmentation is $245,000. The Mac s 64 charges are double that amount at $518,481.33. The Council has funds of $941,000 available in its s 64 sewer fund (LGA wide) and Ms Cam will recommend to Council that it allocate $100,000 to cover the additional cost of the mobile dewatering plant. The total upgrade funds of $623,000 will then be available. There is no doubt on the evidence that the Council needs to address these issues irrespective of the Mac connection. The upgraded facilitates are necessary. Quite appropriately Ms Cam has identified the urgency and communicated that to the Council for action this financial year.

In my assessment the Mac contributions for sewer connection under s64 of the LGA together with the sewer funds available to the Council will provide sufficient funding to carry out the necessary works to the Gulgong sewer treatment plant that the Council is in the process of undertaking. For the reasons stated I do not believe that it is appropriate to impose a condition on the Mac consent requiring these works to be carried out prior to connection or a condition that requires the Mac to pay for additional works. The approval process under s68 of the LGA is the appropriate means by which to deal with sewer connection and appropriate charges and levies under s 64 for development.

I agree with the Council's submission that it is not a matter for the Court (as consent authority) to determine the funding regime or priority of funding for community infrastructure. However, on the evidence, it seems that the Council has already prioritised and identified essential works to be undertaken in respect of the sewer treatment plant irrespective of the Mac. The priority of this work has no doubt been reinforced by Dr Martens' recommendation that no new development should be connected until the sewer works are completed.

With that advice from Dr Martens in mind, I do not accept on the evidence that the security of the sewer treatment plant for Gulgong will be at risk (as the Council submits) by an approval of this development in circumstances where the works are to be undertaken this financial year according to Ms Cam.

Social impact

The Court received evidence about social impact from Dr Ziller on behalf of the Council and Mr Lette and economic impact from Mr Murphy on behalf of the applicant. They prepared individual statements and joint reports and they also gave concurrent evidence in Court.

Before I deal with their evidence however, I need to record that it was difficult to reconcile the competing views of the social planners because they did not start from a common base. Dr Ziller's evidence was based on a comparison of the town of Gulgong, as it exists now, against a town with the Mac and FIFI/DIDO workers. Dr Ziller would not consider the town with FIFO/DIDO without the Mac. Nor would she acknowledge the likelihood of an influx of FIFO/DIDO workers if there were an upsurge in mining (T6/11/2013 at P110 111 P118-119). In fact her evidence was that she had reservations as to whether a FIFO/DIDO workforce was ever appropriate (T 6/11 /2013 P95 L40 and P96). For those reasons I found her evidence subjective and to a large extent unhelpful.

Mr Lette's however, considered the social impacts of the town of Gulgong as it exists with the Mac and FIFO/DIDO workers and also without the MAC but with FIFO/DIDO workers. His evidence was more credible because it accepted the overwhelming evidence that FIFO /DIDO workers are inevitable part of the mining industry workforce.

Based on the Manidis report and Mr Murphy's economic evidence, the town of Gulgong is proximate to significant coal resources and coal is the single largest export in revenue for NSW. While the future of the NSW coal industry is tied to global demand it is predicted to increase by up to 60% over the next 25 years (Manidis p21 at 3.1). Furthermore, population growth attributed to mining expansion is estimated to be in the order of 5,920 of which 3,187 will be FIFO/DIDO workers (Manidis p 32). The evidence is that there is a significant potential shortage of lot provision in the Mid Western Region based on the lot predictions in the Council's Strategy. Therefore, if housing demand is not met then this leads to increases in mean and median house prices in the area. The Manidis report concludes that if housing supply does not improve, the increase in house price could mean that people not benefiting directly from mining activity are priced out of the market (Manidis table 12 P 40). Given the long lead up time required to deliver a large number of houses to the market (eg Grimshaw Lane) mining companies are looking to alternatives means of housing in TWA.

The evidence is that TWA's are an inevitable part of the mining industry and mining companies will seek accommodation close to mines and towns nearby. Therefore, with or without the Mac, large numbers of mine workforce will establish themselves close to towns like Gulgong. For that reason they cannot be ignored or deemed not ever to be appropriate.

Both Dr Ziller and Mr Lette agree that the greatest impact is caused by the initial introduction of workers. Already 20% of workers in Gulgong are related to the mines. If you place an additional 100 non-resident workers in Gulgong in tourist or shared accommodation this initial impact will be concentrated and not collectively managed.

According to Mr Lette this influx of non-resident workers into town will be far more conspicuous than in a purpose built facility located 1.5km on the outskirts of town (T6/11 P101-102). Dr Ziller disagrees and her evidence is that the Mac will exacerbate the concentration of non-resident minors because it will accommodate 1000's of workers in hot bedding. However, the evidence does not support this as there will only ever have a maximum of 400 persons staying at the Mac at any one time. Nor is it likely that all the TWA miners will travel into town together as they are shift workers (Exhibit K paragraph 13).

