Signature Gardens Retirement Resort Pty Limited v Cessnock City Council - [2013] NSWLEC 1070

Land and Environment Court

New South Wales

Medium Neutral Citation: Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070
Hearing dates: 12,13,14 December 2012, 20,21,22 February 2013
Decision date: 24 April 2013
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is dismissed.
2. Development Application 8/2011/415/1 for the construction of a development for seniors or people with a disability at the corner of Marrowbone Road and Oakey Creek Road Pokolbin is refused.
3. The exhibits are returned with the exception of exhibit 19.

Catchwords: DEVELOPMENT APPLICATION: construction of a development for seniors or people with a disability - whether permissible development - whether contrary to the existing and preferred future use of the land for winegrowing activities - whether the proposed development may restrict winegrowing activities on nearby and adjoining properties by way of complaints - impact on the visual character of the area - stormwater disposal - availability of water and disposal of sewage - inadequate protection from bushfires - inadequate access to local services
Legislation Cited: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302
Cessnock Local Environmental Plan 1989
Cessnock Local Environmental Plan 2011
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Rural Lands) 2008
Cases Cited: ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147,
Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52,
Fairview Estates Vineyard Pty Ltd v Mid-Western Regional Council (2005) 143 LGERA 253,
Hornsby Shire Council v Malcolm (1986) 60 LGERA 429,
Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566,
Mathieson v Burton (1971) 124 CLR 1,
Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 243
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195.
Category: Principal judgment
Parties: Signature Gardens Retirement Resort Pty Limited (Applicant)
Cessnock City Council (Respondent)
Representation: Counsel
Mr P Clay SC with Ms A Hemmings, barrister (Applicant)
Mr T Robertson SC (Respondent)
Solicitors
Caldwell & O'Brien Solicitors (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 10874 of 2012

Judgment

COMMISSIONER: This is an appeal against the refusal by the Hunter and Central Coast Joint Regional Planning Panel on 26 June 2012 of Development Application 8/2011/415/1 for the construction of a development for seniors or people with a disability the corner of Marrowbone Road and Oakey Creek Road, Pokolbin (the site).

The proposed development provides for the construction of:

177 self-contained dwellings,
20 hostel assisted living serviced apartments,
a residential care facility incorporating 40 rooms,
communal facilities,
a dwelling to be used as a manager's residence, and
associated earthworks, landscaping, roads and drainage and sewerage infrastructure.

The proposed development will be constructed over 16 stages.

The council maintains that the proposed development must be refused as the land does not adjoin "land that is zoned primarily for urban purposes" and as such is prohibited. The parties also disagreed on the state environmental planning policy that prevails in the event of any inconsistency between two applicable policies.

If the proposed development is permissible, the council contends that development consent ought be refused because:

the proposed development is contrary to the strategic direction for the site based on the policy documents prepared by the council, specifically the loss of land suitable for winegrowing activities and consequent impact on wine tourism and the adverse impact on the "gateway" to the Cessnock vineyard area,
the proposed development will unacceptably impact on the visual character of the area through the urban form of the proposed buildings, associated roadworks, uncharacteristic landscaping, the extent of retaining walls, earth mounds and the inability to landscape existing power lines,
the proposed development could potentially impact on the amenity of the future residents by way of noise, odour and overspray from nearby winegrowing operations and which could affect the winegrowing operations, if complaints are made,
the design of the proposed development is unsatisfactory because of stormwater disposal, availability of water and disposal of sewage, inadequate protection from bushfires and the inconsistencies in the plans, and
the proposed development is unsuitably located for the future occupants of the proposed development because of inadequate access to local services.

At the conclusion of the hearing the conditions had not been settled, so with the agreement of the parties, the permissibility and merit contentions are to be determined and if there were no barriers to the approval of the application, the conditions could be addressed at time suitable to the parties.

The site

The site consists of 3 lots with a total area of 44.3 ha comprising;

Lot 1 DP 549647 28 Marrowbone Road, Pokolbin: 21.1 ha,
Lot 15 DP 1031577 69 Oakey Creek Road, Pokolbin: 22.1 ha, and
Lot 19 DP 251809 Oakey Creek Road, Pokolbin: 1.1 ha.

The site has a frontage to Oakey Creek Road of approximately 760 m and to Marrowbone Road of approximately 480 m. It is predominantly grassland with the exception of approximately 2 ha of remnant Lower Hunter Spotted Gum Ironbark Forest and some unattended grape vines. The site has a gentle to moderate slope, falling from a ridgeline towards the western boundary to Oakey Creek Road to the east. Three dams are located at the site in proximity to Oakey Creek Road. Two of the dams are in the north-eastern corner of the site and the other in the middle of the eastern boundary of Lot 1.

The site does not contain a dwelling. Part of the land has previously been used for wine grape production and some vines remain. Other improvements on the site include two machinery sheds, water tanks and pumping equipment in proximity to the storage dams.

The general locality has a mixed character. Rural land uses and commercial vineyards surround the site to the north, south and west. The site adjoins Saddler's Creek Winery, which comprises a commercial vineyard and cellar door facility to the south adjoining Marrowbone Road, open paddocks to the north with the Iron Gate Winery further to the north and commercial vineyards over the ridge to the west. The Kelman Estate, a residential/vineyard development is located to the east on the opposite side of Oakey Creek Road. Traditional residential development is located further to the east.

Relevant planning controls

The site is currently within Zone RU4 Primary Production Small Lots under Cessnock Local Environmental Plan 2011 (LEP 2011). The RU4 zone objectives are:

· To enable sustainable primary industry and other compatible land uses.

· To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

· To minimise conflict between land uses within this zone and land uses within adjoining zones.

· To maintain prime viticultural land and enhance the economic and ecological sustainability of the vineyards district.

· To encourage appropriate tourist development (including tourist-related retail) that is consistent with the rural and viticultural character of the vineyards district.

· To enable the continued rural use of land that is complementary to the viticultural character of the land.

The proposed development is prohibited in this zone but gains the opportunity for approval through State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004). The applicant maintains that SEPP 2004 applies by way of cl 4(4) in that the site is "land that adjoins land that is zoned primarily for urban purposes". The council maintains that cl 4(4) does not apply and the development is prohibited so the merits need not be considered.

Clause 5(3) states:

(3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

Clause 24 provides requirements for Site compatibility certificates and applies as it is claimed that the site is "land that adjoins land primarily for urban purposes" (cl 24(1)(a)(iii)). Consent may not be granted unless the Director General has certified, in a current Site compatibility certificate, that the proposed development "is compatible with the surrounding development having regard to (at least) the criteria specified in cl 25(5)(b)" (cl 24(2)(b)). There was agreement that there is current Site compatibility certificate.

Clause 24(3) relevantly states:

(3) Nothing in this clause:

(a) prevents a consent authority from:

(i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or

(ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or

(b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.

Part 2 provides site related requirements. Clause 26 addresses Location and access to public facilities and provides that consent must not be granted unless the consent authority is satisfied that future residents will have access to a range of facilities identified in cl 26(2).

Part 4 provides design requirements. Clause 32 provides that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to the principles set out in Division 2. The relevant principles are Neighbourhood amenity and streetscape (cl 33), Solar access and design for climate (cl 35) and Accessibility (cl 38).

Part 5 provides requirements for development on land adjoining land zoned primarily for urban purposes. Clause 42 addresses self-care housing, cl 43 addresses Transport to local centres and cl 44 addresses Availability of facilities and services.

Standards that cannot be used to refuse development for residential care facilities, hostels and self-contained dwellings are contained at cll 48, 49 and 50, respectively for building height, density and scale, landscaped area and parking. There was no dispute that the proposed development satisfies these requirements.

