Roden v Bandora Holdings Pty Ltd

[2015] NSWLEC 191

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191
Hearing dates:	21 and 22 October 2015
Date of orders:	07 December 2015
Decision date:	07 December 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1)   The Applicant’s amended summons filed 13 March 2015 is dismissed. (2)   The Applicant is to pay the First Respondent’s costs. (3)   Order 2 is postponed for 14 days. (4)   Exhibits may be returned.
Catchwords:	JUDICIAL REVIEW – whether development was permissible as a “rural tourist facility” and not prohibited as a “tourist facility” under the Byron Local Environmental Plan 1988 – impermissible challenge to merits of Council determination in part – whether the local council failed to consider cll 31 and 34 of the Byron Local Environmental Plan 1988
Legislation Cited:	Byron Local Environmental Plan 1988, cll 2, 9, 31, 34 Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 (NSW), ss 79C, 80, 123 Interpretation Act 1987 (NSW), ss 3, 21, 33 Land and Environment Court Act 1979 (NSW), s 25B North Coast Regional Environmental Plan 1988, cll 12, 75 Rural Fires Act 1997 (NSW)
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; (1947) 45 LGR 635 Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147; (2013) 201 LGERA 116 Bruce v Cole (1998) 45 NSWLR 163 Coffs Harbour City Council v Arrawarra Beach Pty Limited [2006] NSWLEC 365; (2006) 148 LGERA 11 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of [1981] HCA 26; (1981) 147 CLR 297 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Currey v Sutherland Shire Council (1998) 100 LGERA 365 De Luca v Simpson [2012] NSWSC 960; (2012) 193 LGERA 1 Dilworth v Commissioner of Stamps [1899] AC 99 Eden Valley Holdings Pty Limited v Blue Mountains City Council [2014] NSWLEC 1258 Egan v Council of the City of Hawkesbury (1993) 79 LGERA 321 Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182 Franklins Ltd v Penrith City Council [1999] NSWCA 134 Gilbank v Bloore (No 2) [2012] NSWLEC 273 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83 Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180; (2008) 160 LGERA 274 Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Manly Council v Hortis, [2001] NSWCA 81; (2001) 113 LGERA 321 MCC Energy Pty Limited v Wyong Shire Council [2006] NSWLEC 581 (2006); 149 LGERA 59 McMaster v Wagga Wagga City Council [2009] NSWLEC 1237 Milano Convenience Store Pty Ltd v Meqdadi [2010] NSWLEC 29; (2010) 172 LGERA 255 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Rydge v Byron Shire Council [2012] NSWLEC 155 Schroders v Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250; (2011) 211 LGERA 1 Teys Australia Southern Pty Limited v Burns [2015] NSWLEC 1; (2015) 206 LGERA 186 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Woolworths Ltd v Pallas Newco Pty Limited [2004] NSWCA 422; (2004) 61 NSWLR 707
Texts Cited:	DC Pearce & RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Colin Roden (Applicant) Bandora Holdings Pty Ltd (First Respondent) Byron Shire Council (Second Respondent)
Representation:	COUNSEL: Mr F G Kalyk (Applicant) Mr S Nash (First Respondent) Submitting appearance (Second Respondent)   SOLICITORS: Wilshire Webb Staunton Beattie Lawyers (Applicant) McCartney Young Lawyers (First Respondent) Marsdens Law Group (Second Respondent)
File Number(s):	40019 of 2015

Judgment

Judicial review challenge to grant of development consent

1. Mr Roden (the Applicant) commenced these judicial review proceedings under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) seeking an order that development consent no 10.2014.230.1 (the consent) granted to Bandora Holdings Pty Ltd, the First Respondent (the Respondent) on 13 October 2014 by Byron Shire Council (the Council), the Second Respondent, is unlawful and invalid. The Applicant as the moving party has the onus of proof for establishing the grounds of appeal. The Council has filed a submitting appearance in these proceedings.

2. The consent authorised the use of the existing dwelling and surrounding garden areas on the land situated at 440 Bangalow Road, Talofa (the land) for the purposes of a “rural tourist facility” under the Byron Local Environmental Plan 1988 (the BLEP). The land is located on the northern side of Bangalow Road in an elevated position. The land is located in the 1(a) zone (General Rural Zone) under the BLEP. The consent permitted the erection of a marquee on a ridgeline on the site, inter alia.

3. On 8 May 2014 the development application (DA) was lodged with the Council. A Development Application Evaluation Report (the Assessment Report) was prepared and signed by Mr Larkin, Council senior planner, and Mr Darney, Council executive manager, on 13 October 2014. The Notice of Determination of a Development Application also dated 13 October 2014 and signed by Mr Larkin granted conditional consent to the DA as provided by s 80 of the EPA Act. One condition referred to the regulation of the use of fireworks on the land. Mr Larkin was the assessing officer of the DA from the time of its receipt with the Council until the time of its determination.

4. The BLEP has since been substantially repealed. The savings provisions of the Byron Local Environmental Plan 2014 (BLEP 2014) mean that the BLEP continued to apply to the consent.

5. The issues as raised by the parties at the hearing rather than as identified in the amended summons filed 13 March 2015 were as follows:

1. whether “rural tourist facilities” are permissible with consent in the 1(a) zone (General Rural Zone);

2. if so, whether the proposed use properly characterised is for the purpose of a “rural tourist facility”;

3. whether the Council considered the matters required in cl 31 of the BLEP in assessing and determining the proposed use;

4. whether the Council considered the matters required in cl 34 of the BLEP in assessing and determining the proposed use;

5. whether the Council considered the matters required in cl 75(c) of the North Coast Regional Environmental Plan 1988 (NCREP) in assessing and determining the proposed use; and

6. whether the Council considered the matters required in s 79C of the EPA Act in assessing and determining the proposed use.

6. Issues 1 and 2 are related, as are issues 4 and 5. The Respondent conceded that if the Applicant was successful on ground 1 the development consent would be invalid because it would be prohibited. The Applicant conceded that if the Council properly considered cl 34 of the BLEP in determining the DA (issue 4), then it also satisfied consideration of cl 75(c) of the NCREP (issue 5). The Respondent contended that if the Applicant was otherwise successful on any of issues 3-6 an order under s 25B of the Land and Environment Court Act 1979 (NSW) could be made.

Legislation/statutory instruments

Environmental Planning and Assessment Act 1979

7. Section 79C of the EPA Act provides:

79C Evaluation

(1)   Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia)   any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv)    the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

…

North Coast Regional Environmental Plan 1988

8. The NCREP relevantly provides:

12 Development control—impact of development on agricultural activities

The council shall not consent to an application to carry out development on rural land unless it has first considered the likely impact of the proposed development on the use of adjoining or adjacent agricultural land and whether or not the development will cause a loss of prime crop or pasture land.

…

75 Development control—tourism development

(1)   The council must not grant consent to tourism development unless it is satisfied that:

…

(c)   the development will not be detrimental to the scenery or other significant features of the natural environment, and

…

Byron Local Environmental Plan 1988

9. The BLEP relevantly provides:

2 Aim, objectives and guiding principles

…

(2)   Objectives

The objectives of this plan are:

(a)   to enhance individual and community (social and economic) well-being by following a path of economic development that safeguards the welfare of future generations,

(b)   to provide for equity within and between generations, and

(c)   to protect biodiversity, and re-establish and enhance essential ecological processes and life support systems.

…

9 Zone objectives and development control table

…

Table

Zone No 1 (a) (General Rural Zone)

1 Objectives of zone

The objectives are:

(a)   to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron,

(b)   to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character,

(c)   to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses,

(d)   to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes whilst avoiding conflict between other uses and intensive agriculture,

(e)   to identify lands (shown hatched on the map) which in the opinion of the council possess a limited capability for more intensive uses or development,

(f)   to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in road side service areas,

(g)   to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry,

(h)   to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality, and

(i)   to permit the development of limited light industries which do not pose any adverse environmental impact, (eg software manufacture and film processing), and

(j)   to ensure that the development and use of land shown cross-hatched on the map adjacent to areas of significant vegetation and wildlife habitat do not result in any degradation of that significant vegetation and wildlife habitat, and that any development conserves and protects and enhances the value of the fauna and flora.

2 Without development consent

Agriculture (other than animal establishments); bushfire hazard reduction; forestry.

3 Only with development consent

Any purpose other than a purpose specified in item 2 or 4.

4 Prohibited

Brothels; bulk stores; caravan parks; commercial premises (other than veterinary establishments); drive-in banks; drive-in take-away food shops; educational establishments; industries (other than light industries using less than 100 square metres of floor area, or home, extractive or rural industries); hostels; hotels; motels; motor showrooms; recreation vehicle areas; residential flat buildings; restricted premises; shops (other than general stores); service stations; surf life saving facilities; tourist facilities; units for aged persons; warehouses.

Zone No 1 (b1) (Agricultural Protection (b1) Zone)

…

2 Without development consent

Agriculture (other than animal establishments); bushfire hazard reduction; forestry.

3 Only with development consent

Any purpose other than a purpose specified in item 2 or 4.

4 Prohibited

… industries (other than light industries using less than 100 square metres of floor area, or home, extractive or rural industries); … rural tourist facilities; … shops (other than general stores); … tourist facilities; …

Zone No 1 (c1) (Small Holdings Zone)

…

2 Without development consent

Agriculture (other than animal establishments); bushfire hazard reduction; forestry.

3 Only with development consent

Any purpose other than a purpose specified in item 2 or 4.

4 Prohibited

…rural tourist facility (other than bed and breakfast); … tourist facilities; …

Zone No 2 (a) (Residential Zone)

…

2 Without development consent

Bushfire hazard reduction.

3 Only with development consent

Any purpose other than a purpose specified in item 2 or 4.

4 Prohibited

… extractive industries; … industries (other than home industries); … rural industries; rural tourist facilities; … shops (other than general stores and shops listed in Schedule 3), … tourist facilities; …

Zone No 2 (t) (Tourist Area Zone)

…

2 Without development consent

Bushfire hazard reduction.

3 Only with development consent

… tourist facilities; ...

4 Prohibited

Any purpose other than a purpose specified in item 2 or 3.

Zone No 4 (a) (Industrial Zone)

…

2 Without development consent

Bushfire hazard reduction.

3 Only with development consent

Any purpose other than a purpose specified in item 2 or 4.

4 Prohibited

… commercial premises (other than veterinary establishments and other commercial premises used in conjunction with an industry or situated on the same land as an industry or any other commercial land use included in Schedule 5); … rural tourist facilities; …

31 Development on ridgetops

The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted:

(a)   whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and

(b)   whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used.

34 Tourist accommodation in rural zones

(1)   This clause applies to all land within rural zones where rural tourist facilities are permissible.

(2)   Development for the purpose of a rural tourist facility incorporating holiday cabins on land to which this clause applies:

(a)   may only be carried out on a single allotment, and

(b)   must not:

(i)   exceed a total of 6 cabins, and

(ii)   be carried out on an allotment with an area less than 20 hectares.

