T & K Berry v Wollongong Council

[2008] NSWLEC 210

Land and Environment Court

of New South Wales

CITATION:

T & K Berry v Wollongong Council [2008] NSWLEC 210

PARTIES:

T & K Berry (Applicants)
Wollongong Council (Respondent)

FILE NUMBER(S):

10230 of 2008

CORAM:

Jagot J

KEY ISSUES:

Development Application :- appeal - ecotourism facility - whether development properly characterised as ecotourism facility or dwelling house - whether prohibition on erection of dwelling houses applies to manager's residence - whether development appropriate - precedent - cumulative impact - weight to be given to draft environmental planning instrument not yet exhibited

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Hawkesbury City Council v Sammut (2002) 119 LGERA 171
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532

DATES OF HEARING:

9/7/08 - 11/7/08

 
DATE OF JUDGMENT: 

23 July 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M Craig QC with Ms A Pearman
SOLICITORS
Mills Oakley Lawyers

RESPONDENT
Mr P McEwen SC with Mr M Seymour
SOLICITORS
Kells The Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

23 July 2008

10230 of 2008

TIM AND KATHRYN BERRY
Applicants

WOLLONGONG CITY COUNCIL
Respondent

JUDGMENT

Jagot J:

1 The applicants have appealed against Wollongong City Council’s refusal of their development application proposing an ecotourism facility on lot 60 in deposited plan 1000343, known as 2 Morrison Avenue, Coledale (s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act)).

The issues

2 By closing submissions the parties agreed that there were four issues that must be considered:

(1) What is the proper characterisation of the development? The applicants contend that the development is properly characterised as an ecotourism facility. The Council contends that the development is properly characterised as a dwelling house or a dwelling house and ecotourism facility.

(2) Does cl 14 of the Wollongong Local Environmental Plan 1990 (the WLEP 1990) apply to the development? Clause 14 prohibits the erection of dwelling houses on certain land including the site.

(3) Is the development on the part of the site known as the upper bench area (and/or the residential component of that development) acceptable?

(4) Will the grant of consent to the application create an unacceptable precedent?

The site

3 The site is some 17 hectares located to the west of Morrison Avenue. Morrison Avenue runs generally in a north-south direction through one of the foothills of the Illawarra escarpment between Austinmer and Wombarra. The site has an irregular shape and consists of a lower and upper part. The lower part is located at about the 130m contour and the upper part at about the 140m contour and above. Three smaller lower areas are immediately adjacent to Morrison Avenue. The previous owners obtained development consent in 2001 to construct a dwelling on the southern-most lower area. They constructed the garage component only.

4 A steep driveway connects the lower areas of the site to the upper area and the remainder of the site (the majority of the 17 hectares). This part of the site has a markedly different character. The upper part contains a bench area or flat expanse of over 2 hectares. Within the central part the bench consists of a cleared and maintained (mowed) grass area with some scattered trees. This clearing has existed for many decades and has historical associations with activities carried out as part of the early development of Coledale including a sawmill operation (the ruin of the sawmill remains on an adjoining property) and orchard. The clearing in this part of the site is about 100m wide and 350m long. To the east the upper bench slopes down towards Morrison Avenue. Dense Blackbutt and Eucalypt forest cover the eastern slope. The presence of this vegetation and topography means that the upper area cannot be seen from Morrison Avenue. To the west is a magnificent view of the escarpment, starting with dense rainforest vegetation on the site and continuing up the escarpment, ultimately rising to sheer cliff faces. This large open bench area enclosed by dense vegetation rising to stark cliff faces is visually striking.

5 Aerial photographs disclose the broader context of the site. They show Morrison Avenue and Buttenshaw Drive running generally north-south dividing the lower foothills of the escarpment formation from its upper reaches. Morrison Avenue (near the site) has the ambience of low-density residential development on large well-vegetated lots, interspersed with undeveloped areas. There are other partly cleared benches on the upper areas visible, mainly to the north of the site. Other than one dwelling house and a water tank to the south of the site, there is no development apparent in or west of the upper bench area. Accordingly, the development (if approved) would be located further up the escarpment than the predominant line of development close to Morrison Avenue.

The application

6 The development is described in various documents as the Coledale Rainforest Retreat. Development is proposed on both the lower and the upper area, the latter within the large cleared bench at the southern end of the site.