Even though the site is currently zoned under LEP 2011, the development application was lodged and not determined prior to the coming into effect of 2011 and as such cl 1.8A of LEP 2011 is relevant. This clause states:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

The planning instrument prior to be coming into effect of LEP 2011 was Cessnock Local Environmental Plan 1989 (LEP 1989). Under LEP 1989 the site is within Zone No 1(v) Rural (Vineyards). The proposed development is prohibited within this zone although SEPP 2004 applied to at the time the development application was lodged with the council.

Clause 9(3) provides:

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried cut.

Cessnock Development Control Plan applies to the site. The relevant part is Part E3: Vineyards District (the DCP-Part E3). The DCP-Part E3 was originally adopted by the council on 2 December 1998 (as DCP 28) and remains in force, with the most recent amendments occurring with the gazettal of LEP 2011 on 23 December 2011. The purpose and objectives are:

3.1.2 Purpose

This Chapter adds detail to those planning provisions contained in Cessnock Local Environmental Plan (CLEP). The Chapter provides detailed guidelines for the establishment of buildings and vineyards in the Vineyards District. The Chapter also provides a basis upon which to implement stated objectives for the Vineyards District.

3.1.3 Objectives

(a) to maintain prime viticultural land and promote the economic and ecological sustainability of the Vineyards District;

(b) to recognise and protect vineyards and wineries (dominant land uses) from inappropriate uses in the zone;

(c) to encourage appropriate tourist development consistent with the rural and viticultural character of the Vineyards District;

(d) to minimise conflict between viticultural and non-viticultural land uses by the sympathetic location and design of those uses, and the maintenance of the rural/viticultural character of the landscape;

(e) to enable the continued rural use of land which is complimentary to the viticultural character of land within the Vineyards District;

(f) to protect the water quality of receiving streams and to reduce land degradation;

(g) to actively promote the need to conserve and enhance the biodiversity of the Vineyards District; and

(h) to conserve the aboriginal archaeology and European heritage of the Vineyards District.

DCP-Part E3 provides requirements for Consideration of Surrounding Land Uses (cl 3.2.1), Viticultural Analysis (cl 3.2.2.1), Building Siting and Design (cl 3.2.3), Development Densities (cl 3.2.4), Setbacks (cl 3.2.5) and Noise Generation and Odour considerations (cl 3.2.8). Appendix 1 provides Vineyards District Landscape Guidelines. The site is located in the Vineyards District Locality Plan in Figure 1 and part of the site also falls within a Visually Significant Area in Figure 3.

State Environmental Planning Policy (Rural Lands) 2008 (the Rural Lands SEPP) applies to the site. Clause 5 states:

5 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Clause 10 states:

10 Matters to be considered in determining development applications for rural subdivisions or rural dwellings

(1) This clause applies to land in a rural zone, a rural residential zone or an environment protection zone.

(2) A consent authority must take into account the matters specified in subclause (3) when considering whether to grant consent to development on land to which this clause applies for any of the following purposes:

(a) subdivision of land proposed to be used for the purposes of a dwelling,

(b) erection of a dwelling.

(3) The following matters are to be taken into account:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone,

(e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).

The evidence

Mr David Broyd, a town planner, Dr Phillip Pollard, an architect and urban designer and Mr Richard Hilder, a viticulturist and agriculturist provided expert evidence for the council.

Evidence from local residents and winemakers was provided on the site inspection and reflected the matters expressed by the council in their Amended Statement of Facts and Contentions.

Mr Stephen Leathley, a town planner, Mr Stephen McMahon, a town planner and urban designer, Mr Stephen Gell, a viticulturist and agriculturist and Mr Ted Smith, a bushfire expert, provided expert evidence for the applicant.

Is the development prohibited?

The dispute between the parties centres on cl 4 of SEPP 2004 and whether the site is "land that adjoins land zoned primarily for urban purposes". Clause 4 states:

4 Land to which Policy applies

(1) GeneralThis Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a) development for the purpose of any of the following is permitted on the land:

(i) dwelling-houses,

(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or

(b) the land is being used for the purposes of an existing registered club.

(2) Land that is not zoned primarily for urban purposesFor the avoidance of doubt, land that is not zoned primarily for urban purposes includes (but is not limited to) land that is within any of the following zones under another environmental planning instrument:

(a) a zone that is identified as principally for rural uses,

(b) a zone that is identified as principally for urban investigation,

(c) a zone that is identified as principally for residential uses on large residential allotments (for example, Zones R5 Large Lot Residential and RU6 Transition referred to in the standard instrument for principal local environmental planning instruments prescribed by the Standard Instrument (Local Environmental Plans) Order 2006).

(2A) For the avoidance of doubt, land that is not zoned primarily for urban purposes includes (but is not limited to) land to which Warringah Local Environmental Plan 2000 applies that is located within locality B2 (Oxford Falls Valley) or C8 (Belrose North) under that plan.

(3) Nothing in subclause (2) or (2A) operates to make any land not referred to in those subclauses land that is zoned primarily for urban purposes.

(4) Land that adjoins land zoned primarily for urban purposesFor the purposes of this Policy, land that adjoins land that is zoned primarily for urban purposes includes (but is not limited to) land that would directly adjoin land that is zoned primarily for urban purposes but for the presence of a public road to which there is direct vehicular and pedestrian access from the adjoining land.

What is the appropriate planning regime - LEP 1989 or LEP 2011?

Mr Clay SC, for the applicant, and Mr Robertson SC, for the council accept that the application is captured by the savings provisions in cl 1.8A however they disagree whether LEP 1989 or LEP 2011 applies for the question of whether the site is "land that adjoins land zoned primarily for urban purposes".

Mr Robertson submits that for the purposes of cl 4, "zoned" means the zoning of the site that currently is in force, that is LEP 2011. This position is not altered by the savings provision, because it does not amend, and has not application to SEPP 2004. If this was not clear on its face, cl 1.9 of LEP 2011, combined with the general presumption that SEPP's prevail over LEP's, ensure that SEPP 2004 prevails where there is conflict between LEP 2011 and SEPP 2004.

Mr Clay submits that the Court has consistently held that a savings provision, such that contained in cl 1.8A of LEP 2011, operates in its terms such that the enquiry as to the zoning of the surrounding land is as if LEP 2011 has not been made. He submits that this approach is profoundly logical. The purpose of a savings provision is to ensure that a consent authority retains the power to deal with a "saved" development application. Such a savings provision would be meaningless if the question of the zoning only applied to the site, because the operation of a later LEP could render a development, such as the present, prohibited by reference to the surrounding zoning by virtue of a later LEP. If LEP 1989 is adopted for the purposes of cl 4, there can be no doubt that the site is "land that adjoins land zoned primarily for urban purposes".

In considering the competing submissions, I accept the submissions of Mr Clay. Clause 1.8A provides that "the application must be determined as if this Plan had not commenced". I have taken the word "determined" to mean that the application is to be considered (in all aspects) and a decision made on its acceptability, as if LEP 2011 had not commenced. Any consideration must include the assessment required by cl 4. The zoning under LEP 2011 had not commenced, pursuant to cl 1.8A, so the appropriate assessment is to be made against the planning regime in force prior to the coming into effect of LEP 2011, that is LEP 1989. I agree with Mr Clay that to adopt the position taken by the council would have part of the application considered under LEP 1989 and part under LEP 2011, which is illogical and inconsistent with cl 1.8A.

In any event, it could be reasonably argued that the words "the application must be determined as if this Plan had not commenced" in cl 1.8A mean that LEP 2011 has no legal status because it directs that LEP 2011 has not been advertised or commenced and as such is not a relevant consideration under s 79C(a)(i) or (ii) under the EPA Act (Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302).

Is the development prohibited? - the facts

Under LEP 1989, the site adjoins the Kelman Estate being on the opposite side of Oakey Creek Road. The Kelman Estate is zoned 6(a) Open Space and Residential 2(a). It has an area of 33.98 ha and has a Torrens title subdivision into 93 lots of varying sizes. The innovative aspect of the subdivision is that the lots are burdened with an easement for "Vineyard Maintenance" that provides for substantial areas for growing grapes in conjunction with the residential use of the lots. Approval also exists for cellar door sales for wine produced on site. The 6(a) zoned land runs as a narrow band abutting Oakey Creek Road and is identified as an "Easement for landscaping" on the subdivision, generally 10 m wide. Oakey Creek Road is 20.115 m wide is unzoned under LEP 1989.