(3)   The council may grant consent for development for the purposes of rural tourist facilities on land within rural zones only where the council is satisfied that:

(a)   (Repealed)

(b)   the proposal incorporates adequate landscaping and screen plantings for visual amenity when viewed from a public road or dwelling-house on other land in the locality,

(c)   (Repealed)

(d)   the proposed development will have no adverse effect on the present and potential use, including agricultural use, of the land and of lands in the vicinity,

(e)   there will be no adverse visual impact of the proposed development on the landscape,

(f)   the proposed development will be low scale in nature, compatible with the rural environment and of minimal environmental impact,

(g)   (Repealed)

(h)   tourist accommodation is to be located so that it may benefit from existing road and physical service infrastructure, and

(i)   all proposed buildings and other uses are clustered so as to reduce impact on rural amenity, and

(j)   adequate separation distances will be incorporated to minimise the potential for land use conflict between the proposed rural tourist facility and existing or potentially conflicting land uses, such as intensive agriculture, quarries or animal establishments on adjoining or adjacent land.

10. The Dictionary to the BLEP relevantly provides:

tourist facilities means an establishment providing holiday accommodation or recreation and may include a boat shed, boat landing facility, holiday cabin, hotel, house-boat, marina, motel, playground, primitive camping ground, restaurant, water sport facility or a club used in conjunction with any such facility.

rural tourist facility means an establishment providing for low-scale holiday accommodation, or used for recreational or educational purposes and may consist of a bed and breakfast establishment, boat landing facilities, environmental facilities, holiday cabins, horse riding facilities, a picnic ground, a primitive camping ground or a restaurant or the like.

Byron Local Environmental Plan 2014

11. The objectives of the RU2 zone (rural landscape) provide:

Zone RU2 Rural Landscape

1   Objectives of zone

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

•   To maintain the rural landscape character of the land.

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

•   To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.

•   To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

Evidence

12. The Applicant tendered a court book (Exhibit A) that included the parties’ respective statements of issues, agreed facts and agreed chronology. An agreed bundle of documents was also tendered (Exhibit B). A legislation folder (Exhibit C) contained the BLEP, the BLEP 2014 and the NCREP.

13. Exhibit B included the Council’s file for the DA and email correspondence including that between Mr Larkin and the Applicant, following the granting of consent. The Council’s file comprised of, inter alia, the DA lodged 12 May 2014 attaching a Statement of Environmental Effects (SEE) dated May 2014 undertaken by Newton Denny Chapelle, the planning firm engaged by the Respondent, and two engineering referral and assessment sheets dated 19 June 2014 and 24 July 2014 respectively. A letter to NSW Rural Fire Service from Mr Larkin enclosed the DA for that Service’s consideration under the Rural Fires Act 1997 (NSW). The NSW Rural Fire Service replied to this letter on 15 July 2014.

14. A notification of development application dated 19 May 2014 was sent to owners of property adjoining the land (inviting submissions), which included the Applicant. Submissions were received from members of the public identifying objections on the grounds of noise, traffic, inconsistency of land use, inconsistency with the BLEP, colour of the marquee, inter alia. An email chain of correspondence between Mr Larkin and the Applicant concerning the Applicant’s objections, as well as town planner reports commissioned by the Applicant also formed part of the Council’s file. Mr Larkin sent an initial assessment of the DA identifying the need for additional information to Newton Denny Chapelle on 31 July 2014. The letter was also sent by email to Ms Vikstrom, an employee at Newton Denny Chapelle.

15. A file note dated 1 August 2014 by Mr Rushmore, Council team leader environmental services, identified his review of, inter alia, the Noise Impact Assessment by Tim Fitzroy & Associates, consultants engaged by the Respondent, dated 24 April 2014. Mr Rushmore recommended to the planning officer that the Council be provided with additional information for an effective noise management plan. A further file note by Mr Rushmore dated 30 August 2014 recommended that consent be granted subject to the noise conditions identified by him.

16. On 11, 15 and 28 August 2014 Newton Denny Chapelle responded to Mr Larkin’s letter of 31 July 2014 requesting additional information. On 28 August 2014 Ms Vikstrom sent an email to Mr Larkin summarising the Respondent’s legal advice that the use of the land falls within the scope of “recreation/recreational” within the “rural tourist facility” definition.

17. On 2 September 2014 Mr Larkin expressed to Ms Vikstrom his concerns as to whether the DA complied with cl 31 of the BLEP. Mr Larkin stated that he went to the land once again and agreed with the submission that the marquee would be visible from afar. On 9 September 2014 Ms Vikstrom organised a visit to the land with Mr Larkin and a landscaper, which took place on 11 September 2014.

18. Newton Denny Chappelle sent a letter to the Council on 22 September 2014 responding to Mr Larkin’s email of 2 September 2014. The letter attached a map illustrating the proposed landscape screening of the marquee pad. The map indicated the locations of existing bamboo and the proposed extension of bamboo screening to the north-west of the marquee pad. The existing fence was to be relocated to accommodate an additional tree plantation adjoining the marquee pad. A 1.8 metre high timber screen was proposed next to the north-west side of the marquee pad. To the south-west of the marquee pad scattered clusters of tree plantations were proposed. An email from Mr Larkin to Ms Vikstrom dated 1 October 2014 indicated that the Council would not request a formal landscape plan, but instead insert a landscaping condition.

19. On 2 October 2014 Mr Larkin sent an email to Ms Vikstrom seeking comment as to how the proposed use accorded with the objectives of the BLEP and the 1(a) zone. Ms Vikstrom sent a reply email addressing those objectives later that same day.

20. Mr Roden, the Applicant and owner of the property adjoining the Respondent’s land, read an affidavit affirmed 20 May 2015. Mr Roden grazes cattle on his property. He expressed concern that if fireworks were to be used on the land that would startle and scare the cattle. Cattle would have to be moved away from Mr Roden’s property prior to any firework event. This is not always possible to do at short notice and involves significant time and cost. Annexed to Mr Roden’s affidavit was a locality map, aerial photographs of Mr Roden’s property and the land, an extract from the Respondent’s website advertising wedding ceremonies and a wedding booking form. The wedding booking form (annexure C) indicated that fireworks and/or fireworks displays are not permitted at any time. These annexures became Exhibit D.

21. The DA described the proposed use as:

Proposed use of an existing dwelling and surrounds as a rural tourist facility comprising an occasional wedding function venue and holiday accommodation for up to 12 persons attending the wedding. Minor alterations are proposed to the existing dwelling as well as minor works associated with the provision of overflow parking to service the development.

22. The SEE annexed to the DA relevantly provided:

Executive Summary

1.1 Site Details

…

Existing Land Use:   Dwelling House and Rural Land

1.2 Development Application

A development consent notice is sought for the use of the existing dwelling at 440 Bangalow Road, Talofa as a Rural Tourist Facility comprising an occasional wedding function venue (up to 26/year) with between 60-120 persons in attendance. Holiday accommodation for up to 12 people will also be provided within the existing dwelling for guests attending the wedding. The application proposes relatively minor changes to the existing dwelling to provide compliant disabled access arrangements, changes to the existing driveway access to the site and works to facilitate provision of overflow parking on site.

The proposed development is described in more detail in Part 3 of this report.

…

Site Description

2.1 Location & Land Use

…

The property has a total site area of 10.88ha. It currently contains a large 5 bedroom dwelling and 2 bedroom caretakers residence. A landscaped pool area provides the linkage between the two dwellings. The existing structures were approved in July 2010 via DA 2010/226. A bitumen driveway links the dwelling to Bangalow Road. Three level “pads” are contained within the landscape in the vicinity of the driveway and dwelling.

The site is located on the northern side of the road in an elevated position. As illustrated on the Site Plan provided within the Architectural Plan Set, the existing dwelling is located on a ridge extending across the site and has an elevation of approximately 146m AHD. The site drops away to the north-east corner of the property, with the lowest point, having elevations in the order of 90m AHD. The existing dwelling is afforded expansive views, particularly to the north and north-east (over Byron Bay, Cape Byron and Tallow Beach).

…

2.3 Vegetation Characteristics

As illustrated on Plate 7, Council mapping indicates that the site contains a small area of High Conservation Value Vegetation and is located within a Wildlife Corridor which runs in generally an east-west direction. The existing dwelling and other areas associated with the proposed function centre are well removed from the vegetation community illustrated on the plan.

…

Development Proposal

3.1 Description of Development

…

3.1.2 Description of Typical Event

A. General

Each wedding will involve activity on the site over 4-5 days as outlined below. We note that “set up” and “pack up” of the events involve relatively low key activities and are unlikely to result in off-site impacts. Accordingly, the application has focussed on mitigating against impacts associated with the activities occurring on the day of the wedding.

3.1.3 Operational Management Plan

The proposed Rural Tourist Facility will be operated in accordance with an Operational Management Plan (OMP) which has been developed to ensure that impacts on the locality are minimised. A copy of the draft OMP is provided at Attachment 5. The OMP includes requirements such as the following:

•   Requiring the engagement of an agreed wedding planner to oversee the event and ensure compliance with the OMP

•   Requiring all guests to arrive by bus; and

•   Limitations on function times and noise generation.

Future clients (ie. the bride & groom) will be required to sign contracts linked to compliance with the OMP.

…

Assessment of Relevant Planning Instruments

…

4.2 Byron Local Environmental Plan 1988

4.2.1 Land Use Definition & Permissibility

The proposal involves the use of an existing dwelling as an occasional wedding function venue and holiday accommodation for up to 12 people associated with the wedding.

The proposed land use is defined as a “Rural Tourist Facility” pursuant to the Dictionary contained within the BLEP 1988. …

With respect to the proposed holiday accommodation, the application involves up to 12 people staying within the existing approved dwelling for three days on not more than 26 occasions per year. This aspect of the proposal will result in no external impacts and is considered to be low-scale and compatible with the rural locality. We note that the land use does not fit within the definition of “bed and breakfast” as the floor area of the dwelling exceeds that specified within the definition.

The proposed use of the dwelling and surrounds as an occasional wedding function centre fits within the description of “recreational purposes” as contained within the definition of Rural Tourist Facility. In this regard, we note that during Class 4 proceedings in the Land and Environment Court associated with the Freedman wedding venue (Rydge vs Byron Shire Council) AJ Lloyd considered the meaning of the term “recreation” within the “Tourist Facility” definition. Lloyd determined that “attendance at an enjoyable social gathering in a beachside setting with family and friends, whether as an incidence of holidaying or not, is within the scope of the word “‘recreation’”. Whilst this decision related to the “Tourist Facility” definition within the BLEP1988, it is reasonable to conclude that the interpretation is also applicable to the Rural Tourist Facility definition.

The proposed wedding functions will be subject to a detailed Operational Management Plan designed to ensure that each wedding will have minimal impacts on the amenity of the surrounding rural locality. Furthermore, as the proposal involves minimal permanent changes to the building and surrounds, when functions are not being held the site will revert to being a dwelling house.

Given the above, it is considered that the project fits within the definition of a Rural Tourist Facility. The suitability of this definition was confirmed at the DAP meeting held prior to the lodgement of the application.