7 The lower area (containing the garage) will be occupied by an additional two storey building to the east of the garage. This building is set back about 26m from Morrison Avenue. It contains two cabins, one on the ground and one on the first floor. The cabins each have two bedrooms, a bathroom, kitchenette and lounge opening onto a terrace. The cabins incorporate a solar hot water heating system. Rainwater tanks are also proposed. Sewer is to be collected in and pumped to the upper bench area where treatment is proposed.

8 The upper bench area will be occupied by a principal structure containing two wings. The eastern wing is two storeys and the western wing single storey. The eastern wing contains two bedrooms, a study and a bathroom on the ground floor and a bedroom and terrace on the first floor. The bedrooms, study and terrace are proposed for exclusive use as a manager’s residence. The bathroom in the eastern wing and the facilities in the western wing are proposed to be available for guests of and visitors to the facility. The wings are linked by a breezeway containing a native reptile display area. The western wing contains a lounge, conference and lecture area that also serves as a kitchen, dining area, and computer study area, as well as a separate retreat lounge and educational exhibits area. Ancillary structures are also proposed in connection with the principal building including terraced areas, a pool, spa pool, cabana, outside cooking facilities, change room, shower and toilet, and visitor’s relaxation room on the ground floor and viewing platform and facility administration office on the first floor.

9 The existing driveway linking the lower and upper bench areas is to be extended along the eastern side of the structures on the upper bench area to a garage. Two further water tanks are located to the south of the garage with all roof water fed into the tanks. Sewage is to be treated and irrigated through an “Envirocycle” system. The sub-surface irrigation field is to the south of the garage and occupies an area of 1346m2.

10 The application was lodged on 30 November 2007. Lodgement followed the Council’s refusal of another application in 2007 to erect a dwelling on the upper bench area (in contrast to the consent granted in 2001 to the erection of a dwelling on the lower area). The application was notified and attracted both objections and support. The Council officer allocated the application for assessment recommended that consent be granted subject to conditions. Ms Fuller, the Council’s City Wide Development Manager, disagreed with this recommendation and prepared a further assessment report pursuant to which the application was refused consent.

Planning regime

11 The site is zoned Zone No 7(a) (Special Environmental Protection Zone) and Zone No 7(b) (Environmental Protection Conservation Zone) under the WLEP 1990. The development is confined to that part of the site zoned 7(b). The 7(b) zone extends from the Morrison Avenue frontage to the rear of the site at its southern end (where the cleared bench is located) with most of the land zoned 7(a) to the upper northern end of the site. The objectives of the 7(b) zone are as follows:

(a) to identify, protect and enhance areas that have special conservational, aesthetic or scenic qualities that enhance the environment, and
(b) to identify and protect escarpment areas that enhance the visual amenity and possess special aesthetic or conservational value, and
(c) to allow some diversity of activities on degraded land that will not prejudice achievement of the objectives referred to in paragraphs (a) and (b) or significantly detract from the environmental or visual quality or character of the locality or the amenity or operation of any existing or proposed development in the locality.

12 These zone objectives take effect through cl 9(3) requiring the formation of an opinion about consistency of the development with the zone objectives before there is power to grant consent to any application for development.

13 The table to the 7(b) zone provides as follows:

2 Without development consent
Exempt development.

3 Only with development consent
Development for the purpose of:
advertisements; dwelling-houses; ecotourism facilities; granny flats; home employment; leisure areas; utility installations.

4 Only with development consent granted after advertising and satisfying clause 11
Development for the purpose of:
agriculture; buildings used in conjunction with agriculture; child care centres; educational establishments; mines; recreation areas; restaurants.

5 Prohibited
Any development not included in item 2, 3 or 4.

14 Clause 6(1) defines various terms including the following:

dwelling means a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile, and includes a granny flat.

dwelling-house means a building or buildings containing one but not more than one dwelling, on one allotment.

ecotourism facility means any nature-based tourism, educational or interpretative facility that is constructed and managed so as to be ecologically sustainable and without detrimental impact on the ecology of the locality. It may include some form of guest accommodation (but not a caravan park), facilities for provision of meals and a manager’s residence.