The assessment framework

In determining whether a site "adjoins land that is zoned primarily for urban purposes", it is necessary to look at the particular zoning provisions of the land and not its past or current uses (Fairview Estates Vineyard Pty Ltd v Mid-Western Regional Council (2005) 143 LGERA 253 (at [34]). It is a matter of fact and degree and sufficient that the land is "near to" or is " neighbouring on" or is "in sufficient proximity to" land zoned primarily for urban purposes. The land need not be conterminous with or be immediately adjoining (ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147 (at [31]).

The submissions

Mr Robertson submits that even if Oakey Creek Road was not a reason to find that the urban zoned part of the Kelman Estate was " adjoining" for the purposes of cl 4, the intervening open space zone that runs along Oakey Creek Road breaks the continuity. The purpose of the open space zone is to provide for "a rural/urban transition to preserve the rural vista when entering and leaving the Vineyards District from the south". This strip of land was intentionally designed to act as a strategic planning buffer. The purpose was to prevent the erection of structures within the zone and it remains consistent with the zoning arrangements under both LEP 1989 and LEP 2011 and the low density rural characteristics of the Kelman Estate to the east and rural land to the west.

Mr Robertson further submits that as cl 4(4) has been included to deal specifically with the question of "adjoining" where two sites are separated by a road, there are two elements that are required to be satisfied for this provision to apply. First, the land would "directly" adjoin land zoned primarily for urban purposes except for an intervening road. Secondly, the provision requires "direct" vehicular and pedestrian access from the adjoining land to the road. In this case, the intervening open space area effectively stops "direct" access to the urban land in the Kelman Estate and also a fence separates the road from the border of the open space zone so there are no driveways or direct access points to the road from the properties in the Kelman Estate to Oakey Creek Road.

Mr Clay submits that it is self-evident that the Kelman Estate is land zoned for urban purposes is "near to, is "neighbouring on" and is "in sufficient proximity" to the site to be regarded as "adjoin(ing) land that is zoned primarily for urban purposes". The intervention of the road is irrelevant, in this case as zoned or otherwise, it cannot play a role by virtue of cl 4(4), and on the application of the test, formulated even prior to the introduction of this subclause, the presence of the road cannot lead to conclusion that the site does not adjoining land zoned primarily for urban purposes.

The narrow strip of land zoned open space under LEP 1989 or RU1 under LEP 2011 also makes no material difference. As a matter of fact and degree, it is such a narrow strip that it does not make any material difference whether the subject land is neighbouring upon the Kelman Estate residential zoned land. Further, and while that it is unnecessary to find that land zoned 6(a) is indeed land zoned primarily for urban purposes, having regard to the uses which are permissible and the objectives of the 6(a) zone.

Findings

In considering the competing submissions I agree with the conclusions of Mr Clay for a number of reasons. First, the word "adjoins" has been accepted to include the intervention of a road and road reserve (Hornsby Shire Council v Malcolm (1986) 60 LGERA 429) even without the need for cl 4(4). There has been no change to this conclusion although it has been expanded in later decisions to include descriptors, such as "near to" or "in the neighbourhood of" (Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 243). Presumably, to avoid any confusion, cl 4(4) was included in October 2007 to address the specific occurrence of a road separating a site and land zoned for urban purposes.

Second, it was found in ACN that the question of whether land "adjoins" is a matter of fact and degree. In ACN, it was found that land adjoined land zoned principally for urban purposes even with the intervention of a road 25 m wide and rail corridor of some for 40 m in width between the two properties. While predating ACN, in Modog, the opposite conclusion was reached however there was a separation distance of some 200 m between the two relevant parcels of land. In this case, the width of the Oakey Creek Road reserve is some 20 m.

Third, I do not accept that the land zoned 6(a) Open Space (or RU1 under LEP 2011) can be seen to affect the question of whether the site adjoins the urban land in the Kelman Estate. The open space land forms part of the lots within the Kelman Estate that have a frontage to Oakey Creek Road. The permissible uses in the 6(a) zone (or RU4 zone) clearly suggest that the zone contemplates uses that could be regarded as being for urban purposes, although in practical terms these uses are unlikely to occur given the configuration of the lots fronting Oakey Creek Road, their size and their predominantly residential use. While the 10 m wide easement that adjoins Oakey Creek Road is required to be landscaped, I am satisfied that "there is direct vehicular and pedestrian access from the adjoining land". Even if the zoned open space land within the Kelman Estate was for a strategic planning purpose as submitted by Mr Robertson, it does not affect the accepted meaning of "adjoins" for the purposes of cl 4.

Fourth, and if I am incorrect in adopting LEP 1989 as the appropriate planning document, I do not accept that the RU4 zoning of Oakey Creek Road under LEP 2011 impacts in any way on a findings that the site adjoins land zoned primarily for urban purposes. Oakey Creek Road is clearly a road that forms an important link in the existing road network and its change to another use, notwithstanding its zoning, is highly unlikely. For all intents and purposes Oakey Creek Road will remain an important local road. I am also not satisfied that the zoning of Oakey Creek Road (and most other roads under LEP 2011) has any meaningful strategic purpose, given that the publication by the Department of Planning "Standard technical requirements for LEP maps, November 2012, version 2.0" provides that "roads should be zoned" rather than left unzoned under previous planning instruments, such as LEP 1989.

Fifth, I do not accept that any reference to other adjoining land uses such as rural lands or the adjoining correctional facility, somehow compromises the satisfaction of the test in cl 4. Given the comments in the previous paragraph, I accept that the site satisfies cl 4 in that it adjoins land zoned for urban purposes, that is the Kelman Estate. The fact that all parts of the site do not adjoin land zoned principally for urban purposes is immaterial for the purposes of cl 4.

Sixth, the concerns expressed over accessibility and the aims of SEPP 2004 and its relationship with the test in cl 4 is more appropriately addressed through the specific requirements in cl 26 of SEPP 2004.

For these reasons, I am satisfied that the site is "near to" or is "neighbouring on" or is "in sufficient proximity to" land zoned primarily for urban purposes; being the Kelman Estate, that SEPP 2004 applies to the proposed development.

SEPP 2004 v the Rural Lands SEPP

SEPP 2004 and the Rural Lands SEPP apply by way of cl 4 of each document. Each document also contains a similar provision (cl 5(3) and cl 5, respectively) that in the event of an inconsistency between the policy and any other environmental planning instrument, whether made before or after the commencement of the policy, the policy prevails to the extent of the inconsistency.

Mr Robertson submits that s 36(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides that in the event of an inconsistency between planning instruments "and unless otherwise provided", the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of instrument prevails over another instrument of the same kind (s.36(1)(c)). He submits that not only does the Rural Lands SEPP apply to this application, but its provisions, where inconsistent with SEPP 2004, prevail.

The first principle is the harmonious construction rule:

"where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purposes and language of those provisions while maintaining the unity of all the statutory provisions": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].

If the relevant provisions cannot be harmonised, or read together, then the next step is to identify which provision was intended to prevail. In this case, there is no textual assistance from the express inconsistency clauses in the SEPPs. The clauses are not materially different, and both express the same intention: that the relevant SEPP is to prevail. They cancel one another out. So far as context is concerned, both SEPPs deal with special or particular circumstances: in the one case, a particular kind of development application, and in the other both particular kinds of development applications (development for the purpose of erecting dwellings) and particular kind of land (land in a rural zone). Rules of construction such as the generalia specialibus non derogant rule (special provisions prevail over general provisions on the same subject matter: Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52 at [109]-[110]) do not apply. The SEPPs address different subject matters, which is sufficient to exclude the application of the generalia specialibus rule. It is not possible to say that the legislature intended one SEPP to be subordinate to the other.