4.2.2 Land zoning & Permissibility

…

Comment: The proposed rural tourist facility involves utilising an existing dwelling as an occasional wedding function venue and holiday accommodation associated with the wedding. This report demonstrates that the proposal will have adequate measures in place to ensure that the rural character of the locality is not adversely impacted by the proposal. The subject site is not actively utilised for agricultural production.

…

4.2.3 Clause 31 – Development on Ridgetops

…

Comment: The existing approved dwelling house is located on a ridgeline. No changes are proposed to the external built form of the dwelling as part of this application and accordingly no permanent visual impacts are expected as a result of the current proposal. The proposed location of the temporary marquee is immediately adjacent the existing pool area and provides convenient access between the various stages of a wedding function. The marquee is a single level structure which is commensurate in scale and form to the existing dwelling. Bamboo planted along the property boundary to the west of the marquee area provides a substantial vertical element as backdrop to the marquee area.

4.2.4 Clause 34 – Tourist Accommodation in Rural Zones

…

Comment: This application involves utilising the existing dwelling and surrounds on an occasional basis as a rural tourist facility [wedding function venue]. Given that no permanent changes are proposed to the external appearance of the dwelling, no additional landscaping or screening is required. The proposed minor upgrades to the level pads for overflow car parking will be screened from the road by existing bamboo plantings.

The Operational Management Plan will include strict requirements with respect to matters relating to noise and traffic generation. Compliance with the OMP will ensure that the project is compatible with the surrounding rural locality.

…

Comment: The site is removed from intensive rural land uses such as intensive agriculture, quarries or animal establishments and no adverse land use conflicts with such uses are envisaged. The Operational Management Plan includes a range of safeguards to minimise impacts on the surrounding locality.

…

4.3.3 Chapter 1 – C9 Motels, Hostels & Holiday Cabins

…

Item	Project Response
C9.6 – Landscaped Area	All existing landscaping associated with the dwelling and pool area will be retained

…

4.4.5 Clause 6.4 – Rural & Nature Based Tourism

…

Comment: This Statement of Environmental Effects demonstrates that the proposed Rural Tourist Facility is able to operate in a manner which is compatible with the surrounding rural locality. The proposed facility is of a scale that it is able to be managed by the site caretaker in conjunction with a wedding planner.

…

4.6 Deemed SEPP – North Coast Regional Environmental Plan

…

Part 2 Rural Development Division 1 – Agricultural Resources

12 Development Control – Impact of Development

Comment: The proposed development involves the use of an existing dwelling and its immediate surrounds as an occasional wedding function venue and associated holiday accommodation. The areas which are to be utilised currently serve no agricultural function and the proposal will not impact on the potential of other parts of the site to be utilised for agriculture in the future. The proposed venue is located approximately 80m from its closest (western) boundary and is buffered from that boundary by a significant clump of bamboo. Accordingly, it is unlikely that the project will impact on production on adjoining lands or the loss of prime crop or pasture land.

Part 6 Tourism and Recreation Division 1 – Tourism Development

75 Development Control – Tourist Development

Comment: This application demonstrates that:

…

•   no permanent changes are proposed to the external appearance of the building and as such the proposal will not be detrimental to the scenic or natural features of the area; …

4.7 S79C(i) Environmental Planning & assessment Act 1979 – Matters for Consideration

4.7.1 General

…

4.7.2 Noise Impacts

…

4.7.3 Economic Impacts

RPS Australia East Pty Ltd has prepared an economic assessment of the economic impacts of the “destination wedding” industry on the local economy of Byron Shire.

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4.7.4 Other Potential Impacts

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(c) the suitability of the site for the development

Primary Matters

Proposal

Does the proposal fit in the locality?

The proposed Rural Tourist Facility utilises an existing approved dwelling house and its surrounds. No substantial permanent works are proposed to accommodate the proposed development and accordingly there will be no significant permanent change to the landscape character of the locality.

The Operational Management Plan for the premises will ensure that off-site impacts (particularly those associated with noise and traffic) are minimised. Accordingly, it is considered that the proposal is compatible with the surrounding locality.

(d) any submissions made in accordance with this Act or the regulations

Local, State and Federal Legislation The report demonstrates that the proposal is consistent with the current LEP and DCP framework applicable to the site. Council will consider any community or government submissions regarding the proposal as part of the assessment of the application.

(e) the public interest

The public interest The Statement of Environmental Effects and associated technical reports demonstrate that the proposed development is consistent with the current planning framework for the site and is able to operate in a manner which does not adversely impact on the amenity of the locality. The Economic Assessment provided at Attachment 10 demonstrates that the “destination wedding” industry is a significant contributor to the economy of Byron Shire. The venue the subject of the current application will provide an additional venue for such events. Accordingly, the proposal is considered to be in the public interest.

Conclusion

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The grounds for this approval are summarised below:

• The proposal is in accordance with the relevant provisions of the Byron Local Environmental Plan 1988 and Byron Development Control Plan 2010;

•   The proposal involves the use of an existing approved dwelling and only minimal permanent changes are required to the structure to facilitate the development;

•   All clients of the wedding function venue (ie. the bride and groom) will be required to sign a contract requiring compliance with an Operational Management Plan. The OMP contains a range of measures designed to minimise impacts on the locality; and

•   The “destination wedding” industry is an important component of the local economy and contributes in the order of $54 million of direct tourism expenditure undertaken by the wedding parties and their guests.

23. The SEE attached a draft Operational Management Plan (OMP). The draft OMP required clients (ie the bride and groom) to comply with the OMP. Terms of the draft OMP addressed issues such as music and noise, guest parking, rubbish removal and cleaning, inter alia. The draft OMP stated that “compliance with the OMP is a condition of development consent”.

24. Also attached to the SEE was a Council letter to Ms Vikstrom dated 16 April 2014, which commented on the Development Advisory Panel meeting of 3 April 2014 concerning the DA. Under the heading “planning” appeared the comment that the proposed use “as described appears to be consistent with the definition of a rural tourist facility which is permissible within the zone subject to consent”. The SEE also attached a report from Tim Fitzroy & Associates dated 23 April 2014 assessing the on-site sewage management system, a bushfire threat assessment report dated 6 May 2014, a fire safety audit report dated 6 May 2014, a traffic impact report dated May 2014, a noise impact assessment by Tim Fitzroy & Associates dated 24 April 2014 and an economic assessment dated 25 March 2014.

25. The summary to the Assessment Report dated 13 October 2014 relevantly provided:

The proposed development seeks consent to use the existing dwelling and surrounding garden areas as a wedding reception up to 26 times a year. The applicants have also proposed to erect a wedding marquee for larger weddings of up to 120 guests, however smaller weddings up to 60 guests will be predominantly held in the dwelling and surrounding pool and deck areas. The house is also to be utilised for tourist accommodation for those attending the wedding. The proposal is defined as a rural tourist facility based on the recent court case between Rydge v Byron Shire Council whereby the Land and Environment Court found that the use of a tourist facility for weddings fitted within the term recreation. The Rural Tourist Facility like the tourist facility definition also includes the term recreation and as such use of the subject premises for a wedding would fall within the gambit [sic] of the definition in the same manner.

…

Noise, parking access, and location for marquee weddings were issues which were raised from objectors, however it is submitted these have been adequately addressed and conditions of consent have been recommended in terms of land scaping [sic], hours of operation, sound attenuation, number of large marquee weddings and noise management.

26. The Assessment Report relevantly provided:

1.   INTRODUCTION

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1.2   Description of the site

The subject site is legally described as Lot 2 DP 107115, and more commonly known as 440 Bangalow Road, Talofa. The property has an area of approximately 10.88 ha and is zoned 1(a) rural pursuant to Byron LEP 1988 and RU2 pursuant to Byron LEP 2014. The property is elevated with ocean views to the north and east of Byron Bay and surrounding hinterland. The property contains a large dwelling which has been meticulously renovated to take advantage of the views with an enclosed pool in a courtyard area. A small two bedroom caretakers residence is also attached as approved under DA10.2010.226.1.

Though the property is not heavily vegetated, it falls within a buffer to a bushfire prone area. The property is not affected by flooding or any other known hazards.

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3. SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

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3.1   STATE REGIONAL PLANNING POLICIES AND INSTRUMENTS

Requirement	Requirement	Proposed	Complies
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North Coast regional Environmental Plan 1988 Clause 12 Development control—impact of development on agricultural activities	The council shall not consent to an application to carry out development on rural land unless it has first considered the likely impact of the proposed development on the use of adjoining or adjacent agricultural land and whether or not the development will cause a loss of prime crop or pasture land.	The proposed development is within a rural area which is utilised for rural and rural residential purposes, including the grazing of livestock. It is also noted a rural tourists facility [sic] is located opposite the site at 409 Bangalow Road. The proposed use of the site for wedding functions on a limited basis and guests accommodation is unlikely to create a land use conflict. The property is not identified as containing prime agricultural land on council’s GIS.	Yes
Clause 75 Development control—tourism development	The council must not grant consent to tourism development unless it is satisfied that: (a) adequate access by road, railway or water transport (or any combination of them) exists or will be provided to service the development, taking into account the scale of the development proposed, and (b) if the proposal involves permanent residential accommodation, all social and community services reasonably required by those residents exist in close proximity to the development, and (c) the development will not be detrimental to the scenery or other significant features of the natural environment, and (d) reticulated water and sewerage are available, or arrangements satisfactory to the council have been made for the provision of those facilities.	The property is suitably accessed by Bangalow Road and is suitably serviced. Adequate arrangements have been proposed for the upgrade of the existing onsite sewage management system. Visually the proposal incorporates the erection of a marquee for larger wedding events. To mitigate such impacts Conditions of consent recommended to limit the number of large events when such a marquee is required to be erected and also to limit the number of days the marquee can be erected for.	Yes

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3.2 BYRON LOCAL ENVIRONMENTAL PLAN 1988

Zone: Zone No. 1(a) – General Rural Zone

Definition: rural tourist facility

LEP Requirement	Summary of Requirement	Proposed	Complies
Meets zone objectives	• encourage and permit a range of uses that maintains the rural character and environment; • minimise/avoid conflicting land use; • minimise traffic generating uses along main roads: and • development to conserve, protect and enhance the value of the fauna and flora.	The proposed development is unlikely to have an impact on the rural character of the locality or the environment. In terms of land use conflict with surrounding farming activities the intermittent use for weddings combined with general buffer distances to surrounding properties, it is considered a land use conflict is unlikely to arise. The existing driveway is to be realigned to improve access and egress from the property, and additional plantings as proposed will enhance the natural environment. The proposal is not inconsistent with the objectives of the zone.	Yes
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Clause 31 – development on Ridgetop	Where there is no alternative location for the development Council must consider whether: -   existing or proposed landscaping assists in mitigating visual impact; and -   building design, materials (including the reflectivity) and colours will mitigate adverse visual impact.	No permanent structures are being proposed, however the marquee used for weddings will be visual considering its location adjacent to the dwelling house. This is a relatively level area next to the dwelling, and although other sites are available on the property, they would require substantial earthworks to create a level pad. The applicant in mitigating any potential impacts is proposing substantial landscaping with advanced species around the marquee. It is considered the landscaping combined with the intermittent nature of the proposal is a satisfactory response having regards to the provisions of the Clause [sic].	Yes
Clause 34 Tourist Accommodation in rural Areas	Maximum 6 cabins rural holiday cabins on a single allotment of at least 20 hectares.	Although the proposal is for a rural tourist facility, the clause applies to development seeking consent for stand alone cabins[.]	N/A

Byron Local Environmental Plan 2014

…

It is considered the proposal being the erection of a temporary marquee and using the existing dwelling for wedding functions will not impact on using the land for primary production purposes or affect the natural resource base, should the land owner wish to carry out those activities on the land in the future … The property is being used for growing nursery stock, and the development will not affect that area of the property currently under cultivation. In terms of the rural landscape character and scenic landscape, the marquee although only temporary when in use is located on a ridge top. As discussed above the applicant is proposing additional plantings in and around the marquee to assist with screening the marquee when erected, whilst conditions of consent have been proposed in terms of the number of large marquee weddings and hours of operation including noise restrictions to ensure the amenity of surrounding neighbours is not adversely impacted on.