15 Clause 14(1) is in these terms:

(1) The Council shall consent to the erection of a dwelling-house on an allotment of land within Zone No 1, 7 (b) or 7 (d) only if there is no dwelling-house on the allotment and if the allotment:
(a) is an existing holding which has an area of not less than 10 hectares, or
(b) is an allotment:
(i) which was created after 30 April 1971 but before 23 February 1984, and
(ii) which has an area of not less than 20 hectares, or
(c) is an allotment of not less than 40 hectares, or
(d) is an allotment which was created before or after the appointed day:
(i) by a subdivision approved by the Council not more than 2 years before that day, or
(ii) (Repealed)
and if the Council is satisfied that:
(e) …

16 On 17 May 2002 Amendment No 5 to State Environmental Planning Policy No 1 – Development Standards (SEPP 1) came into force. This amendment excluded the application of SEPP 1 from land within certain areas of Wollongong including the site. It is common ground that the site does not satisfy any of the prerequisites specified in cl 14(1) (hence, the Council’s refusal in 2007 of the application for a dwelling house on the upper bench area).

17 Other clauses within the WLEP 1990 are relevant (cll 17(1), 17(2), 17(5), 17(6), 29C, 30, and 32(2) in particular) but the Council did not suggest that any of these provisions precluded the grant of consent.

18 The history of planning controls applying to the site and its surrounds sets the context for understanding and evaluating many of the competing submissions of the applicants and the Council.

19 The zoning of the site as part 7(a) and 7(b) apparently has not altered since the commencement of the WLEP 1990. Limited classes of development, including dwelling houses, were permissible in the 7(b) zone under the WLEP 1990 as made (with cl 14 applying to dwelling houses). Clause 14 has been part of the WLEP 1990 since commencement (albeit subject to some minor amendments). Clause 14 was subject to SEPP 1 until 17 May 2002 (hence, the Council’s grant of consent in 2001 to a dwelling house on the lower part of the site). Ecotourism facilities were not referred to in the WLEP 1990 and would have been prohibited development on the site before amendments to that instrument on 13 April 2006 (discussed below).

20 Development pressures led to a Commission of Inquiry in 1999 about the long-term planning and management of the Illawarra Escarpment. The Inquiry report recognised the escarpment as arguably the single most important landscape feature in the Illawarra region. It concluded that the area west of Morrison Avenue should not be developed but, rather, rezoned from 7(b) to 7(a) to “prevent further encroachment onto the Escarpment core area”. Specific findings included that inadequate attention had been given to the cumulative impact of development on the land zoned 7(b) with a need for detailed studies about the grouping of such development and the resulting visual and ecological impacts. Specific recommendations included the rezoning of all undeveloped lands west of Morrison Avenue (amongst other roads) between Austinmer and Wombarra from 7(b) to 7(a) and, in the short-term, preventing approval of any more residential development west of these roads. At this time, it is apparent that development for the purpose of any form of tourism facility was not permissible on land zoned 7(b) and thus not contemplated by the Commission of Inquiry report.

21 As noted, SEPP 1 was amended in May 2002 so as to prevent its application to certain lands in the Wollongong area. The effect was to ensure that land zoned 7(b) could not be developed for a dwelling house unless the requirements of cl 14(1) as to minimum areas were satisfied. The site does not satisfy those minimum area requirements.

22 By May 2004 the Council had started an interim review of the WLEP 1990. On 24 May 2004 the Council resolved to submit a draft local environmental plan amending the WLEP 1990 to the Department of Planning under s 64 of the EPA Act. The draft amendment contained a definition of ecotourism facilities and identified an objective of encouraging development of these facilities in the area by introducing this development purpose as permissible in various zones. At around the same time the Council prepared a strategic management plan for the Illawarra Escarpment, which informed part of the WLEP 1990 interim review process. The strategic management plan involved numerous government departments and extensive community consultation, including six workshops and a four month public exhibition period. The Council adopted the strategic management plan in May 2005. The Minister subsequently approved the strategic management plan in May 2006.

23 The strategic management plan adopted by the Council did not recommend the rezoning of the land west of Morrison Avenue from 7(b) to 7(a) as recommended by the Commission of Inquiry. Instead, the strategic management plan proposed four new zones with the core escarpment area being recognised as the most sensitive. The site is mostly within this core escarpment area (except for the lower part near Morrison Avenue). The strategic management plan also dealt specifically with the new concept of ecotourism. Section 4.9 of the strategic management plan recorded that public access to and use of the escarpment would be important to strengthen community respect for the escarpment’s natural and cultural values. Ecotourism was seen as having two-way benefits – creating employment and fostering environmental education. Ecotourism was said to be practically non-existent in Wollongong, with only 5% of visitors visiting natural areas. The natural and geographic uniqueness of the escarpment was described as an opportunity for attracting increased ecotourism activities. The strategic management plan said that it was proposed to encourage ecotourism on the escarpment. Further, in core areas ecotourism would probably be limited to previously disturbed areas with appropriate infrastructure, including access, electricity and potable water supply.