Once these rules of construction have been exhausted and any conflict between the SEPPs has not been resolved, then the later provision prevails (Mathieson v Burton (1971) 124 CLR 1 at 10) and the earlier provision is impliedly repealed. Actual contrariety between the provisions must be clearly apparent and the later must not be capable of sensible operation if the earlier provision still stands (Nystrom at [48], [2]). That position will of course be reached if the conflict cannot be resolved by recourse to the other rules of statutory construction.

Mr Robertson submits that SEPP 2004 is to achieve its aims by "setting aside local planning controls" that would otherwise prevent seniors' housing (cl.2(2)(a)). The first matter to note is that this could not be a reference to the Rural Lands SEPP, as it does not impose "local" controls: on the contrary, it has a State-wide operation with the exception of the Sydney, Newcastle and Wollongong urban areas: s.4. There is no doubt that the SEPP 2004 can apply to rural land of a particular kind: land that adjoins urban zoned land. To that extent, the Rural Lands SEPP qualifies the approach, which might otherwise be taken under the SEPP 2004. It does not prohibit what the SEPP 2004 permits: there is no direct inconsistency of that kind. Rather, it defines with precision the matters that must be taken into account in determining the question of compatibility, not limited to surrounding land uses: compare with cl.25(5)(b). The question of compatibility raised by the Rural Lands SEPP is to be assessed against the "preferred and the predominant land uses in the vicinity of the development, and cl.24(3)(b) of the SEPP 2004 makes it clear that nothing in the compatibility provisions of the SEPP 2004 limits the matters to which the Court may or must have regard in determining the application.

Mr Clay accepts the approach taken by Mr Robertson however submits that under the general presumptions of the law, SEPP 2004 prevails under the generalia specialibus rule as SEPP 2004 is more specific compared to the Rural Lands SEPP that is the more general in its application.

On this matter, I am satisfied that the conclusions of Mr Clay should be accepted. I did not understand there to be any dispute over potential conflict between Rural Lands SEPP and SEPP 2004 as the former aims "to facilitate the orderly and economic use and development of rural lands for rural and related purposes" (cl 2(a)) whereas SEPP 2004 aims to set "aside local planning controls that would prevent the development of housing for seniors or people with a disability" on rural land, in this case (cl 2(2)(a)).

While Mr Robertson submits that the SEPPs address different subject matters I am not sure that this is correct. Both the Rural Lands SEPP and SEPP 2004, in this case, seek to control development on rural land. SEPP 2004 applies to a zone that is identified as principally for rural uses (cl 4(2)(a)) and the Rural Lands SEPP applies generally to rural land in NSW outside the Sydney metropolitan area, Newcastle and Wollongong (cl 4.).

If the generalia specialibus rule is to address a situation where two legislative provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one, irrespective of which was enacted first. In this case, I am satisfied that SEPP 2004 is the more general of the legislation that seeks to control what can take place on rural land. The Rural Lands SEPP has much wider application and more general provisions that is more closely related to the application of policy through Rural Planning Principles (Part 2) and extends to all rural land in NSW outside the Sydney metropolitan area, Newcastle and Wollongong. This needs to be compared to SEPP 2004 that has greater restrictions on its application to only housing for seniors or people with a disability and only on land that adjoins land that is zoned primarily for urban purposes. SEPP 2004 also applies to individual development applications and contains specific standards for housing for seniors or people with a disability.

For these reasons, I am satisfied that SEPP 2004 prevails over the Rural Lands SEPP if there is any inconsistency between the two policies.

Is the development contrary to the strategic direction for the site?

The evidence

Mr Broyd states that the proposed development is inappropriate in terms of state, regional and local planning policy frameworks. In coming to this conclusion, Mr Broyd relies on a number strategic planning documents. First, the NSW Government Policy for Protection of Agricultural Land and the Upper Hunter Strategic Regional Land Use Plan (UHSRLUP). The UHSRLUP includes the site and was adopted by the NSW Cabinet in September 2012 and seeks to protect rural and productive lands from encroachment and sterilisation. The Pokolbin district is identified as a "viticulture critical industry cluster" (CIC) where the identification may assist councils in providing appropriate zonings and planning provisions to reflect the high value of the agricultural land. The viticulture CIC covers approximately 107,035 ha of the Upper Hunter region. This designation, according to Mr Broyd, affirms the importance of maintaining the integrity of the Pokolbin district, the site and its surrounds for viticulture.

Second, the Lower Hunter Regional Strategy (LHRS) was adopted by the NSW Cabinet in October 2006, The LHRS addresses sustainability and balancing competing land uses. Mr Broyd states that it essentially establishes a strategy for the Lower Hunter up to 2031. The LHRS identifies the vineyards district, including the site, as significant agricultural land and as land "that provides economic, environmental and social benefits to the region". The continuation of rural zoning for the Vineyard District was reinforced in LEP 2011 through the RU4 zoning.

Third, the Cessnock City-Wide Settlement Strategy 2010 (CWSS) was adopted by the Council in September 2010. The CWSS contains clear policy statements about the crucial importance of the viticulture industry to the economic stability and growth, employment growth and tourism in the Cessnock local government area. The CWSS does not identify any potential for more intensive development, other than tourist development of the site, and as such the proposed development is contrary to the CWSS.

Fourth, the proposal is also inconsistent with the councils Vision Statement for the Vineyards District (VSVD) adopted in August 2012. The VSVD recognises:

the primacy of the vineyard uses must be maintained,
the rural character of the area (as defined by current zonings) must be maintained,
that wine and tourism activities are the key economic drivers of the region, and
any future uses must not all was land use conflicts.

Mr Broyd concludes by stating that since 1989, the site has been zoned within a clear planning policy framework of protecting the land for viticulture. The proposal is inconsistent with that long-standing zoning intent. The proposed development is not strategically appropriate in terms of state, regional and local planning policies and the critical importance of safeguarding the economic importance of the viticulture to the local and regional economy.

Mr Leathley comes to the opposite conclusion. He states that the LHRS provides a planning framework for the orderly and economic development within the Lower Hunter Region with aims to ensure that the region continues to grow and prosper in a sustainable away, while creating long-term business certainty in attracting more investment and jobs. In his opinion, it is a broad-based "strategy" document with the its primary purpose to direct land use planning to achieve strategic goals. It has limited significance to the assessment of the subject development application.

Again, the CCWSS is a broad-based strategic document that confirms the preparation of LEP 2011 and implements a number of the outcomes and actions arising from the LHRS. While it identifies land for future urban growth, it is largely silent on the provision of appropriate housing for an ageing population that is a significant issue for the Cessnock local government area. As with the LHRS, it has limited significance in the assessment of the subject development and application.

Mr Leathley states that the proposed development is consistent with the VSVD. He cites Vision Objectives 2 and 3 that state:

2. Develop places for all generations to live for the best possible quality of life, at every stage of life.

3. Ensure some expansion of residential estates that incorporate leisure, residential and tourism facilities as part of lifestyle niches in keeping with the character and amenity of the vineyard district provided they are built to a high standard.

Findings

In accepting the general proposition that it Court is not limited to the planning document identified in s 79C(1) as the sole means of determining whether a development is in the public interest, it must be accepted that environmental planning instruments should be given greater weight in the determination of a development application, unless there is a compelling reason not to do so. This is set out in Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195, where it states:

81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235).

In this case, and for a number of reasons I am not satisfied that the policy documents identified by the council should be given any significant weight in considering the development application. First, the UHSRLUP, while addressing viticulture has a clear focus on mining and coal seam gas industries. Where the UHSRLUP addresses viticulture, it does so mainly as part of the conflict between agriculture and resource development.