In relation to surrounding properties they are being used for rural, rural lifestyle and rural tourism purposes, with grazing of livestock being the main agricultural activity. The proposal incorporates suitable buffers for rural tourism purposes as per the DPI’s Living and Working in Rural Areas Guidelines and there is minimal potential for a land use conflict arising with surrounding farms from weddings being held on the land. Further restrictions are proposed in terms of the number of weddings per year and per month, hours of operation, numbers of guests, and sound restrictions to mitigate potential impacts on the amenity of the area. …

3.4   The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

Natural environment: The proposed development is located on cleared land and will not have a detrimental impact on the natural environment.

Built environment: No permanent structures are proposed. Conditions imposed limiting time frames for marquees when erected.

…

Socio-Economic Impacts: A general economic assessment of the local wedding industry has been provided with the application from RPS Australia. …

From the above analysis it is clear that the wedding industry plays a major part in the local economy which has a strong reliance on the tourism and hospitality sector. The report notes that for Council when considering the specific development it needs to have regard to the above benefits in balancing up issues of noise, neighbourhood amenity and traffic.

3.5 The suitability of the site for the development

…

Land Use Conflicts: Noise and amenity issues are the obvious potential conflict as discussed above, however there may be occasions where the property is affected by odour or noise form adjoining farms undertaking other agricultural pursuits. From an inspection of the site grazing of cattle appears to be the dominant activity in the area. In terms of the wedding venue as proposed these are more than 50 metres from adjoining properties which complies with the DPI Guideline – Living and Working in Rural Areas for residential, rural residential and rural tourist accommodation.

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5. CONCLUSION

…

Noise, parking, access, and location for marquee weddings were issues which were raised from objectors, however it is submitted these have been adequately addressed and conditions of consent have been recommended in terms of land scaping [sic], hours of operation, sound attenuation, number of large marquee weddings and noise management.

The proposed development is recommended for approval.

27. The Notice of Determination dated 13 October 2014 relevantly provides:

NOTICE OF DETERMINATION OF A DEVELOPMENT APPLICATION

Development Application No. 10.2014.230.1

Property description

LOT: 2 DP: 1071115

440 Bangalow Road TALOFA

Development

Alteration/Additions to existing dwelling and use as a rural tourist facility for the purposes of holding weddings and providing holiday accommodation for up to 12 occupants

Determination

Consent granted subject to the attached schedule of conditions

Date determined:

13 October 2014

…

CONDITIONS OF CONSENT:

Parameters of this Consent

1)   Development is to be in accordance with approved plans

The development is to be in accordance with plans listed below:

Plan No.	Description	Prepared by	Dated:
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14/045	Landscape Treatment Plan North West of Dwelling	Newton Denny Chapelle	11/9/14
…

…

The following conditions are to be complied with prior to issue of a Construction Certificate

…

11)   Sound fence

A 2.1 metre high sound fence to be erected on the north western side of the marquee to attenuate noise emanating from the marquee when used for wedding functions. The fence is to have no gaps in it, have a minimum length of 15 metres, and can be constructed from timber, concrete block, rock or other appropriate materials which have acoustic deadening properties. Details to be submitted with the construction certificate.

12)   Noise Management Plan

A Noise Management Plan must be submitted to Council for approval prior to the commencement of the development. The Noise Management Plan must be prepared by a suitably qualified acoustic practitioner and detail the methods that will be implemented for all the operations associated with the private wedding function activity to minimise noise impacts on the nearest affected dwellings. Information should include:

a)   identification of nearby residences and other sensitive land uses;

b)   assessment of expected noise impacts;

c)   detailed examination of all feasible and reasonable management practices that will be implemented to minimise noise impacts;

d)   strategies to promptly deal with and address noise complaints. This should include any records that should be kept in receiving and responding to any noise complaints;

e)   details of performance evaluating procedures (for example, sound checks on amplified music or public address systems);

f)   procedures for notifying nearby residents living within 500 metres of the property of forthcoming weddings, times that they are likely to notice noise emanating from wedding functions and the contact details for the onsite manager for complaints and queries to be made, and responded to.

g)   reference to all relevant consent conditions including hours of operation and number of guests;

h)   operational details about the use of any noise monitoring equipment to record sound pressure levels around the property;

i)   Measures [sic] to ensure speakers within the wedding marquee are faced away from neighbouring dwellings.

j)   name and qualifications of person who prepared the report.

…

The following conditions are to be complied with prior to occupation of the building

…

28)   Sound fence

A 2.1 metre high sound fence to be erected on the north western side of the marquee to attenuate noise emanating from the marquee when used for wedding functions. The fence to be erected prior to the issue of the occupation certificate.

29)   Landscaping

Landscaping and planting to be completed prior to the issue of the occupation certificate and in accordance with the approved plans. Other than the bamboo screen, species to be planted are to be predominantly natives endemic to the North Coast of NSW.

30) Operational Management Plan

The Operational Management Plan (OMP) to be amended to reflect the conditions of this approval and finalised prior to the issue of the Occupation Certificate. The final OMP to be submitted with the Occupation Certificate.

…

The following conditions will need to be complied with at all times

35)   Number of Guests

Guest numbers are restricted to 120 for marquee weddings and 60 for in-house weddings.

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37)   Bus transport for marquee weddings

Bus transport to be used and provided for marquee weddings to transport at least 50% of guests to and from the site.

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41)   No inference with the Amenity of Neighbourhood

The proposed use of the premises shall not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, dust, wastewater or otherwise. In particular:

a. The noise level emanating from the use of the premises in accordance with this development must not cause or permit “offensive noise” as defined by the Protection of the Environment Operations Act 1997 to impact upon neighbouring residential dwellings at any time.

b.   Only clean and unpolluted water is permitted to be discharged to any waters.

c.   All wastes shall be contained within appropriate containers fitted with a tight-fitting vermin-proof lid.

d.   All amplified music and public address systems must [be] operated so that they are not audible outside of the boundary of the property between 10.00 pm on any day, and 10.00 am on the following day.

e.   An approval to operate the on-site sewage management system shall be maintained for the on-site sewage management system. Any failure or overloading of the system which is likely to cause harm to the environment or a risk to public health shall be reported to Council within 24 hours of the pollution incident being detected by any person.

f. No private fireworks displays are permitted unless conducted by a licensed pyrotechnician under the Explosives Regulation 2013 and in strict compliance with all NSW Workcover Authority requirements. Neighbours with domestic pets or animals likely to be affected by the loud noise from fireworks shall be notified at least 24 hours before any private fireworks event so that they can make appropriate alternative arrangements.

42)   Number of Weddings

The number of weddings are limited to twenty six (26) per year with no more than thirteen (13) marquee weddings per year. No more than 2 marquee weddings to be held in any calendar month, and no more than 3 weddings in total to be held in any calendar month.

43)   Finishing time for weddings

For marquee weddings, all amplified music from Bands, DJ’s and the like to cease by 9.30pm with all guests (except those staying on the premises) to have left the site by 10.30pm. For in house weddings, amplified music to cease by 10pm and all guests (except those staying on the premises) to have left the site by 10.30pm.

44)   Other Parties, Gatherings and Celebrations

Any informal parties, gatherings or other celebrations the following day after or prior to the wedding day to be limited to the hours of 11am to 3pm. No “bucks nights” or “hens nights” approved.

45)   Marquees

Marquees are to be erected for no more than four days in a row, and are to be removed the day after the wedding.

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47)   Use of Dwelling for short term tourist accommodation

The dwelling may be used for short term tourist accommodation in association with weddings held on the property. No more than 12 guests to reside in the dwelling at any time.

Issue 1 – Permissibility under BLEP

28. The proposed use is for “occasional wedding function venue and holiday accommodation for up to 12 persons attending the wedding”. The Council granted consent to the DA for the purpose of “rural tourist facility”, an innominate permissible use in the 1(a) zone (General Rural Zone), in which the land is located. The Council considered that the proposed use of the property fell within “recreational ... purposes” in the definition of “rural tourist facility”. “Tourist facilities” are a nominate prohibited use in the 1(a) zone.

29. The amended summons relevantly stated:

a)   The first respondent sought development consent to permit it to hold weddings and wedding receptions and to provide accommodation for wedding guests on the Land (“the Use”).

b)   By the Development Consent, the second respondent purported to grant that development consent for the Use, as being for “recreation” permitted under the definition of “rural tourist facility” in Byron LEP 1988.

c)   “Tourist facilities” are specifically prohibited under the LEP by clause 4 in respect of the General Rural Zone.

d)   A “rural tourist facility” is a species of the genus of “tourist facilities”.

e)   Accordingly, on its proper construction, in prohibiting the use “tourist facilities”, the LEP also prohibits a “rural tourist facility”.

f)   Accordingly, the Development Consent for the Use is prohibited under the LEP and at law.

g)   Further, the second respondent erred in law in:

a.   failing to consider the application before it according to the proper construction of the uses permissible under the LEP; and

b.   failing to consider the provisions of LEP clause 4 in respect of General Rural Zone; and

c.   determining, without consideration of that matter and without any reasons, that the Use is a “rural tourist facility” in circumstances in which it accepted that the Use was a “tourist facility” within the principles in Rydge v Byron Shire Council [2012] NSWLEC 155,

and that the Development Consent could issue in respect of that Use.

h)   On the proper construction of the LEP and on the facts, the Use was not permissible, such that the Development consent is prohibited under the LEP and at law.

i)   In the alternative to paragraph 1(h) above, on the proper construction of the LEP and on the facts, the Use was not a “rural tourist facility”, such that the first respondent failed to consider the application before it as an application for the use for which consent was in fact sought. In the circumstances, the first respondent failed to deal with the application according to law.

j)   Further, in so determining the Development Consent, second respond [sic] committed jurisdictional error, such that the Development Consent is unlawful and invalid.