24 The WLEP 1990 interim review process culminated in the making of Amendment No 235 to the WLEP 1990 published in the NSW Government Gazette on 13 April 2006. This amendment followed the process for preparation, certification, public exhibition, submission to the Minister, and making in Pt 3 of the EPA Act. It represented a comprehensive interim review of the planning controls introduced in 1990 through the WLEP 1990. Amendment No 235 did not rezone the land west of Morrison Avenue from 7(b) to 7(a). Amongst other things Amendment No 235 introduced a definition of ecotourism facility as contemplated in the report to the Council in May 2004 and the strategic management plan. It also remade each of the zoning tables. In so doing Amendment No 235 made ecotourism facilities permissible with consent in various zones including the 7(b) zone. Ecotourism facilities were not identified as permissible development in the 7(a) zone and thus remained prohibited in that zone. Clause 14 remained. Accordingly, through its strategic management plan and Amendment No 235 to the WLEP 1990 in 2005 and 2006 respectively the Council both permitted and encouraged the development of ecotourism facilities on the escarpment in the 7(b) zone.

25 In January 2007 consultants to the Council finalised the Illawarra Escarpment Land Use Review Strategy. This document was submitted to and adopted by the Council in August 2007 on the basis that it would inform a proposed draft local environmental plan and would be exhibited with it as background material. Accompanying reports and studies recorded that Morrison Avenue was located on the 130m contour with visibility altering depending on topography and the availability of screening vegetation. The visual quality analysis recommended mitigating measures for development noting that existing clearings provided certain “development opportunity envelopes” that might satisfy an objective of development being permitted if it achieved a net gain in the scenic and aesthetic values of the escarpment.

26 The land use review strategy noted that the area west of Morrison Avenue, if inappropriately developed, might be seen from some distance. It referred to the recommendation of the Commission of Inquiry about residential development west of Morrison Avenue (amongst other roads), concluding that the recommendation was appropriate given the visual, bushfire and other constraints to which these areas were subject. It recommended a new zoning division based on the 140m contour. The land use review strategy included a draft local environmental plan. Subject to certain site specific amendments, the Council resolved to submit the draft local environmental plan (the draft WLEP 2009) to the Department under s 64 of the EPA Act on 24 June 2008.

27 The draft WLEP 2009 has not yet received a certificate under s 65 of the EPA Act to permit its public exhibition. If and when a certificate under s 65 is received it is proposed to exhibit the draft WLEP 2009 and the accompanying background material (including the land use review strategy) for at least two months under s 66.

28 The draft WLEP 2009 submitted to the Department of Planning contains separate definitions of ecotourism and environmental facility. The definition of ecotourism is similar to its present definition (although with more emphasis on the development being located on existing clearings and a requirement that dwelling houses be permitted on land where any ecotourism development is proposed). The definition of environmental facility is more limited, meaning a building or place that provides for the recreational use or scientific study of natural systems, and includes walking tracks, seating, shelters, board walks, observation decks, bird hides or the like, and associated display structures.

29 The draft WLEP 2009 contains new zones including zones E2 Environmental Conservation and E3 Environmental Management. The division between the two zones reflects the recommendation in the land use review strategy to follow the 140m contour. This contour bisects the existing 7(b) zone so that the whole of the upper bench area on the site would be located in the E2 zone, with the lower area only within the E3 zone. Dwelling houses, ecotourism and environmental facilities are proposed to be permissible with consent in the E3 zone. Dwelling houses and ecotourism would be prohibited in the proposed E2 zone. Accordingly, the land use review strategy and draft WLEP 2009 reflect a different policy for ecotourism development. The effect of the new policy (if implemented in the same terms as the draft WLEP 2009) would be to prohibit ecotourism facilities within any part of the core escarpment area.

The evidence

30 Commissioner Tuor and I inspected the site and its surrounds on the first morning of the hearing. In addition to the letters objecting to and in support of the development a number of residents gave evidence on site. Some were immediate neighbours (given the irregular shape of the site, it has numerous neighbours) and some were not.

· Mrs Kaushik and her family are neighbours to the site on Morrison Avenue. They opposed the development. They moved there for the 7(b) zoning assuming it would prevent development. Although they did not want the 8 person cabins next door their main concern was the precedent of permitting ecotourism development on the upper bench area.