The analysis of the social issues suggests that most of the anticipated negative impacts of the Mac development may be perception rather than reality or are specific to a large influx of mine workers rather than the Mac development itself.

The integration measures suggested in the Urbis report at p 164 onwards and supported by Mr Lette's evidence, such as open days to allow the community to inspect the Mac and a facility liaison officer to be established, the Mac's involvement in local events (e.g. sporting events), the Mac buying locally and employing locally and offering community sponsorship programs - will help to better integrate the Mac residents with the local community.

The Mac will house its occupants in a secure facility and the occupants will be required to abide by a plan of management and their contract of employment. They will be encouraged to integrate in town. I accept the applicant's submission that none of these positive things will happen without the Mac. I also accept Mr Lette's evidence that without the Mac a large group of FIFO/DIDO workers in Gulgong are less likely to integrate and greater amenity impacts might result for immediate neighbours (AWS 120).

While there will be a predominately male population of workers at the Mac, the gender imbalance has not proved an issue at the Narrabri Mac. Nor is there evidence to support Dr Ziller's concern there will be a "little rich persons enclave on the edge of town" (T6/11 P98 L30). I have already dealt with the social planning evidence in my consideration of the objectors concerns. Therefore. I do not intend to repeat those matters save to say that Dr Ziller's concerns are based on theory not practice. Mr Lette and Mr Murphy have relied on evidence from the impact of the Mac on Narrabri. It demonstrates that there has not been an increase in crime or alcohol related harm as the result of the Mac located near Narrabri.

For the reasons stated I accept the applicant's expert evidence over that of Dr Ziller in respect of this social planning contention. .

Contention 12 - Public interest

The final contention is an assertion that the proposed development will not be in the public interest because it promotes and relies on a FIFO/DIDO workforce which is less economically beneficial to the community of the LGA than housing of these workers and their families as permanent residents.

The Council did not provide any expert economic evidence on this issue but relied on its planner Mr Bruce. The applicant relied on an economist Mr Murphy.

To a large extent I have already deal with this contention. As noted earlier Mr Murphy told the Court that it is incorrect to assume that if you do not provide accommodation in a TWA that the workers will become permanent residents and that housing will be built to accommodate them in Gulgong or the LGA.

Mr Murphy told the Court that the mining boom will continue and it is hard to refute that statement on the evidence. However, mining is cyclical and FIFO/DIDO workers follow the upswings in mining. Based on the Manidis report (which assessed the likely impacts of mining on infrastructure over the next 17 years and Mr Murphy's evidence) if a FIFO/ DIDO workforce arrives and there is no purpose built TWA then the FIFO/DIDO workers will stay near towns in hotels and shared accommodation. They are unlikely to buy houses and relocate their families if they are on contract with a mine as a FIFO/DIDO.

Without the Mac an influx of FIFO/DIDO workers will force the lower socio economic groups out of affordable housing because FIFO/DIDO can pay more in the market. There is also direct competition between mining and tourism. If mining peaks, then tourism suffers, and in Gulgong that is a real concern given the importance of tourism. Mr Murphy believes no developer will build permanent houses for rental to FIFO/DIDO workers because when demand drops the houses are vacant and that in turn reduces the value of other permanent houses in the market there is a glut.

A TWA takes the pressure off both the lower socio-economic groups and tourism. It is a buffer to the volatility of the mining industry. The Mac style TWA can manage the social and economic impacts of FIFI/DIDO work force and is not less economically beneficial for the community, based on Mr Murphy's uncontradicted economic evidence over the planning evidence of Mr Bruce on this issue.

I cannot accept, in light of the evidence before the Court, the Council's submission that because the mining market may have "gone off the boil" at the time of the hearing as compared to when the DA was lodged or that certain mining projects have been put on hold means that the demand for FIFO/DIDO workers accommodation is dropping and the urgency has altered to warrant a refusal of this application. Mining is cyclical and FIFO/DIDO workers follow the upswings in mining. Based on the Manidis report demand will continue to increase over time for mining and therefore FIFO/DIDO workers. This application seeks approval of one TWA for 20 years to accommodate up to 400 persons. Based on the evidence, its approval will not in my assessment be against the public interest or cause unacceptable economic consequences for the permanent housing market of Gulgong.

Conclusion

Having considered the provisions of s 79C of the EPA Act and assessed the evidence relevant to those matters identified in the section, including the evidence of the experts and the objectors, the Court has decided that it is appropriate to approve the development sought by the applicant subject to the imposition of the Council's conditions in Exhibit 34 (the version dated 4 December forwarded by e Court on 5 December 2013) as amended by my reasons for judgment. The amendments relate to the following matters:

1.The Court does not impose the Council's proposed deferred commencement conditions.

The applicant wishes to stage construction to enable the construct of a minimum of 202 rooms and sufficient facilities in line with demand. The Court, in its assessment of the evidence including the volatility of the mining industry, accepts the applicant's conditions for the staging of the construction.