Applicant’s Submissions

30. On a proper construction of the BLEP the proposed use falls within the definition of “tourist facility”, which is a prohibited use in the 1(a) zone. The development is prohibited even if the proposed use also falls within the definition of “rural tourist facility”, which is permissible in the zone. The consent is therefore invalid.

31. The Council, in granting consent, considered that the decision of Lloyd AJ in Rydge v Byron Shire Council [2012] NSWLEC 155 required that the proposed use be categorised as “recreation”, and categorised it as “rural tourist facility”. This is a misunderstanding of Rydge. That case dealt with a development application for a wedding venue in the 2(t) zone (Tourist Area Zone), which permitted “tourist facilities” with consent. Lloyd AJ found that the proposed use was within “recreation”, and therefore within “tourist facilities”. Applying Rydge in this case leads to the conclusion that the consent is invalid.

30. Alternatively, to the extent that Rydge supports the conclusion that the use is “recreation” that decision ought not be followed. It is the context within which the activity is conducted that determines its character, see GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83 at [47]-[49]. The use “rural tourist facility” must have a real “rural” nexus or character. The proposed use does not have such a nexus or character.

31. “Rural tourist facility” is a species of the genus “tourist facility”. On a proper construction of the BLEP, the prohibition of the genus results in the prohibition of the species, see Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 at [16]-[24] and [33]. The definitions of “tourist facilities” and “rural tourist facilities” overlap in parts. Both definitions include reference to recreation or establishments for recreation, with other drafting differences. The words “may include” in the definition of “tourist facilities” indicate a broad reading of that definition, consistent with Rydge. The words “low scale” in the definition of “rural tourist facility” refer only to accommodation.

Respondent’s submissions

34. The Respondent submitted that the definitions of “tourist facilities” and “rural tourist facility” are mutually exclusive, and do not give rise to any “genus/species” relationship. This can be seen from the use of the words “or the like” in the definition of “rural tourist facility”. If it had been the draftsperson’s intention that the range of “tourist facilities” was not exhaustive, similar words (eg “or the like”) would have been used (see also for example the definitions of “animal establishment”, “environmental facilities” and “recreation establishment”). The words “or the like” apply to a wide range of activities, see Milano Convenience Store Pty Ltd v Meqdadi [2010] NSWLEC 29; (2010) 172 LGERA 255 at [51]. Those words were omitted from the definition of “tourist facilities”, see Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [43] and [44]. The two definitions thus function independently, and the permissible purpose (“rural tourist facility”) cannot be regarded as subsumed into the prohibited purpose (“tourist facility”), see Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147; (2013) 201 LGERA 116 at [28].

35. A “rural tourist facility” is distinguishable from a “tourist facility” as a “rural tourist facility” solely concerns “low-scale” uses. That is, “tourist facilities” and “rural tourist facilities” are independent, separately recognised and defined land uses in the BLEP. By way of example, in the 4(a) zone (Industrial Zone), “rural tourist facilities” and “tourist facilities” are both expressly and independently nominated as prohibited uses.

36. That the BLEP distinguishes between “rural tourist facilities” and “tourist facilities” must have been intentional. The only way in which the independent definition of “rural tourist facility” can be given any work to do, in the context of the BLEP and in particular in the 1(a) zone, is to approach the interpretation of those two terms in this manner. That approach is also consistent with a plain reading of the two terms and a contextual analysis, see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39].

37. On a proper interpretation of the BLEP and the definitions of “rural tourist facility” and “tourist facility”, it becomes apparent that the proposal, being characterised as a “rural tourist facility”, as defined in the Dictionary to the BLEP, was and is a permissible land use with development consent under the EPA Act, because it has not and cannot be established that the proposal satisfies the definition of a “tourist facility”. One should not be diverted by the bare labels of “tourist facility” and “rural tourist facility”, but rather should examine the definitions and decipher how the entire BLEP works.

38. A contextual analysis and reading of the BLEP does not support the Applicant’s position. The objectives of the 1(a) zone support the Respondent’s case. Further contextual support for this conclusion is demonstrated by the fact that all of the rural zones in the BLEP wholly prohibit “rural tourist facilities” except for the 1(a) zone, as set out in annexure A to the Respondent’s written submissions. The chapeau of cl 34(3) of the BLEP completes this contextual analysis, because the chapeau makes plain that there must be rural zones where rural tourist facilities are permissible. By logic of deduction, therefore, rural tourist facilities must be permissible in at least one rural zone – the only rural zone where rural tourist facilities are not wholly prohibited is the 1(a) zone. Additionally, in the 4(a) zone, “rural tourist facilities” and “tourist facilities” are both expressly and independently nominated as prohibited uses. Contextually, again the only available objective interpretation of the BLEP is that it seeks to distinguish between these two different land uses.

39. The Court is entitled to give weight to the opinion of the Council on the question of permissibility, per Woolworths Ltd v Pallas Newco Pty Limited [2004] NSWCA 422; (2004) 61 NSWLR 707 at [88].

40. The reference in the Assessment Report to the decision in Rydge was correct. Rydge confirms that a “wedding” falls within the ambit of “recreation” for the purposes of the term “tourist facility”. To the extent Rydge supports a finding that the definition of “tourist facility” is not exhaustive, it should be distinguished as it dealt with a different context.

Proposed Use Permissible as “Rural Tourist Facility”

41. Whether a development is prohibited by a local environmental plan (LEP) determines whether a council has power to approve it per Sammut at [16]-[29]. The Applicant argues the development approved in this case is a tourist facility, a prohibited purpose in the 1(a) General Rural Zone. The parties agree that unless the use for which the consent was granted was for the purpose of a “rural tourist facility” not “tourist facilities” the consent is invalid.

42. The issue of whether “rural tourist facility” and “tourist facilities” are mutually exclusive is one of statutory construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. French CJ (in a separate judgment but agreeing with the orders of the joint judgment) stated similarly at [4]-[5]. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of [1981] HCA 26; (1981) 147 CLR 297 at 305. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ.

43. Section 33 of the Interpretation Act 1987 (NSW) requires a construction that promotes the purpose or object of an Act or statutory rule over one which does not. While I note that the Interpretation Act appears to distinguish between a statutory rule and an environmental planning instrument in the definition of “instrument” in s 3 and in the separate definitions of commonly used works and expressions in s 21, a purposive approach to construction is to be preferred to the extent such an approach can assist.

44. A LEP is delegated legislation and should be interpreted in accordance with the general principles of statutory construction per McColl JA (Beazley JA agreeing) in Cranbrook at [36]. While the principles of statutory construction referred to immediately above apply, the instrument should also be read in a practical manner, as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] by Leeming JA citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. Importantly, a LEP must be construed as a whole so that the context for the provisions in issue is understood per McColl JA in Cranbrook at [36]. As will become clear in my reasoning there are substantial difficulties in construing the BLEP before me to give it coherent and logical effect.

45. Definitions in a LEP were also considered in Cranbrook McColl JA citing the following at [38]-[40]:

38   In Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635, Barwick CJ, McTiernan and Taylor JJ stated:

“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way … the effect of the Act and its operation in relation to dividends as defined by the Act must … be found in the substantive provisions of the Act which deal with ‘dividends’.”

39   Gibb underlines the proposition that the meaning of a definition turns on the context in which it appears, considered as a whole: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108 per Mahoney JA; Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 79 ALJR 1079 at [26] per McHugh J. As McHugh J explained in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103]:

“‘[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment ... [O]nce ... the definition applies, ... the only proper ... course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment ... [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.” (emphasis added)

40   It should also be recognised that even though the words “unless the contrary intention appears” do not appear in a definition section, they are implied: Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Hall v Jones (1942) 42 SR (NSW) 203 at 207-8. This also ensures that a definition is not interpreted in a manner which would defeat a meaning required by the context: Betella v O’Leary [2001] WASCA 266 at [13] per Burchett AUJ (with whom Wallwork and Wheeler JJ agreed).

46. While construction of a LEP commonly starts with statutory definitions the need for caution in the application of definitions is identified in Cranbrook at [38]-[40] as quoted immediately above. It is important to look at the context of the BLEP. The 1(a) zone is the only zone where a rural tourist facility is permitted in the BLEP. “Rural tourist facilities” and “tourist facilities” are expressly and independently nominated as prohibited purposes in the 1(b1) zone (Agricultural Protection (b1) Zone), the 1(c1) zone (Small Holdings (c2) Zone), the 2(a) zone (Residential Zone) and the 4(a) zone (Industrial Zone). This separate treatment in the BLEP of “rural tourist facilities” and “tourist facilities” distinguishes between these two different purposes.

47. Importantly, cl 34(3) of the BLEP specifies a number of matters that the Council must be satisfied of before consent for the purposes of “rural tourist facilities” can be granted. Subsection (1) provides that cl 34 is to apply to all land within rural zones where rural tourist facilities are permissible. As “rural tourist facility” is expressly or impliedly prohibited in all zones but the 1(a) zone, the Applicant’s approach would render cl 34 of the BLEP otiose, as the Respondent contends.

48. A Court must strive to give effect to every word of a provision in an Act, per Project Blue Sky at [71]. The same may also be said in respect of every provision of a LEP. As Gummow J (Hill and Cooper JJ agreeing) stated in Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574:

... the Court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In A.M.P. Inc. v Utilux Pty Ltd (1972) RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result. See also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321, per Mason and Wilson JJ, and Occidental Life Insurance Company of Australia Limited v Life Style Planners Pty Ltd [1992] FCA 549; (1992) 38 FCR 444 at 449-450, per Lockhart J.

49. The BLEP should be read in such a way that the 1(a) zone and cl 34 is given effect, should such a construction be available. The only way “rural tourist facility” and cl 34(3) can have any work to do is if “rural tourist facility” is separate from “tourist facilities”.

50. Recreation/recreational appears in both definitions. Both parties embrace or at least do not dispute the broad meaning given to the term “recreation” in the definition of “tourist facilities” in the same LEP in Rydge at [16]-[19] which term was found to include attendance at an enjoyable social gathering in a beachside setting with family and friends whether incidental to holidaying or not. Lloyd AJ was determining whether the proposed wedding use was for the purpose of “tourist facility” in the 2(t) Tourist Area zone. His Honour determined firstly that the definition of “tourist facilities” was not inclusive at [15]-[16] and should be read as “an establishment providing (i) holiday accommodation or (ii) recreation”. Secondly, in considering recreation as a separate purpose, recreation included weddings. The proposed wedding venue and use the subject of that case was found to be recreation at [19] and permissible as a tourist facility.

51. “Rural tourist facility” did not feature in his Honour’s consideration as presumably, it was not identified as relevant by the parties. A “rural tourist facility” was an innominate prohibited purpose in the 2(t) zone. The reasoning in relation to the broad scope of “recreation” can be accepted. The Applicant also relies on Lloyd AJ’s conclusion that the wedding venue and use was for the purpose of a “tourist facility” and also contends that as Rydge dealt with a wedding use that was smaller in scale than the proposed use in this case the proposed use must be for “tourist facilities” not “rural tourist facility”. The Respondent urges however that Rydge should otherwise be distinguished as Lloyd AJ was not asked to consider the construction issue before me of whether the definitions of “tourist facilities” and “rural tourist facility” in the BLEP are mutually exclusive.