· Mr Beswick, the co-convenor of the neighbourhood committee, shared this concern about inappropriate precedent. There was no other development at this level. Such developments would have cumulative impacts on the value of the escarpment. The development included a house and thus by-passed the limits of the WLEP 1990 on houses if the ecotourism venture was unsuccessful.

· Mr Keski-Nummi also held this view considering that the location of the development on the upper bench was the real problem as it would threaten the ecological value and biodiversity of the escarpment.

· Mr and Mrs Montague were concerned about increased traffic along Cater Street. The street had a hairpin curve and drivers unfamiliar with it already ended up in his brother’s front yard.

· Mrs Wright, another immediate neighbour (whose property contains the ruins of the old sawmill), did not accept that the weed removal and revegetation parts of the proposal could possibly be seen as justifying this large development. She thought that the natural habitat had been discouraged on the site over the last four years by continued mowing. Mrs Wright described the environment on the upper escarpment as very fragile with many watercourses. Development could affect water flows, including on to her property.

· Mr Hall accepted the applicants’ good intentions but considered that the long-term impacts of human encroachment on the escarpment would be unacceptable. He and many other locals had been involved in the process of preparing the draft WLEP 2009. The underlying principle was always that the upper bench should remain inviolate. The upper escarpment was simply too fragile for human use and was suitable only as a corridor for wildlife. Allowing development within that corridor would be an unacceptable precedent.

· Mr Venn was the previous owner of the site. He noted that the upper escarpment area had been extensively logged and farmed in the past. Active management was required to prevent lantana and other weeds taking over. He thought that having an ecotourism facility including a manager’s residence on the upper bench area was the best way to ensure ongoing active management. He was a member of the chamber of commerce and also considered that ecotourism would make the area more vibrant and encourage education about the natural values of the escarpment.

· Mr Ellis generally agreed with Mr Venn observing that they also had removed acres of lantana from their property. Wild goats and dogs were also common. When land was privately owned Mr Ellis considered active management essential; having the ecotourism facility and associated educational opportunities on the upper bench would benefit the environment and community.

· Mr Robson saw an ecotourism facility as the best way to ensure the fragile environment of the escarpment was managed and restored, without which lantana and other weeds would overtake it.

· Ms Murray also thought having the facility would encourage the restoration of the environment.

31 Ms Fuller and Mr Shiels, planners, gave evidence. This evidence, and other documentary material, is dealt with as part of the consideration of the four issues relied on by the Council as supporting refusal of the application.

Characterisation

32 Ms Fuller (and various residents in their objections) considered the development purpose to be either dwelling house or ecotourism facility and dwelling house in circumstances where cl 14 of the WLEP 1990 prohibits development for the purpose of a dwelling house on the site. Ms Fuller considered numerous features of the proposed development consistent with this characterisation: -


(1) The cabins where guests would stay are located on the lower area and thus are separated by a considerable distance (about 300m) and very steep driveway from the ecotourism activities and facilities located on the upper bench area.

(2) The steepness of the driveway will deter guests staying in the cabins from participating in the ecotourism activities on the upper bench area, while the use of cars to traverse the driveway would be contrary to the essential character of an ecotourism development.

(3) By reason of these factors, the development was not well integrated; guests might stay in the cabins and visit the area’s attractions (such as the beaches) without engaging in the ecotourism activities the development is intended to promote.

(4) The facilities on the upper bench area are close to the manager’s residence and more likely to be used by the manager and their family than guests.

(5) The relative proportions of the development allocated for exclusive use as part of the manager’s residence and for use of guests indicate that the dominant use will be as a dwelling house for the manager and their family.

(6) The scale of the proposed ecotourism activities apparent from the application does not warrant an on-site manager and certainly not three bedrooms and a study for the manager.


33 The Council also submitted (and some residents noted) that the plans for the development on the upper bench area were virtually identical to those for the dwelling house rejected in 2007. Further, an ecotourism facility did not have to include a manager’s residence but, if it did so, the definition of that term permitted only “a manager’s residence”. According to the Council this should be construed to mean a residence for one person holding the position of manager, whereas the manager’s residence in the development would have three bedrooms and a study for the manager’s exclusive use. Finally, the documents accompanying the development application did not suggest that the manager would need to have any formal qualifications or experience. For these reasons the Council submitted that the principal purpose of the development was personal residential use (that is, a dwelling house).