There is no planning basis to require the construct of the 400 rooms at the one time given that all necessary infrastructure will be completed in Stage 1. The Council has provided no planning reason why staged construction is opposed. The conditions include the Preliminary Staging Plan in condition 1 and 4.

2.For the reasons stated the Court is satisfied that the impacts of the proposed development on the sewerage plant and water system and the Council's position and the public interest is adequately protected by the imposition of Condition 5 and 11 in the form proposed by the applicant. These conditions require a separate application to be made under s68 of the LGA for approval to connect to the sewerage plant and water system and that the applicant obtain a certificate of compliance under s306 of the WMA and pay the relevant s64 contributions prior to the issue of a construction certificate.

3.The Court is not being asked to issue a s68 approval or s306 certificate of compliance to connect Gulgong water or sewer systems. Although based on the evidence the Court is satisfied that there is current water capacity and that the sewer treatment plant is capable of accommodating the proposed development together with the planned growth of Gulgong provided that certain works, the extent of which are known, are first carried out.

4.In these circumstances the Court requires the deletion of the Council's proposed conditions 11A, 11B and 11C.

5.The acquisition condition 72 offered by the applicant is to be imposed for the reasons stated.

6.The council's proposed condition 71 in respect of the occupants of the development travelling by bus to and from their work sites at the mines is to be imposed.

7.The council's proposed condition 41 in respect of the construction of the cycle way is to be imposed.

8.The road works as detailed in the RMS approval (Folio 60 Exhibit 2 Vol 1) are to be incorporated as conditions of the consent. In the Court's assessment of the evidence the Council's proposed condition (unnumbered) for the upgrade of Cope Road is unreasonable and is required to be deleted.

9.The applicant's version of conditions 23A, 39, 44 are in the Court's assessment of the evidence appropriate and are to be imposed.

Accordingly, the Court orders:

1.Appeal upheld.

2.Development application no DA 0217/2012 for the construction of a workers accommodation facility on land at 2 Black Lead Lane, Gulgong including the construction of 400 rooms, internal roads, landscaping, drainage works and associated amenities such as a convention centre, administration building, gazebos, laundries and indoor and outdoor recreational facilities is approved subject to the Council's conditions in Exhibit 34 as amended in accordance with [277].

3.The Council is directed to file with the Court and serve upon the applicant a copy of the amended conditions of consent in an electronic form within 7 days.

4.The Exhibits will be returned after receipt of the amended conditions of consent apart from Exhibits 1 and A.

Susan Dixon

Commissioner of the Court

**********

Decision last updated: 29 April 2014

Medium Neutral Citation:	Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072
Hearing dates:	30, 31 July 2013, 1 and 2 August and 6, 7, 8, 25, 26, 27, 28 November and 5 December 2013
Decision date:	29 April 2014
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1 Appeal upheld. 2. Development application no DA 0217/2012 for the construction of a workers accommodation facility on land at 2 Black Lead Lane, Gulgong including the construction of 400 rooms, internal roads, landscaping, drainage works and associated amenities such as a convention centre, administration building, gazebos, laundries and indoor and outdoor recreational facilities is approved subject to the Council's conditions in Exhibit 34 as amended in accordance with [277]. 3.The Council is directed to file with the Court and serve upon the applicant a copy of the amended conditions of consent in an electronic form within 7 days. 4.The Exhibits will be returned after receipt of the amended conditions of consent apart from Exhibits 1 and A.
Catchwords:	Development appeal - workers accommodation facility to accommodate the FIFO/DIDO mining workforce - permissibility - the capacity of the town's sewerage and water services to accommodate the development - economic and social impacts of the development on the town
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy no 55 (Remediation of Land) State Environmental Planning Policy (State and Regional Development) 2011 State Environmental Planning Policy (Rural lands) 2008 State Environmental Planning Policy (Infrastructure) 2007 Mid-Western Regional Local Environmental Plan 2012 Mid-Western Regional Interim Local Environmental Plan 2008 Temporary Workers Accommodation Development Control Plan Water Management Act 2000 Local Government Act 1993
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107;(2011) 180 LGERA 343 Architects Haywood and Bakker v North Sydney Council [2000] NSWLEC 138 Blackmore Design Group Pty Ltd v North Sydney Council (2001) NSWLEC 279 Burwood Council v P D Mayoh Pty Ltd (1996) LGERA 268 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Gardner v Regina [2003] NSW CCA 199 Graincorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171 Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2003) 144 LGERA 33
Category:	Principal judgment
Parties:	Mac Services Group (Applicant) Mid-Western Regional Council (Respondent)
Representation:	Mr C McEwen SC with Mr M Staunton (Applicant) Ms S Duggan SC (Respondent) Sparke Helmore (Applicant) Local Government Legal (Respondent)
File Number(s):	11190 of 2012