52. A finding that the “tourist facilities” definition is not inclusive is contrary to the finding of Lloyd AJ. I would depart from Rydge only if demonstrably wrong (in the interests of judicial comity) or on the basis that Rydge should be distinguished. The view of the Council as recorded in Rydge at [19] was that the wedding use in that case was permissible as a tourist facility. I do not have the benefit of the Council’s submissions on the issue of construction of the BLEP in this matter as it has filed a submitting appearance. The discussion of Rydge in the SEE (section 4.2.1, extracted above at par 22) for this DA does not refer to that part of the judgment which concluded that the “tourist facilities” definition is not inclusive. The discussion of land use definition and permissibility refers only to the finding in Rydge on “recreation” and states that the same conclusion can be applied to the “rural tourist facility” definition. The construction issue before me is not referred to.

53. If I accept the Respondent’s case in this matter so that its approved wedding activity is lawful as a rural tourist facility and not a (prohibited) tourist facility this decision is arguably in conflict with Rydge, an undesirable outcome in that uniformity in the application of a BLEP is desirable in the interests of certainty of outcome inter alia but a result that may be unavoidable.

54. Turning to the definition of “rural tourist facility” the Respondent contends that “or the like” in the definition of “rural tourist facility” suggests the definition is exclusive and other uses can be included if they meet the definition of recreational or educational. The Applicant submitted that “may consist of” in the definition of “rural tourist facility” is not inclusive but this ignores “or the like”. As the Respondent submitted relying on Milano at [51] the words “or the like” in the definition indicate that a “rural tourist facility” can extend to a wide range of activities. The words “or the like” should be given their ordinary and grammatical meaning. “Bed and breakfast establishment, boat landing facilities, environmental facilities, holiday cabins, horse riding facilities, a picnic ground, a primitive camping ground or a restaurant or the like” do not limit nor are they an exhaustive expression of the uses that may be considered to be for the purpose of a “rural tourist facility”. While the statutory words in question in Milano were “and the like”, the same expansive interpretation of “or the like” has been applied in other cases, see for instance McMaster v Wagga Wagga City Council [2009] NSWLEC 1237 at [16]-[17]. It is relatively straightforward to conclude that this wedding venue and use can be considered a rural tourist facility given the provision of low scale holiday accommodation as part of the proposal (which I refer to in more detail below).

55. The most difficult construction question is whether the wedding use is also for the purposes of a tourist facility (as found in Rydge), a nominate prohibited purpose in the 1(a) zone. A “rural tourist facility” would be impermissible in the 1(a) zone despite being identified as permitted as an innominate purpose requiring development consent. It is necessary to consider both definitions and not view each in isolation. Contrary to the Applicant’s submission, there is no statutory construction basis for finding that “or the like” should be equated with “may include” in the definition of “tourist facilities” not least because they are different words.

56. Whether the definition of “tourist facilities” is inclusive or exclusive determines if a wedding use can fall into both categories. The challenge of construing “means” and “includes” are identified in DC Pearce & RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) at [6.60]–[6.64]. In Cranbrook the meaning of “includes” was considered at [41]-[45] and “includes” was found not to be inclusive when considered in the context of the statute as a whole as follows in part:

41   The primary judge’s finding that the definition of “community facility” was exhaustive turned on his application of the second of Lord Watson’s statements in Dilworth v Commissioner of Stamps [1899] AC 99 at 105 – 106 concerning the alternative meanings of the word “includes” in a definition clause that:

Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 where McClellan J set out at 266 – 267 [37] a distillation of the principles in Hale and Weal including:

the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried;

when exercising its decision-making power, an administrative body must give “proper, genuine and realistic consideration” to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSWLR 601;

legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;

generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it; …

85. The words “proper consideration” and “satisfaction” as used by the Applicant are similar to the formulation of “proper, genuine and realistic consideration”. There is need for caution as such formulations “risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review”, per Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79]. The authorities cited in Hastings above, Walsh at [57], Bruce v Cole at 186E and Kindimindi again at [73] and [75] are to similar effect. The immediate answer to this aspect of this ground is that cl 31 is expressly and correctly identified in the compliance table in the Assessment Report. The assessing officer was clearly aware of the clause and its requirements and addresses it in his evaluation of compliance as set out in the table. This material suggests there was no failure to consider the clause.

86. Somewhat confusingly because it is usually a separate ground of review, the Applicant also submits that compliance with cl 31 is a precondition to the grant of development consent as it states that the Council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline unless no alternative location is available. If no alternative location is available then subcll (a) and (b) must be considered before consent can be granted. The Applicant relied on Hortis at [53]-[54] and South East Forest Rescue at [90] where the respective clauses were identified as preconditions which had to be met in order for development consent to be granted. The clauses of the LEPs in issue in both cases were of a similar character to cl 31. I agree with the Applicant that is the effect of cl 31.

87. Hortis considered earlier decisions of Franklins Ltd v Penrith City Council [1999] NSWCA 134 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 in relation to the drawing of inferences where no specific reference was made to the mandatory precondition in the relevant LEP in the material before elected councillors. In Currey the Court of Appeal held that the inference of satisfaction should not be drawn where the officer’s report to the council simply referred to the relevant clause without further discussion in the context of the particular DA. In Franklins also in the Court of Appeal none of the material before the elected councillors made reference to the relevant clause compliance with which was required before consent could be granted. That gave rise to a conclusion that the council failed to form the requisite opinion of satisfaction in the absence of any evidence to the contrary. In Hortis the Court of Appeal did not overturn the Land and Environment Court finding that the council had failed to form the necessary satisfaction about a required precondition to the grant of consent, namely that the council was satisfied the development would not have a detrimental effect on the foreshore scenic protection area. The absence of express reference to the effect of the relevant clause gave rise to the inference that the council did not consider the clause. These cases required a close consideration of what documents were before the elected councillors and what inferences if any could be drawn from any absence of reference to the effect of a clause which was a mandatory precondition to the granting of development consent.

88. A council’s file is taken to be within the constructive knowledge of council officers unless evidence to the contrary is adduced, per Schrodersv Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130 at [7(c)] and [24]. In Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] the Court of Appeal in affirming the Court below also held that material in the possession of a council will generally be treated as being in the possession of individual councillors, citing Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 31. These principles have been applied since, for instance in Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182 at [109] and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [126]. I disagree with the Applicant’s assertion that the Court must look at the Assessment Report only and no other material on the Council’s file. No authority supporting that approach has been provided. That assertion is contrary to the authorities referred to immediately above which require that evidence must be brought forward by a party which is asking for an inference to be drawn that the Council’s file was not considered by a decision maker. No such evidence has been brought by the Applicant.

89. An example of where the negative inference was drawn is South East Forest Rescue. Preston CJ held there was a failure by an elected council to consider a clause which was a precondition to the exercise of the power to grant development consent. The collegiate body failed to take into consideration relevant zone objectives or form the required mental state of satisfaction that the development was consistent with those objectives. There was evidence that no councillor had read the council’s file.

90. The facts of this case are different to Hortis and South East Forest Rescue and the usual inference of constructive knowledge of the council’s file by the decision maker applies. Accordingly, the whole of the Council’s assessment as identified on the Council’s file can be considered which includes the assessing officer undertaking at least two site visits to the location, the second because he was concerned about site impacts. The assessing officer was clearly aware that cl 31 had to be satisfied and that he considered that alternative locations for the marquee pad were not reasonably or practically available. His views were accepted by the officer exercising the delegation. The Assessment Report extracted above at par 26 identifies that the assessing officer did turn his mind to the issue of “no alternative location”. That Report indicates that while other sites for the marquee pad were available on the land, they would require substantial earthworks to create a level pad. The Applicant emphasised this phrase to conclude that the precondition in cl 31 that there be “no alternative location” is not satisfied.

91. I adopt the Respondent’s submission that on its proper construction, cl 31 of the BLEP does not require that there be no “other locations” in absolute terms, because theoretically at least, there would always be “other locations” for a proposed building. If cl 31 were to operate in that way, the exceptions and provisos in the clause would never have any work to do. Provisions in delegated legislation must be interpreted practically (see Tovir at [54]) and to give effect to every provision wherever possible. The word “alternative” should be sensibly construed. If, on a planning merit assessment, the only other locations for the temporary marquee would require substantial earthworks, and/or the temporary marquee is proposed to be used in conjunction with the existing dwelling, it is reasonable for the assessing officer to conclude those locations are not “alternative locations” for the purposes of cl 31.

92. An “alternative” location must be a location which can, on planning merit grounds, accommodate “a building” or “the carrying out of other development”. If substantial earthworks are required before a temporary marquee can be erected at a location, it is within the Council’s power to determine that is not an “alternative” location for the purposes of cl 31. On a proper and fair reading of the Assessment Report that was the factual finding made by the Council officer Mr Larkin at section 3.2. The Applicant's critique of these conclusions impermissibly trespasses into a merits review of the consent.

93. Further the Applicant offered no evidence that there were “alternative locations” for the temporary marquee within the meaning of cl 31 of the BLEP (as opposed to “other locations”).

94. The Applicant contended that even if the “no alternative location” precondition had been satisfied, Council’s consideration of the objectives in subcll 31(a) and (b) were required for the granting of a valid consent and this did not happen. The Applicant submitted that the Council could not have been satisfied of cl 31(a) without having before it any proper landscaping plan or details about plant species. The Council it was also submitted gave no consideration to the design, height, bulk, colour or reflectivity of the marquee, as it was required to do so by cl 31(b). Furthermore, characterising the marquee use as being of a “temporary nature” was incorrect. I disagree. A plain and ordinary meaning of subcll 31(a) and (b) in context identifies that these are objectives to be considered by the Council, rather than a specific condition that must be met in the manner contended for by the Applicant. There is no stipulated requirement for landscaping plans or plant species in the section. The Council must be properly informed to enable it to consider the objective but the section does not specify how that is to occur. The Assessment Report above at par 26 identifies in its consideration of cl 31 that the Respondent proposed substantial landscaping with advanced species around the marquee pad so as to mitigate any potential impacts. A landscape plan was in fact submitted (see above at par 18). The Council considered the landscaping combined with the intermittent nature of the proposal was a satisfactory response to the provisions of cl 31, matters within the proper execution of its assessment function.

95. The Council’s file contains the steps taken by the assessing officer leading to the conclusions in the Assessment Report. In September 2014 Mr Larkin, after visiting the land, expressed concerns to Ms Vikstrom as to whether the DA complied with cl 31. He agreed with a submission that the marquee could be viewed from afar. Mr Larkin proposed a number of measures to mitigate the visual impact, including use of screening vegetation and other arrangements in terms of colour, but he understood that a brown or green marquee was likely inappropriate with the proposed use. Mr Larkin and Ms Vikstrom organised a site visit of the land, which culminated in a plan illustrating the proposed landscape screening of the marquee pad, as identified above at par 17-18. The consent included in condition 1 a requirement that the development be in accordance with, inter alia, plan no 14/045 “Landscape Treatment Plan North West of Dwelling” prepared by Newton Denny Chappelle on 11 September 2014 (see above at par 27). In these circumstances, there is evidence of real consideration by the Council through its officers of the matters required by subcll 31(a) and (b).