34 The proper approach to the characterisation of the purpose of development is well known. The established principles are summarised in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27] – [50]. In this case it must be recognised that the relevant definition expressly provides that an ecotourism facility may include a manager’s residence. The Council’s submission that the definition contemplates a residence for one person only (being the manager) by the use of the singular “a” in the reference to a manager’s residence is inconsistent with the ordinary meaning of the phrase. A manager’s residence means a place where a manager may reside whether the manager is one person alone, one person with a family, or more than one person. Whether a place is being used as a manager’s residence or not, as with all questions of the purpose of a use, will depend on a common sense assessment of the character, extent and features of the various uses and the ends they apparently serve.

35 The matters relied on by the Council do not support the characterisation of the purpose of this development as other than an ecotourism facility including (as is permitted) guest accommodation and a manager’s residence. The end or object that all of the components of this development serve is a nature-based tourism, educational and interpretative facility which includes guest accommodation in the form of cabins and a manager’s residence.

36 The site is some 17 hectares, much of which is well vegetated (although with heavy weed infestation requiring ongoing removal and rehabilitation). Spectacular views to the upper escarpment are available from the upper area of the site. All facilities are proposed to be located on the existing cleared expanse on the upper area. There is sufficient space and environmental diversity on the site to carry out the range of nature-based activities proposed including learning bush regeneration skills, native flora and fauna identification, weed removal techniques, and feral animal control, as well as interpretative walks, exploration of the three creek lines within the site, night walks, native seed collection and propagation techniques, native tree planting, bird watching, and astronomy. The development also contains space for more formal educational activities including a small lecture theatre/conference area, educational exhibits area, and native reptile display area. The lack of any specific requirement in the development application for the manager to hold formal qualifications is of no significance. Conditions can require bushland restoration activities to be carried out under the supervision of suitably qualified people. Management requirements will also presumably need to be sufficiently flexible to respond to market considerations from time to time. The fact that the applicants made an earlier application for a dwelling house using the same base design also does not undermine the characterisation of the present proposal as an ecotourism facility.

37 The development incorporates features intended to ensure that it is ecologically sustainable including solar hot water, recycling and reuse of all grey water, and capture and reuse of all roof water. The development on the lower area has been placed within the footprint of the dwelling approved in 2001 (that consent having been commenced) and will require removal of less vegetation than that development. The development on the upper area is located within the existing cleared area. It was common ground between the parties that locating the guest accommodation on the upper area would require clearing and thinning of vegetation on the upper area due to bushfire requirements for guest accommodation. The current design avoids this requirement.

38 When asked whether the development would have any unacceptable environmental impacts (leaving aside the issue of characterisation and precedent) Ms Fuller confirmed that her only concern was the scale of the development on the upper area, particularly the two storey component comprising the bedrooms and study for the exclusive use of the manager. Ms Fuller accepted, however, that the topography of this site and its surrounds and the screening vegetation unaffected by the development meant that the structures on the upper bench would be visible only to those persons visiting the site. This issue of scale is considered further below. While some of the residents expressed concerns in their objections about environmental impacts (including from the proposals for sewage management, changes to water regimes, and human presence) Ms Fuller considered that all other potential issues of concern (such as vegetation removal, edge effects from structures and human habitation, the sewage management system, water and run-off management, visual, heritage, siltation, geotechnical stability) were either acceptable or could be made acceptable by conditions.

39 The inference that should be drawn from this evidence is that the proposed development is intended to and can be constructed and managed so as to be ecologically sustainable and without detrimental impact on the ecology of the locality, as required by the definition of ecotourism facility. This largely results from the fact that the site has a large, flat cleared expanse on the upper bench area that, by reason of topography and vegetation remaining unaffected by the development, cannot be viewed from any public vantage point.

40 The cleared area is a remnant of the previous use of the escarpment for logging and farming purposes. According to the Council’s heritage adviser the development would not impact on the heritage values of the escarpment or the former sawmill and there was value in retaining the cleared area as a clearing rather than permitting its revegetation. The heritage adviser considered the existence of the cleared area showed the history of the region and the uses made of the escarpment in the past. In consequence the heritage adviser saw some value in locating development on the cleared area so as to retain the clearing.

41 The fact that the development locates the cabins on the lower area and includes a manager’s residence does not take the development outside the definition of ecotourism facility. The walk up the driveway requires physical effort but is not impossible. The development includes a shuttle bus arrangement for less mobile or active guests and visitors. A small shuttle bus traversing an existing sealed driveway is not incompatible with the concept of an ecotourism facility. The cabins are but one part of the overall facility. While the facility may be more attractive to overnight guests if the cabins could be located on the upper bench area the separation is not unworkable. The development is also intended to operate as a day centre for visitors and has capacity to do so.