I am satisfied that the UHSRLUP was envisaged to be a document that is to guide future planning for the Upper Hunter area and not a document that should specifically be used in the determination of a development application. I note that the UHSRLUP states (at p6) that:

Consideration of broader land use issues in that part of Cessnock Council area included in this plan will be undertaken as part of the review will be undertaken as part of the review of the Lower Hunter Regional Strategy. ...

The UHSRLUP states (at p22) under the heading of "Viticulture cluster" that:

The mapping of strategic agricultural land indicates (Map 6) where it occurs throughout the region. As the mapping is at a regional scale, it is not intended to be used for property level interpretation but to provide a regional level indication of the areas that potentially have strategically significant agricultural value.

The UHSRLUP states (at p81) under the heading of "Strategic Planning" states that:

This plan provides a clear land-use framework for the region, providing a context for a government decision making around investment priorities, servicing strategies, consolidating strategic centres and local environmental plan making.

This plan will also inform the development of the Hunter Regional Action Plan under the Government's NSW 2021 plan and Council's integrated planning and reporting frameworks....

Second, I am also satisfied the LHRS has a similar role to the UHSRLUP, in that it is a document that is to guide future planning for the Upper Hunter area and not a document that should specifically be used in the determination of a development application. The LHRS has a focus on how future growth will be managed to 2031 in the region and while viticulture is correctly mentioned, it is done so in general terms. For example, (at p36) the LHRS states:

... The vineyards district experiences pressure for development that is often inconsistent with the to rural/grape growing character. Development in the vineyard's district, therefore, is to be carefully managed to avoid detracting from its character

Further, the LHRS states under the heading of "Outcomes":

The rural character of the region is recognised and protected in local environmental plans. This includes protecting highly valued agricultural lands (such as the vineyards district) from urban and rural-residential encroachment as well as maintaining the character of small rural villages.

Third, I agree with Mr Leathley that the CCWSS is a broad-based strategic document that informed LEP 2011, specifically in the use of the RU4 zone.

While there can be no doubt that the strategic planning documents referred to by the council are extremely valuable for the long-term planning of the area, I do not accept that they should be given any significant weight in the determination of the subject development application. They are not documents that should play a role in the assessment of the development application beyond the unchallenged position that the vineyards are an important land use in the area and require specific consideration in the planning for the area.

I do not accept the argument by the council experts that viticultural activities should be given primacy over other land uses on the site or other the land within the Vineyards District. It is clear from the many strategic documents that viticultural activities are important to the area however many other uses are permissible by way of LEP 1989 (including cl 9(3)), LEP 2011 or SEPP's. Any non-viticultural activities that seek development consent need to be considered in the proper assessment framework and after the proper consideration may or may not warrant approval.

For reasons outlined in the preceding paragraphs, the documents essentially guide the planning process and more specifically, the preparation of LEP's and DCP's. To give the strategic planning document the weight suggested by the council's witnesses, in my view, is overstating their role in the consideration of a development application.

Character

The assessment framework

Clause 32 states:

32 Design of residential development

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

Clause 33 falls within Division 2 and relevantly states:

33 Neighbourhood amenity and streetscape

The proposed development should:

(a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

(b) .

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site's land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

(f) .

(g) ..

The evidence

Dr Pollard states that the character of the area is a rural one, within which the vineyards form an attractive and distinct focus. The section of Oakey Creek Road that runs in a north/south direction represents a legible boundary between the urban area of Cessnock and the rural areas to the west. The proposed development weakens the current distinction between the urban area and the rural/vineyard character beyond by placing a relatively dense "bubble" of residential development in an area that is a valuable contributor to the sequential visual exposure to the rural vineyards district.

Travelling westward along Marrowbone Road provides attractive rural views from leaving the roundabout at Oakey Creek Road towards the mountain range, including Mt Smart. These views widen after crossing the existing low ridge towards the west and boundary of the site; the rural and viticultural character is established from the roundabout. The views obtained across the site from Oakey Creek Road to the western region are attractive rural views that contribute meaningfully to the experience of entering this part of the wine region. If approved, the site would remain the only urban development on the western side of Oakey Creek Road.

Dr Pollard further states that the use of Oakey Creek Road as a physical barrier between the urban and rural/vineyard characters is worthy of retention as it provides a defined and tangible experience of leaving the township and entering a rural area. In his opinion, this can be described as an "entry statement". While other roads access the vineyard district, the entry to the vineyard district via Oakey Creek Road is still important, particularly for those persons not wishing to follow the established tourist routes. The proposed development represents an unattractive and inappropriate treatment of the extended urban edge because of the poor design and siting of the dwellings, the extensive earthworks, mounding, the limited capacities for establishing adequate landscaping and a significant visual impact on adjoining properties such as the Kelman Estate and the Iron Gate Winery.

In relation to cl 33, Dr Pollard states that the desirable elements of the locations current character should not come from the standard urban areas of Cessnock, but rather from the surrounding rural and vineyards area. To a degree, some of the cottages in the Kelman Estate have drawn their expression in this manner. These elements include selection of materials, siting of buildings and architectural expression. In contrast, the proposal includes self care residences, which are virtually identical to those at other developments owned by the applicant. With only minor concessions to colour schemes and detailing of veranda columns Dr Pollard states that these do not address the central concern. The layout of the cottages and duplexes are monotonous and do not take account solar access. Other buildings are simply extrusions with glass walls facing of east and west. Overall, the buildings do not recognise the locations character.

Mr McMahon states that the locality surrounding the site can be divided into two distinctly different character precincts (east and west) that are distinguished by landform, views and prominent land uses. The common boundary of the precinct is a low height, but visually prominent, ridgeline that extends north-south along the western boundary of the site.

For the western character precinct, the undulating foothills provide extensive vistas of the Brokenback Range. The predominant land use is viticulture and the rolling fields exhibit attractive patterns of vines. Vistas are dominated by the mountain range. It is a distinctive landmark, generating a memorable "sense of place". This precinct exhibits a typical vineyard region landscape. It is attractive and highly valued.

In the eastern character precinct, landform is comparatively flat and less distinctive. Views are local and interrupted by vegetation, predominantly along roads and creeks and are not particularly compelling. There is a wide mix of uses predominantly suburban in nature including residential estates, a golf course, prison, high school and caravan park. There are a few small vineyards at the intersection of Marrowbone Road, Oakey Creek Road and Mount View Road adjoining the site however no distinct land use prevails.

The site falls within the eastern character precinct. It is not located in the vineyards district either physically or conceptually and has an in inconsequential relationship with it. Rather, it has a stronger relationship with the residential areas and supporting activities of Cessnock to the east and as such will not detract from this character. The presence of the development, including the landscaped mound, will have no impact on the character of the area nor will it diminish the value of the ridgeline as the division between the two character precincts. The mound is 2 m in height while the fence has a height above that of 1.8 m. Both features are restricted to the southwest corner of the site and importantly, both features will be obscured by the sites foreground landscaping.

Mr McMahon describes Oakey Creek Road as little more than a convenient demarcation between zones and it is not based on any physical analysis of the characteristics of the area. Similarly, the role of

Oakey Creek Road as a gateway to both Cessnock and the vineyards is at best, minor as it lacks a concentration of the wine country attractions, activities and vineyards, which would ordinarily give the road a significant role in the movement patterns of the area. Consequently, Mr McMahon maintains that the development will not result in any change in opinions, expectations or perceptions of the vineyards district in the eyes of tourists and other visitors that could have any impact on the tourism profile of the area.

In relation to cl 33, Mr McMahon states that the Bellbird Release Area is 280 m from the site to the east. Construction has commenced on traditional residential subdivision layouts. Other well-established residential estates are located on the north side of Mount View Road where subdivision and housing design is conventional, comprising regular and typical project homes on conventional size lots. Importantly, no vineyard theme is evident. This form of development has a significant influence on the quality and identity of the area. Also, there is not a distinctive or prevailing architectural theme in Cessnock and the vineyards have a range of architectural styles, materials and colours. In many respects, development of the site will complement and reinforce the contribution made by the Kelman Estate to the area's identity.