96. The terms of the clause do not require the Council to consider cl 31(b) to the degree of particularity contended for by the Applicant. The Applicant’s criticism of the consideration of the marquee as temporary is difficult to understand given that is what was proposed and appears to take the consideration of the Council out of context.

97. The “temporary nature” of the marquee was one of several factors that the Council considered in determining compliance of the DA with cl 31. The matters required to be considered by cl 31 were matters of merit within the subjective consideration of the Council. The conclusions arrived at after this consideration were not demonstrably absurd or unreasonable in the Wednesbury sense, see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; (1947) 45 LGR 635.

98. I agree with the Respondent that the Applicant's case involves an impermissible “fine tooth comb” approach to a reading and understanding of the Council’s Assessment Report. The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons under challenge must be read as a whole and must be fairly read, per De Luca v Simpson [2012] NSWSC 960; (2012) 193 LGERA 1 at [118], citing and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 and Teys at [93].

99. It is clear that the council officers gave real consideration to the matters required in cl 31 of the BLEP in assessing and determining the proposed use as the Respondent submitted. This conclusion is apparent from a consideration of the totality of the Council’s file as well as the Assessment Report. This ground of review is not established.

Issue 4 – Alleged failure to consider cl 34 of the BLEP

100. The amended summons relevantly stated:

a)   Clause 34 of Byron LEP 1988 applied to the second respondent's assessment of the development application and it prevented the second respondent from issuing the Development Consent unless the second respondent was satisfied that:

a.   the Use proposed incorporates adequate landscaping and screen plantings for visual amenity when viewed from other land in the location;

b.   the Use will have no adverse effect on uses of lands in the vicinity of the Land; and

c.   there will be no adverse visual impact on the Use on the landscape.

b)   The second respondent failed to properly consider clause 34 and the matters as required by clause 34. Rather, it considered that because the marquee development was limited and temporary (and without fully considering the extent of that temporary nature), the Use incorporated adequate landscaping and screening, and was therefore permissible.

c)   Further, the second respondent could not on the material before it and on the facts as existed have been satisfied that the Use would have no adverse effect on the uses of lands in the vicinity of the Land or that there would be no adverse visual impact on the landscape.

d)   Accordingly the second respondent could not lawfully issue the Development Consent and the second respondent committed jurisdictional error in failing to so find, such that the Development Consent is unlawful and invalid.

Applicant’s Submissions

101. The Assessment Report relied upon by Mr Larkin in his determination of the DA under delegated authority misstates the requirements of cl 34. It specifically advises that the clause relates only to stand alone cabins and wrongly notes that compliance is not applicable. In the circumstances, the Council could not have considered the clause and its effect. It could not have reached the required level of satisfaction necessary to permit consent, see Hortis. It therefore committed jurisdictional error.

102. Clause 34(3)(b) required the Council to be satisfied in order to grant consent that the proposed use incorporated adequate landscaping and screen plantings for visual amenity when viewed from all public roads, dwelling houses and other land in the locality of the development. The Council did not embark on the required enquiry. It considered only the issue of landscaping and screen plantings from the locations of objectors and did not undertake the necessary enquiry of when the site was viewed from public roads and other land in the locality as required by cl 34(3)(b). There are a number of vistas from the marquee which simply have no screening at all, and were not considered.

103. Clause 34(3)(d) required the Council to be satisfied that the proposed use would have “no adverse effect” on the present and potential use of lands in the vicinity of the subject site in order to grant consent. It was therefore a condition of the power to grant the consent that the Council embark upon an enquiry as to the effect which the proposed use would have on the present and potential use of lands in the vicinity of the subject site. The Council did not embark upon that enquiry. It did not satisfy itself that there was “no adverse effect” on the present and potential use of those lands as required as a condition of validity. Rather, the Council considered that the temporary nature of the marquee and the proposed landscaping, inter alia, was an acceptable impact on neighbours.

104. Clause 34(3)(e) provides that the Council can only grant consent where it is satisfied that the proposed use would have “no adverse visual impact” on the landscape. The Council failed to consider and to be satisfied that there was “no adverse visual impact” as required.

105. When addressing other requirements of the planning instruments, the Council determined that there was an adverse visual impact which was expected to be mitigated by landscaping and screening measures proposed. Such a conclusion is inconsistent and logically incompatible with any suggestion that the Council was satisfied that there was no visual impact of the use, because it had been eliminated by those measures. It follows from that conclusion, and is apparent from the evidence, that the Council was satisfied that there was an adverse visual impact, and therefore that the consent should not have been granted. Furthermore, the Council incorrectly characterised the marquee use as being of a “temporary nature”. The Council granted consent without having before it any proper landscape plan or any details as to planning species, size or density.

106. The requirements that there be “no adverse effect” and “no adverse visual impact” as referred to in subcll 34(3)(d) and (e) do not permit any weighing up of the level or type of adverse effect or impact. They do not permit any consideration of competing costs and benefits. They do not involve any consideration of reasonableness. They do not call for consideration of steps taken to mitigate any visual impact, unless those steps result in no such impact at all. Only if the Council is satisfied that there is no adverse effect at all and no adverse visual impact at all, is the consent permissible, see Eden Valley Holdings Pty Limited v Blue Mountains City Council [2014] NSWLEC 1258 at [64], [67]-[69], [146], [147], [148] and [155]-[157].

107. The Council failed to attain the required satisfaction and failed to embark on the enquiries necessary to attain that level of satisfaction.

Respondent’s submissions

108. A fair and proper reading of the substance of the Assessment Report indicates and expressly identifies that the Council was clearly aware of and cognisant of cl 34. Although it is true that the BLEP compliance table contained in that Report only identified the matters in cl 34(2), the substance of the matters in cl 34(3) were extensively considered in the assessment process, as evidenced by the documents in Council's possession at the time of the grant of the consent, and fully considered and assessed in the Assessment Report.

109. Therefore, a fair and proper reading of the substance (see Hill at [53]) of the Assessment Report and documentation (see Gilbank v Bloore (No 2) [2012] NSWLEC 273 at [48]-[61]) reveals that the Council addressed and dealt with the broad cl 34(3) considerations otherwise than via an explicit discussion in the compliance table. Such an approach is entirely lawful and not capable of legitimate critique in judicial review proceedings. The Applicant's attack impermissibly trespasses into the merits of the Council’s consideration of cl 34(3), per Walsh. Further, illogicality or “manifest unreasonableness” has not been pleaded, however even if it were, there is no evidence supporting such an allegation and it would fail the very high and stringent threshold required to establish that ground.

108. Even if the Applicant’s submission was correct, it must demonstrate that Council’s error was material to its ultimate decision. The Applicant’s case involves an impermissible “fine tooth comb” approach to a reading and understanding of the Council’s Assessment Report. In the circumstances of this case, the Applicant cannot satisfy the legal and factual burden it bears of proving this ground of challenge.

No failure to consider cl 34 of the BLEP

111. Clause 34 of the BLEP considers “rural tourist facilities” which are permissible within rural zones. It is not confined by the heading “tourist accommodation”. The chapeau to subcl (3) states that the Council may grant consent for rural tourist facilities in rural zones only where satisfied of certain matters. The amended summons partially extracted above at par 100 raises statutory construction issues in relation to cl 34. It alleges that the Council had to be satisfied of matters in cl 34(3)(b) (incorporation of adequate landscaping subcl (a)a), cl 34(3)(d) (no adverse impact on rural use, subclause (a)b) and cl 34(3)(e) (no adverse visual impact, subclause (a)c) before consent could be granted.

112. The Applicant’s case was framed primarily as a failure to consider specified matters and that is what I will largely address in my finding. The issue as identified in subcl (b) (failure to properly consider cl 34) runs the risk of being a challenge to the merits of the Council’s decision, which is not susceptible to judicial review for the reasons identified above at par 84-85.

113. The Applicant’s case focusses selectively and impermissibly on the compliance table in the Assessment Report (at section 3.2, extracted above at par 26) which refers to cl 34 and states in the Summary of Requirement column “maximum 6 cabins rural holiday cabins on a single allotment of at least 20 hectares” that “although the proposal is for a rural tourist facility, the clause applies to development seeking consent for stand alone cabins”. These sentences are clearly a reference to cl 34(2) as the terms of the subsection are reflected in the compliance table.

114. As already stated in the context of cl 31 at par 88 the whole of the Council’s assessment process as identified on the Council’s file including the Assessment Report can be considered in order to determine if matters relevant to subcll 34(3)(b), (d) and (e) were considered. As the Respondent identified, if the substance of a provision is considered it does not matter if the actual provision is not specified, per Hill at [53]. While there is no specific reference to cl 34(3) in the Assessment Report there is elsewhere on the Council’s file and as I discuss below the substance is considered. As the Respondent’s submissions summarised at par 108 which I agree with entirely provide, it is important to consider the whole of the Council’s assessment process and not focus on one line in the compliance table in the Assessment Report as the Applicant’s submission does.

115. As annexure B to the Respondent’s written submissions identified, the substance of cl 34 was considered based on the Council’s file (in addition to the Assessment Report) in several ways. In the context of cl 31 the SEE stated that no permanent visual impacts were expected as a result of the proposed development. The SEE, partially extracted above at par 22, specifically referred to and commented on the requirements of cl 34(3).

116. The draft OMP was attached to the SEE, see above at par 23. That draft OMP recognised the capacity for music and noise impact on neighbours. Condition 30 of the consent required the OMP to be amended to reflect the conditions of approval and the final OMP to be submitted with the Occupation Certificate. The Engineering Referral and Assessment Sheet dated 19 May 2014 demonstrated that the Council considered measures to mitigate impacts including a 12 month trial, the OMP and a maximum number of guests. The Environment Referral and Assessment Sheet dated 19 May 2014 specifically identified “land use conflicts”, which were considered unsatisfactory due to noise impacts. That document relevantly recommended refusal of the development “if it cannot be demonstrated (via a noise management plan) that the noise impacts can be adequately managed for the lifetime of the development”. Draft conditions of consent in the Environment Referral and Assessment Sheet included restriction on use, hours of operation, noise limitations and a noise management plan.

117. The Council also had before it submissions on the development proposal, mainly by way of objection, which included statements that the proposal was inconsistent with the rural character of the area and expressly referred to cl 34. A letter from Mr Larkin to Ms Vikstrom dated 31 July 2014 stated that the Council was considering the parameters of noise, number of events and hours of operation proposed by Newton Denny Chapelle. Mr Larkin requested further information concerning characterisation.