42 The manager’s residence is part of the ecotourism facility both physically and operationally. The manager’s residence has three bedrooms and a study but does not have exclusive bathroom, kitchen, dining or lounge facilities (although practical considerations indicate that a separate bathroom arrangement should be provided, a matter returned to below). The components of the development reserved for the manager (including the proposed separate bathroom) are not of a size or nature to justify the conclusion that the dominant purpose is as a home. The manager’s residence cannot function as a residence without the shared facilities. Subject to the requirements about the bathroom noted below, it would have no kitchen for exclusive use and the lounge/dining area doubles as the lecture theatre. The functions of the manager as described in the operational plan of management are all directed to and subserve the ecotourism facility.

43 For these reasons I am satisfied that the proposed development is an ecotourism facility which, as the definition permits, includes some guest accommodation and a manager’s residence.

Clause 14

44 Having regard to the approach to construction evident in decisions such as Egan v Hawkesbury City Council (1993) 79 LGERA 321 and Hawkesbury City Council v Sammut (2002) 119 LGERA 171, I raised with the parties a question about the operation of cl 14 of the WLEP 1990. Although the Council had not raised this issue and had recently granted consent to another development application including a manager’s residence that would have been prohibited on this approach to the WLEP 1990, the Council submitted that a manager’s residence was a form of dwelling house and thus subject to (and prohibited by) cl 14.

45 In Sammut Mason P (with whom Powell JA and Young CJ in Eq agreed) explained that planning instruments often define development purposes in a manner that overlaps so that a development might be for more than one purpose. The reasoning of the majority in Egan involved rejecting an approach to construction based on an assumption that an express reference to one matter must necessarily exclude another (represented by the maxim expressio unius est exclusio alterius). Hence, in Egan , the fact that the instrument expressly prohibited both extractive industries and industries in some zones did not mean that a reference to industries alone in the applicable zone excluded extractive industries. Extractive industries were a form of industry and thus captured by the reference to industries as a form of prohibited development.

46 Mason P in Sammut rejected a submission that Egan should be confined to its own facts. He observed (at [23]) that Egan :

…establishes a more general interpretative template for construing "industries" where shown as prohibited uses in the various land use tables of the instrument; and it rejects the application of expressio unius reasoning in this context.


47 Accordingly, the Court held in Sammut that rural industries as defined were a type of industry and thus prohibited in the relevant zone.

48 The present case is not about the standard definitions of industry and types of industry. In this case I am satisfied that the ordinary and natural meaning of the WLEP 1990 supports the applicants’ approach to this issue.

49 First, and as the applicants submitted, the essence of a dwelling house is its intended function as a separate domicile. A “residential building” involves “nothing more than use for human habitation” whereas a type of residential building involving a domicile carries with it the notion of a “significant degree of permanency of habitation or occupancy” ( North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537 – 538). A manager’s residence might or might not function as a domicile for any person. This suggests that a manager’s residence is not necessarily a type of dwelling house. In Egan and Sammut , by contrast, the definitions of extractive and rural industry ensured they were always a type of industry. Hence, cl 14(1) of the WLEP 1990 is not analogous to the provisions regulating industrial development considered in Egan and Sammut . Clause 14(1) relates to a specific type of residential building only (dwelling houses) rather than residential buildings generally (of which a dwelling house and a manager’s residence are a type).

50 Secondly, in this case both dwelling houses and ecotourism facilities are permissible with consent in the 7(b) zone. Dwelling houses are further regulated by cl 14. The question is not whether a reference to industries in the prohibited section of a zoning table is sufficient to encompass types of industries but whether a reference to dwelling houses in a special provision of the instrument encompasses a manager’s residence as referred to in another separately defined term and where, as noted, an essential aspect of a dwelling house (separate domicile) does not necessarily apply to a manager’s residence. There are indications in the WLEP 1990 to the contrary. For example, in the 6(a) zone ecotourism facilities are expressly permitted whereas dwelling houses are prohibited. In the 6(c) zone ecotourism facilities are not subject to the special advertising requirement that applies to dwelling houses before consent may be granted. In cl 14(2) there is a control on the erection of dwelling houses in zone No (1) (where ecotourism facilities are also permissible) that could never be satisfied by an ecotourism facility. The WLEP 1990 contemplates and regulates dwellings used in conjunction with certain other uses in a manner different from the reference to manager’s residence in the definition of ecotourism facilities. Examples are apparent in the 4(a) and 6(b) zone, as well as in cl 13(3).