Dr Lamb agrees with the conclusions of Mr McMahon. He accepts that the site is the boundary between urban and rural land however the boundary appears to be as much of a coincidence as a deliberate planning decision, given that prior to the development of the Kelman Estate, this property was a saleyards with more rural than urban character. It has now zoned urban, notwithstanding it has both urban and rural attributes. Dr Lamb notes that the promoted entries to vineyard district from Cessnock are dominantly from Wine Country Drive, which is heavily promoted, signposted and shown on most tours materials as the premier access. Dr Lamb agrees with Mr McMahon that the ridge on the western boundary of the site and which runs further north is the natural and aesthetic divide between the outskirts of Cessnock and the scenic, vineyards district to the west and north-west. If there is a gateway in the locality, it is where Marrowbone Road and Oakey Creek Road cross into the watersheds to its west, where the views of Mount Smart, Mount View and the Brokenback Ranges dominate wide floored valleys with vineyards in various locations.

As a visual experience for a tourist, as distinct from the boundary between two different zonings, entry to the vineyards district is a cognitive construction that depends on the assembling of cues, memories, the anticipated stereotypical images and expectations. Dr Lamb maintains that there will be no conceivable difference to the experiences of tourists at either self- directed or guided tours with regard to "entry statements". The proposal will be an edge of town experience, just as the existing edge that the Kelman Estate, as an example, is now.

The bulk and scale of the development and population of residents permissible under SEPP 2004 is obviously not a development contemplated for the rural or the adjacent residential zone. In a sense, it is pointless to note the differences in density and built form of a retirement village and a block of vines, grazing land or some of the attributes of the Kelman Estate, such as density. The critical question in relation to the visual impacts is not will there be a contrast but whether the proposal produces reasonable streetscape and neighbourhood amenity in the context of being a SEPP 2004 development. To do so does not mean that the development has to be the same, but only to be reasonably compatible and address the desirable aspects of the setting.

In the opinion of Dr Lamb, and considering cl 33, the proposed development makes use of the existing characteristics of the site to assist in reducing the visual prominence, responds to the topography, retains significant existing scenic features, has wide setbacks, buffers of rural character and a landscape design that will extensively screen the development. The development has very low potential visibility from Marrowbone Road as a result of a mounding and landscape screening effects and earth mounds, grassy banks or screening vegetation are natural features in a rural landscape.

Findings

Clause 32 provides that consent must not be granted unless the Court is satisfied that adequate regard has been given to the principles set out in Division 2. The principle in cl 33, relating to neighbourhood amenity and streetscape, requires the proposed development to "recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character)" so that any new buildings "contribute to the quality and identity of the area". Neighbourhood amenity and residential character to be maintained by considering building setbacks, building form and heights and landscaping.

What is the appropriate area to consider cl 33?

The experts accepted that the area character was largely the visual catchment from the site although given the emphasis on viticulture, the area on the opposite side of the ridge that runs along the eastern edge of the site was also relevant.

What is the character of the area?

The experts accepted that that the area surrounding the site has a mixed character. The site has a rural character with gentle to moderate slope. It is cleared and contains three dams and some unattended grape vines. The site adjoins Saddler's Creek Winery to the south and open rural land to the north. Further to the north on the opposite side of Oakey Creek Road is the Iron Gate Winery. To the east of the site is the Kelman Estate, which has a more urban character but not at the same density as the residential development further to the east. Part of the eastern boundary of the site adjoins land occupied by the Cessnock Correctional Facility although the presentation to Oakey Creek Road is vegetated with the buildings some distance from the street. Land on the opposite side of the ridge is predominantly agricultural and viticultural in character. Native vegetation was located mainly within the road reserves and creeklines although some stands of vegetation exist away from these locations. Built form is generally sparse with some older style dwellings and newer buildings associated with the rural and viticultural activities.

What is the appropriate character for the site to consider cl 33?

The experts differed on what was the appropriate character for the site based on the hypothetical line that divides the urban and rural characters. Dr Pollard maintained that the appropriate demarcation between the rural and urban characters is Oakey Creek Road. This boundary reflects the zoning boundary that separates the urban and rural zonings. In his opinion, the development, being predominantly urban did not reflect the desirable elements of the rural character west of Oakey Creek Road. Mr McMahon and Dr Lamb rely on topographical and physical characteristics of the area and determined that an appropriate demarcation was the ridge to the western part of the site. In this context, the proposed development provides desirable elements of the urban form to the east that includes the Kelman Estate.

The location of the site at the interface of two different characters presents some practical difficulties in addressing the questions posed by cl 33, including any reliance on setbacks, building heights and landscaping given the setting of the site. In considering the different positions taken by the experts, I am satisfied that the conclusions Dr Pollard should be accepted for a number of reasons. First, I accept that while the predominant viticultural character of the area occurs after crossing the ridge on Marrowbone Road to the west of the site, existing viticultural operations exist and can be observed from the site (Iron Gate Winery and Settlers Creek Winery). I see no reason why these wineries do not help establish a viticultural character from Oakey Creek Road.

Second, there is no reason why the site and the land to the north could not be used for viticultural activities. Mr Gell maintains that the soil surveys conducted on the site establish that the land is not prime soils and as such could not produce prime fruit however Mr Hilder states that good quality fruit has been produced in the past from the site and there is no reason why this could not be continued in the future, with good management. While the site could not be categorised as "prime" agricultural land, it has the same agricultural classification as part of the Iron Gate Winery (Class 4) that appeared to operating in an effective manner based on the site inspection. Also, the site operated a viable wine growing operation in the past although with questionable management techniques. As I understand there was agreement that the existing vines on the site could be re-established, given proper management.

Third, and while a zone boundary or a road does not necessarily always provide a suitable demarcation line, in this case, it does anticipate two areas with distinct differences in existing and anticipated character. Some weight needs to be given to the zone boundary given that its location through LEP 1998 and LEP 2011 have been advertised, any objections considered, ultimately adopted by the council and gazetted.

Fourth, DCP-Part E3 specifically identifies the site as being located in the Vineyards District Locality Plan (Figure 1) and part of the site being located within a Visually Significant Area (Figure 3). The character of the Vineyards District Locality is relevantly described in cl 2, Appendix 1 as:

2. VINEYARDS CHARACTER

2.1 DESCRIPTION

The Vineyards District is characterised by the rising of the Brokenback Range from the valley floors of Black Creek. Remnant forest along the roadsides provides a reminder of woodland and grasslands which were once abundant across the district. Similarly, some remaining species of rainforest trees which grow along the banks of Black Creek are reminders of the likely rainforest habitat which existed at the time of European Settlement. ...

The history of European land use in the Vineyards District has resulted in a layering of uses primarily centered on viticulture, agriculture, wine production and the scenic qualities of the region. The imprint of early occupation of the land can still be experienced in the ordered pattern of narrow carriageways, vines and pastures. It is also clearly demonstrated in undulating lands extensively cleared for agricultural and viticultural activities, resulting in significant loss of natural vegetation.

The built environment has also evolved over time. Early building forms of the early to mid 1800's in the Vineyards District were usually associated with mixed farming. Places which remain from

this era are important reminders of early settlement and vineyards, and are likely to become of increasing interest to visitors and the community alike. Traditional sets of buildings designed for the manufacture of wine are also important landmark structures throughout the region. The Vineyards District, however, has changed with contemporary architecture often inspired by European viticultural styles. Increased tourist visitation has attracted smaller scale development such as cellar door sales and boutique wineries, and also large scale accommodation and

recreational developments. These changes, along with new land uses such as golf courses and large water treatment ponds have significantly modified the landscape.