118. A letter from Mr Chapelle of Newton Denny Chapelle to the Council dated 20 August 2014 addressed noise management, number and type of events and characterisation of the use. In an email from Mr Larkin to Ms Vikstrom dated 2 September 2014 Mr Larkin specifically considers the visibility of the marquee and other options available such as landscaping, and using different colours and materials. Mr Larkin offered to meet on site. Email correspondence dated 9 September 2014 foreshadows a meeting on site. On 11 September 2014 Mr Larkin undertook an additional site visit and met Ms Vikstrom of Newton Denny Chapelle and a landscaper (see above at par 17-18). That site visit resulted in a proposed landscape plan for the visual and acoustic screening of the marquee pad, which was sent to the Council on 22 September 2014. That plan formed part of condition 1 of the consent. Mr Larkin proposed a condition that landscaping and planning were to be completed prior to the issuing of the occupation certificate and in accordance with approved plans, which became condition 29 of the consent.

119. All of that material informed the Council officer’s assessment of the DA which included matters relevant to subcll 34(b), (d) and (e).

120. In annexure B the Respondent also identified that the substance of the relevant provisions of cl 34(3) had been canvassed in the Assessment Report, which is partially extracted above at par 26. Clause 34(3)(b) provides that consent may be granted where the Council is satisfied that “the proposal incorporates adequate landscaping and screen plantings for visual amenity when viewed from a public road or dwelling-house on other land in the locality”. The summary of the Assessment Report identifies that the location for marquee weddings, inter alia, were issues raised by objectors and that the conditions of consent had been recommended in terms of landscaping. Addressing the requirements of cl 75(c) of the NCREP that “the development will not be detrimental to the scenery or other significant features of the natural environment”, the Assessment Report recommends conditions to mitigate visual impacts such as limiting the number of large events that require use of the marquee and the duration of its use.

121. The Assessment Report comments on the 1(a) zone objectives in the BLEP and the RU2 zone (Rural Landscape) in the BLEP 2014 at section 3.2 and states that land use conflict is unlikely to arise due to the intermittent use for weddings combined with general buffer distances to surrounding properties. In the context of cl 31, there is extensive consideration of the landscaping and what is required with regard to the marquee in terms of landscaping. There are further references to landscaping in the context of the 1(a) zone objectives and in the consideration of public submissions. Additionally, the consideration of the RU2 zone objectives in the BLEP 2014 refer to the additional plantings proposed to screen the marquee. This directly addresses the requirements of cl 34(3)(b).

122. The Applicant also criticised the assessment on the basis the marquee could be seen from the public road and there was a visual impact. As the Respondent submitted, it was not necessary for the assessing officer to use the words “viewed from a public road” in the Assessment Report because the material on the Council’s file addressed the visual impact as required by the subclause. In any event, the material on the Council’s file establishes that landscaping was considered and the assessing officer was clearly aware of the location having visited the site more than once. This argument is really an impermissible merit issue. No failure to consider the matters referred to in cl 34(3)(b) is established.

123. The issue identified by the Applicant in oral submissions in relation to cl 34(3)(d) was largely the potential negative impact of fireworks on cattle grazing on the Applicant’s land. This issue is also identified in issue 6 below. For the reasons stated below at par 137-138 this potential land use conflict issue lacks legal and factual substance. To the extent that any additional issue was raised in oral and written submissions of the Applicant, cl 34(3)(d) provides that consent may be granted where the Council is satisfied that “the proposed development will have no adverse effect on the present and potential use, including agricultural use, of the land and of lands in the vicinity”. The Assessment Report summary which identifies the issues raised by objectors and the recommendations in terms of conditions of consent, extracted above at par 26, is also relevant to this subclause.

124. The Assessment Report refers to cl 12 of the NCREP at section 3.1 as requiring the Council to consider the “likely impact of the proposed development on the use of adjoining or adjacent agricultural land …”. The Assessment Report’s response to this requirement provides “[t]he proposed use of the site for wedding functions on a limited basis and guest accommodation is unlikely to create a land use conflict. The property is not identified as containing prime agricultural land …”.

125. The comments on the 1(a) zone objectives identify the improbability of the proposed use impacting on the rural character of the locality or giving rise to a land use conflict. The potential impact on surrounding properties is also considered in the context of the objectives for the RU2 zone in the BLEP 2014. That consideration identifies the proposed conditions of consent to ensure the amenity of surrounding neighbours is not adversely impacted on and the minimal potential of a land use conflict arising. In the context of s 79C of the EPA Act, the Assessment Report considers at section 3.4 the social and economic impacts in the locality and the suitability of the land for the development, which includes consideration of noise and amenity issues. The proposed wedding venue is identified at section 3.5 of the Assessment Report as more than 50 metres away from adjoining properties and the statement is made that this complies with the relevant guideline.

126. In the context of Pt 2 Div 1 of the NCREP the SEE referred to and commented on “Agricultural Resources”, which concluded that the proposed development is unlikely to impact on production on adjoining lands or the loss of prime crop or pasture land. A letter from the Council to Newton Denny Chappelle dated 16 April 2014 under the heading “Planning” referred to the proposed use and the potential of the development to impact on the amenity of the rural area.

127. A file note dated 1 August 2014 by Mr Rushforth, Council team leader environmental services, identified his assessment of the acoustic report by Tim Fitzroy & Associates dated 24 April 2014. Mr Rushforth stated that “the potential for neighbourhood conflict is a real possibility, unless appropriately managed”. A further file note by Mr Rushforth dated 30 August 2014 contains a recommendation to the planning officer that consent be granted subject to noise conditions identified by him. This addressed cl 34(3)(d) requirements. No failure to consider the matter required in cl 34(3)(d) is established.

128. Clause 34(3)(e) provides that consent may be granted where the Council is satisfied that “there will be no adverse visual impact of the proposed development of the landscape”. The substance of this issue was raised in the matters considered for cl 34(3)(b), see above at par 120-121. Furthermore, visual impact was also considered in the context of the objectives for the RU2 zone in the BLEP 2014. That consideration refers to the temporary nature of the marquee, landscaping and conditions of consent to ensure that the amenity of surrounding neighbours is not adversely impacted on. In the context of likely impacts of the proposed development under the heading “natural environment” in section 3.4, the Assessment Report provides that the proposed development is located on cleared land and will not have a detrimental impact on the natural environment. No failure to consider the matter required in cl 34(3)(e) is established.

129. In relation to the statutory construction of cl 34(3) contended for by the Applicant, for example subcl (c) of the amended summons partially extracted above at par 100, that the section did not permit the Council to grant approval for a development unless satisfied that there was no adverse impact as identified in subcll 34(3)(d) and (e) can be accepted. The Applicant’s case however was to then assert that there was an adverse visual impact as referred to in subcll (d) and (e) so that the Council could not have been satisfied of these required matters. The Council’s finding of satisfaction cannot be challenged simply by an assertion of unproven fact about what is a subjective matter in any event (assuming this can be called a fact as opposed to an opinion) in judicial review proceedings. No accepted ground of review such as the Council acted unreasonably in the Wednesbury sense was formally pleaded for example. In the course of the hearing, at the Respondent’s request, I did not permit reliance on such a ground of review as it was not articulated in the amended summons. In any event, the Applicant would not be able to establish the very high and stringent threshold for such a ground of review, as the Respondent submitted. The Applicant’s case as articulated in this way is not a recognised basis of challenge in judicial review proceedings.

130. The Applicant has not established this ground of review. I have found that those aspects of cl 34(3) identified in the Applicant’s case were considered by the Council. The Applicant accepted that if I arrived at that conclusion I would not need to consider cl 75 of the NCREP as raised in issue 5. I will therefore proceed to issue 6.

Issue 6 – No failure to consider economic impact as required by s 79C of the EPA Act

131. As amended in the course of the hearing the amended summons provided in relation to this ground stated:

3.4   Economic Impacts in the locality

b)   In particular the second respondent:

…

c.   had no regard to the economic impacts on the first respondent of the Use and had no regard to those same impacts on others in the locality.

Applicant’s Submissions

132. Section 79C(1)(b) of the EPA Act required the Council to consider the economic impacts of the proposed use on others in the locality, see Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638 per Basten JA at [45].

133. The Council did not identify economic impacts on adjoining properties as being an issue which it was required to consider under this section. It clearly gave consideration to the SEE provided by the Respondent in support of its application. However, that statement gave no attention to the effect of the consent on adjoining owners' agricultural and rural activities and that effect was not otherwise addressed by the Council at all, save for the unreasoned conclusion in the Assessment Report that there are no land use conflicts.

134. An illustration of the Council's failure to address this consideration is found in the manner in which it dealt with fireworks. Fireworks were not a part of the subject DA. However, the consent permitted the use of fireworks without having considered the economic impacts in the locality, as required by s 79C(1)(b) of the EPA Act.

135. The evidence establishes that there is an economic impact on others in the locality arising from the permissibility of fireworks, a matter which the Respondent itself accepts. However, the Council failed to give any consideration to this issue and thereby fell into jurisdictional error.

Finding

136. The summons identifies the failure to have regard to economic impacts on others in the locality. The Applicant clarified in the course of the hearing that the sole economic impact of concern is a failure to consider the impact of fireworks on the cattle operations conducted by Mr Roden on the neighbouring property. His affidavit dated 20 May 2015 is directed to this concern and the costs he may incur in managing cattle in the event of the use of fireworks on the Respondent’s land during a wedding.

137. It appears that this concern is baseless in both law and fact. The Respondent made no application to the Council for permission to use fireworks. The consent cannot give consent for matters for which consent is not sought. The conditions of consent do refer to fireworks by way of a general condition (see condition 41(f), above at par 26) stating that no private fireworks displays are permitted unless conducted by a licensed pyro technician under the Explosives Regulation 2013 (NSW) and in strict compliance with all NSW Workcover Authority requirements. Neighbours with pets or animals likely to be affected by fireworks are to be notified 24 hours in advance of any private fireworks event. This condition was presumably imposed in the event that there is some other legal basis under NSW law for fireworks to be used (about which I and the parties in this matter were unaware. There may be no laws permitting fireworks to be used). The condition does not permit the lawful use of fireworks.

138. As a matter of fact the Respondent does not intend to use fireworks. The contract which the Respondent requires its clients to sign (annexure C of exhibit D) specifies that no fireworks are to be used.

139. In these circumstances there was no failure by the Council to consider as a mandatory relevant consideration an economic impact on others in the locality. This ground of review is not established.

Conclusion

140. As the Applicant has not succeeded on any ground of review the summons should be dismissed. The usual costs order in such cases is that costs “follow the event” meaning the Respondent’s costs should be paid by the Applicant. I will postpone making the usual costs order for 14 days. If the Applicant seeks a different costs order a notice of motion must be filed before then. The Council filed a submitting appearance save as to costs and should also have the opportunity to make a submission on costs if it so wishes.

Orders

1. The Applicant’s amended summons filed 13 March 2015 is dismissed.

2. The Applicant is to pay the First Respondent’s costs.

3. Order 2 is postponed for 14 days.

4. Exhibits may be returned.

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Amendments

22 December 2015 - Amendment to Coversheet to include Land and Environment Court Act, s 25B in Legislation Cited. Amendment to Judgment par 6 to include reference to Land and Environment Court Act (instead of EPA Act).

Decision last updated: 22 December 2015