In summary, DCP-Part E3 contemplates a particular character for the Vineyards District that displays elements such as remnant forest along the roadsides and creeks, layering of uses primarily centered on viticulture, agriculture or wine production, undulating lands extensively cleared for agricultural and viticultural activities, ordered pattern of narrow carriageways, vines and pastures, contemporary architecture often inspired by European viticultural styles, smaller scale development such as cellar door sales and boutique wineries and large scale accommodation and recreational developments.

Is the form and siting of the development appropriate in this context?

The council raised a number of separate issues in relation to the form and location and character of the development. These are:

Visual impact

The visual impact of the proposal was a significant issue in the proceedings in determining whether the proposed development was acceptable in its appropriate character context. In my view, the desirable elements of the location's current character can be obtained from visiting the area and the anticipated character from the form and type of development anticipated by the council's objectives and planning controls.

The existing character was observed on the site inspection. The character has been previously described (see par 96) and can be summarised as cleared undulating agricultural land with native vegetation consisting mainly along road reserves and creek lines with the dominant land use consisting of viticultural activities and grazing. The built form consisted of older rural style structures, dwellings and more contemporary designs associated with viticultural and rural activities and ancillary uses.

In terms of anticipated character, the Zone 1(v) objectives seek:

(a) to maintain prime viticultural land and enhance the economic and ecological sustainability of the Vineyards District, and

(b) to encourage appropriate tourist development consistent with the rural and viticultural character of the Vineyards District, and

(c) to minimise conflict between viticultural and non-viticultural land uses by ensuring sympathetic location and design of those uses, and

(d) to enable continued rural use of land which is complementary to the viticultural character of land within this zone, and

(e) to protect the water quality of receiving streams and to reduce land degradation, and

(f) to actively promote the need to conserve and enhance the biodiversity of the Vineyards District, and

(g) to conserve the aboriginal archaeology and european heritage of the Vineyards District.

The objectives provide a clear emphasis on maintaining and enhancing the Vineyards District and encouraging appropriate associated tourist development. Similar objectives are provided for the RU 4 zone under LEP 2011.

The uses permissible, with consent, for the 1(v) zone are:

Animal boarding, breeding or training establishments (other than for dogs); art galleries; bed and breakfast accommodation; cellar door facilities; child care centres; commercial vineyards; community centres; commercial signs; conference facilities; dams; dwelling-houses; environmental facilities; home industries; home occupations; horse training establishments; integrated tourist development; motels; picnic grounds; places of assembly; public buildings; reception establishments; recreation facilities in association with tourist accommodation buildings; refreshment rooms; riding schools; sheds; stables accommodating more than 2 animals; tourist accommodation buildings; tourist-related shops in association with integrated tourist development; tourist-related craft shops; underground coal mining which does not involve surface works or infrastructure; utility installations; wine storage facilities; wineries.

Unsurprisingly, the viticulture theme runs through the permissible uses but there is no exclusivity for viticultural and related activities although cl 9(3) provides that consent must not be granted unless the development is consistent with the zone objectives.

DCP-Part E3 provides further guidance for future development in relation to density, dwelling location and setbacks and consequently, the character anticipated for the Vineyards District. For comparison, the maximum number of tourist accommodation units for a 44 ha site is 66 (cl 3.2.4). These units are to be located within 15 buildings (Table 3.7.4(a)) if landscaping is provided along "property boundaries and creek lines" (cl 3.2.4(2)). The maximum floor space ratio is 0.1:1. The buildings should be "clustered to minimise site impact of the development" (cl 4.1.1, Appendix 1) and not located on "major ridges and high points... so as not to interrupt the natural skyline" (cl 4.1.3, Appendix 1). The front setback should be a minimum of 75 m (cl 3.2.5.1) and the side setback a minimum of 50 m (cl 3.2.5.2).

In considering that the proposed development provides for the construction of 177 self-contained dwellings, 20 hostel assisted living serviced apartments, a residential care facility incorporating 40 rooms, communal facilities, a dwelling to be used as a manager's residence, landscaping and some acoustic mounding in the setback areas, I am not satisfied that adequate regard has been given to "recognise the desirable elements of the location's current character" or the character anticipated by the councils planning controls.

The development, while providing good setbacks of around 100 m also provides a very dense urban built form over the remainder of the site. The number of dwellings and their separation provides for a large expanse of roof form and bulk that will be visible from parts of the Kelman Estate and from Oakey Creek Road and Marrowbone Road. While I understand that the landscaping has been designed to screen the development from many locations, I am not convinced that it is appropriate that landscaping be used to screen or hide a development that is uncharacteristic and inconsistent with the character of the area. Even if this was considered as an appropriate way to address the form of the development, the need to provide the setbacks as Asset Protection Zones for bushfire protection is likely to impinge on the ability to use the setbacks to screen the large amounts of built form. The need for an acoustic mound on Marrowbone Road also creates an obvious element that is peculiar to the area. Landscaping is supposed to reinforce the roads and creek lines (cl 3.2.4(2)) and be clumped around new developments and not in rows (cl 4.1.4, Appendix 1) and not be used to principally screen the development.

I agree with Dr Pollard and Mr Broyd that the extent of built form manifests itself in ways that are inconsistent with the character anticipated for the site. The cut and fill for the internal access roads, at around 2 m in some locations, is excessive and is necessary to provide access to the large number of self-contained dwellings. In my view, the cut and fill is not "kept to a minimum" (cl 4.2.2, Appendix 1). Even though the retaining walls are terraced and the cut and fill is obscured by the proposed buildings; this is more of a function of the large amount of buildings on the site rather than minimising cut and fill.

The need for mounding and fencing that changes the natural rural topography to minimise the visual and potential acoustic impacts from the assisted living serviced apartments and residential care facility is inconsistent with the anticipated character where development should not be located on "major ridges and high points... so as not to interrupt the natural skyline" (cl 4.1.3, Appendix 1). The two - storey form of these buildings is also at the highest point on the site although I accept that the maximum height of 8 m is not exceeded.

While the proposal satisfies the setbacks and as I understand, the floor space ratio it does not necessarily follow that compliance with these elements would make the proposed development more acceptable. It may well be that a permissible development, for example, an integrated tourist development, may have similar setbacks or a similar floor space ratio as the proposed development and be acceptable, however this use is a use that is anticipated and recognised as a use that can compliment the existing and anticipated character of the area.

For the reasons set out in the preceding paragraphs I find that pursuant to cl 9(3) the development is consistent with the objectives of the zone, particularly objectives (a), (b) and (d) and as such the development must be refused.

The proposed buildings

Dr Pollard expressed concern over the design and set out of the proposed buildings. He describes the set out of the cottages and duplexes as monotonous and the design lacking in local character. Mr McMahon has similar views on the design, but not necessarily the number of dwellings, and states:

Within the site, greater variety could be introduced into the presentation of buildings via application of a wider variety of architectural elements, facade and roof materials and colours. Building placement along internal roads could be pivoted / reoriented along the building line slightly, so that a monotonous repetition of buildings addressing the roads is avoided. As the dwellings will generally not be visually evident from public places, I consider that these are minor items that are not determinant to the assessment of the proposal. The improvements could be incorporated into any conditions of consent crafted to the effect that:

• Buildings shall incorporate a greater diversity of architectural elements, facade and roof materials and colours to introduce greater variety in the presentation of buildings within the site; and

• Buildings shall be pivoted along the building line to introduce articulation and variety in setbacks from internal roads.

I agree with the concerns expressed by Dr Pollard and the amendments suggested by Mr McMahon and if the development were to be approved I would require the amendments to be provided by way of additional plans rather than as conditions of consent.

The "Gateway"/loss of tourist trade

I agree with Mr McMahon and Dr Lamb that the role of Oakey Creek Road as a gateway to both Cessnock and the vineyards is at best, minor and that the development will not result in any change in opinions, expectations or perceptions of the vineyards district in the eyes of tourists and other visitors that could have any impact on the tourism profile of the area.

In my view, the concerns of Mr Broyd and Dr Pollard on the loss of an entry treatment and a negative impact on the potential tourist trade are overstated. I agree with the submission of Mr Clay that persons attending the Vineyards District are unlikely to be so offended by the proposed development that they would likely terminate their visit or not return at another time. Similarly, I do not accept that where the proposed development can be viewed from the Iron Gate Winery that, whether in a tourist coach or a private car, it would be unlikely that any patrons would be so offended that they would not return to the area because the proposed development could be seen, some hundreds of metres away.

If there were no other reasons that development application should be refused, any potential loss of an entry statement or Gateway or a potential loss of tourist trade would not be a reason to refuse the application.

Amenity of future residents

The council identified noise, overspray and odour in the contentions although odour was ultimately not pressed.

Noise is addressed by the applicant through three reports by AECOM Australia Pty Ltd (December 2011, 12 April 2012 and 18 May 2012). The 18 May 2012 report makes the following relevant comments (at pp18,19):

The noise impact at representative worst affected nose sensitive receivers has been predicted. Exceedances of the Intrusiveness Criteria of up to 23 dB(A) during the day and evening have been predicted. The maximum predicted exceedance at night is 20 dB(A). It is critical to note that these exceedances are due to operations which typically occur for a few hours per fortnight between September and November, with the possibility of some spraying up until April. Outside of these times noise produced from viticultural operations are expected to be minor.

Furthermore, the noise sources considered are currently operational all across Hunter Valley and the predicted noise impact at the proposed development is considered to be typical of any residences situated close by to operational vineyards. In some instances, where noise sensitive receivers are closer to larger scale operations, it is considered likely that a more acute noise impact may currently be experienced.

These results are considered to represent the worst possible case and do not take into account attenuation provided by additional mitigation options discussed in Table 9. Mitigation provided by barriers formed by landscaping has already been included in the assessment.

.

Mitigation Measures

The following mitigation measures have been proposed by the developer to minimise noise impacts:

• A noise mound running along the southern border of the site in order to shield the worst affected residences along the southern border of the site from noise from Saddlers Creek Winery. This mound has been included in the impact assessment.

• Provide air conditioning to all residences in order to provide ventilation to residences while windows and doors remain closed.

• In units along the southern boundary of the property, move all windows from the southern facades of units along the southern boundary to the eastern or western facades in order to minimise noise directly incident on windows, and provide glazing to all bedroom windows.

• Implement a management plan that will include resident education with regard noise issues on site.

Mr Leathley maintains that noise can be adequately addressed through the mitigation measures identified in the AECOM report whereas Mr Broyd maintains the need for measures such as the noise mound and air conditioning to allow windows to be closed highlight the incompatibility with the nearby viticultural lad uses and the potential for complaints.

On the question of noise, I agree with Mr Broyd. I do not accept that it should be necessary that windows be closed to mitigate any noise impacts, even though they may be limited in time and duration, in a new development in a rural setting. Similarly, I do not accept that it should be necessary to construct acoustic mounding along the southern border of the site to mitigate noise from Saddlers Creek Winery given that an acoustic mound would be an inconsistent feature with the vineyard character of the area. Also, the role of a plan of management that effectively seeks to overcome any noise issues by simply advising future residents of the potential noise problems associated with the nearby viticultural activities is questionable, in my view.

The mitigation measures are, in my view, the direct result of the amount of development on the site. Potentially, with fewer self-contained dwellings or a design that actually responds to the acoustic constraints (as well as other constraints), it is possible that noise could be addressed without the imposition of uncharacteristic mounding and unacceptable amenity impacts on future residents by having to keep widows closed. I am also mindful of the evidence given by a number of viticulturists of the unpredictability of maintaining and harvesting grapes that can result in regular periods of night-time activity.

For the reasons set out in the preceding paragraphs on noise, I find that pursuant to cl 9(3) the development is inconsistent with objective (c) of the zone, and as such the development could be refused for this reason.

The issue of spray drift was addressed in the AECOM report where it stated that the setbacks complied with the requirements in the DCP-Part E3 and that no adverse impacts were expected. I did not understand the council to challenge this conclusion.

Access to facilities

Water and sewer

Mr Broyd states that the preferred option of the applicant is to connect to existing facilities on Mount View Road approximately 1300 m from the site, which has the capacity to serve the development. Mr Broyd notes that the requirements of Hunter Water are significant and consideration of any approval could only be predicated on a deferred commencement condition that requires the endorsement of Hunter Water that all requirements have been met.

If development consent were to be granted, I agree with the approach suggested by Mr Broyd

Access to facilities

Clause 26(1) states:

26 Location and access to facilities

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b) community services and recreation facilities, and

(c) the practice of a general medical practitioner.

Clause 43 states:

43 Transport services to local centres

(1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development:

(a) that will drop off and pick up passengers at a local centre that provides residents with access to the following:

(i) shops, bank service providers and other retail and commercial services that residents may reasonably require,

(ii) community services and recreation facilities,

(iii) the practice of a general medical practitioner, and

(b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.

(2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia.

(3) In this clause, bank service provider has the same meaning as in clause 26.

Mr Leathley states that the requirement for access to facilities outside the site is to be addressed by a Village Bus that is required by the Management Plan. This relevantly states:

6. Transport

The Village will have a Village Bus which is capable of carrying at least 10 passengers.

The Village Bus:

(a) will drop off and pick up passengers in the Central Business District of Cessnock

(b) will be available both to and from the Village to the Cessnock Central Business District at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.

(c)will also be available for:

(i) Pre-arranged outings; and

(ii) Resident's to book with prior notice

While accepting that safe pedestrian access to Cessnock is more desirable than the proposed bus, I accept that the requirements of cl 26 is satisfied by the provision of a Village Bus although greater specificity would be required in the Management Plan to address the staging of the proposed development and the transport needs at each stage.

Other contentions

Other matters raised during the proceedings have been, or can be addressed through conditions of consent. These relate to stormwater disposal, undergrounding of existing transmission lines, protection from bushfires and protection of the remnant Lower Hunter Spotted Gum Ironbark Forest.

Orders

The orders of the Court are:

1. The appeal is dismissed.

2. Development Application 8/2011/415/1 for the construction of a development for seniors or people with a disability at the corner of Marrowbone Road and Oakey Creek Road Pokolbin is refused.

3. The exhibits are returned with the exception of exhibit 19.

___________

G T Brown

Commissioner of the Court

Decision last updated: 24 April 2013

Medium Neutral Citation:	Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070
Hearing dates:	12,13,14 December 2012, 20,21,22 February 2013
Decision date:	24 April 2013
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application 8/2011/415/1 for the construction of a development for seniors or people with a disability at the corner of Marrowbone Road and Oakey Creek Road Pokolbin is refused. 3. The exhibits are returned with the exception of exhibit 19.
Catchwords:	DEVELOPMENT APPLICATION: construction of a development for seniors or people with a disability - whether permissible development - whether contrary to the existing and preferred future use of the land for winegrowing activities - whether the proposed development may restrict winegrowing activities on nearby and adjoining properties by way of complaints - impact on the visual character of the area - stormwater disposal - availability of water and disposal of sewage - inadequate protection from bushfires - inadequate access to local services
Legislation Cited:	Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302 Cessnock Local Environmental Plan 1989 Cessnock Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Rural Lands) 2008
Cases Cited:	ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147, Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52, Fairview Estates Vineyard Pty Ltd v Mid-Western Regional Council (2005) 143 LGERA 253, Hornsby Shire Council v Malcolm (1986) 60 LGERA 429, Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, Mathieson v Burton (1971) 124 CLR 1, Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 243 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195.
Category:	Principal judgment
Parties:	Signature Gardens Retirement Resort Pty Limited (Applicant) Cessnock City Council (Respondent)
Representation:	Counsel Mr P Clay SC with Ms A Hemmings, barrister (Applicant) Mr T Robertson SC (Respondent) Solicitors Caldwell & O'Brien Solicitors (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	10874 of 2012