51 Thirdly, the literal approach to the ordinary and natural meaning of provisions adopted in Egan and Sammut (in preference to speculation about the planning objectives that the instrument might be intended to achieve) works in the applicants’ favour. Clause 14(1), in terms, applies to the erection of dwelling houses and not, for example, residential buildings generally. The ordinary and natural meaning of the provision does not permit it to be read as if it referred to the erection of dwelling houses and ecotourism facilities insofar as those facilities might contain a manager’s residence.

52 Accordingly, I am satisfied that the possible concern I raised about the operation of cl 14(1) of the WLEP 1990 having regard to the approach to construction evident in Egan and Sammut cannot be sustained.

53 Moreover, on the facts of the present case, certain essential components of a separate domicile (kitchen and lounge) are part and parcel of the ecotourism facility. When considered in the context of the overall development as proposed (that is, the shared use of numerous facilities) the building on the upper bench area will not in fact be occupied, used, constructed or adapted as to be capable of being occupied or used as a separate domicile.

Development on upper bench area and precedent (issues 3 and 4)

54 The evidence discloses two aspects to these issues. The first aspect is whether there should be any development for the purpose of an ecotourism facility on the upper bench area; if not, any development of such a facility is potentially an inappropriate precedent. The second is whether this particular development should be located on the upper bench area; if not, this particular development is potentially an inappropriate precedent.

The strategic planning context

55 The first aspect depends on a proper evaluation of the Council’s strategic planning for the escarpment. The Council appeared to approach the strategic planning context as follows: - (i) the Commission of Inquiry recommended against any further development west of the existing development on Morrison Avenue, (ii) the amendment to SEPP 1 in 2002 ensured that land zoned 7(b) could not be developed for dwelling houses unless it satisfied the (large) area requirements in that clause, (iii) the 2005 strategic management plan identified the site as mainly core escarpment, (iv) the 2007 land use review strategy refined the planning objectives for the escarpment and divided the land zoned 7(b) into a proposed E2 and E3 zone, with the division reflecting the 140m contour, (v) development as proposed would not be permitted above the 140m contour under the draft WLEP 2009, (vi) the draft WLEP 2009 reflects the outcome of the Council working consistently towards implementing the Commission of Inquiry’s recommendations and the protection of the upper escarpment from development. Accordingly, the development on the upper bench area would undermine the long-held planning objectives for the escarpment.

56 I cannot reconcile this view of the Council’s planning policies with the actions the Council in fact took over the past 10 years.

57 The Commission of Inquiry report found the planning controls in the WLEP 1990 controlling development on the escarpment unsatisfactory. The report recommended a short-term solution of maintaining the WLEP 1990 planning controls but prohibiting further residential development west of Morrison Avenue (amongst other things) and a longer-term solution of the rezoning of all such land from 7(b) to 7(a) to recognise its status as core escarpment land. The report also recommended the preparation of an escarpment management plan to inform long-term planning. The Commission of Inquiry report did not refer to ecotourism development in its findings or recommendations.

58 The Council carried out an interim review of the WLEP 1990 commencing in 2004 and culminating in Amendment No 235 in 2006. This review over two years occurred after the amendment to SEPP 1 in 2002 and resulted in the remaking of most of the definitions and all of the zoning tables in the WLEP 1990. The review was thus comprehensive. Although carried out some five years after the release of the Commission of Inquiry’s report the review did not implement the long-term recommendation of the Commission of Inquiry to rezone all land zoned 7(b) west of Morrison Avenue to 7(a). Hence, the 7(b) zoning of most of the site (along with other land zoned 7(b)) was retained in the WLEP 1990.

59 While the interim review was being carried out, the Council also prepared the strategic management plan for the escarpment. The process for preparation of the strategic management plan included extensive consultation with the public and involvement of other government departments. The Council undoubtedly relied on the recommendations of the strategic management plan to inform the provisions of Amendment No 235. The strategic management plan encouraged the development of ecotourism facilities as part of the goal of providing public access to and use of the escarpment. It specifically contemplated locating ecotourism facilities in suitable locations on the escarpment, including in the areas identified as both core escarpment and biophysical support provided they were in previously disturbed areas. These recommendations were taken up in Amendment No 235 by the inclusion of ecotourism facilities as permissible development in the 7(b) but not the 7(a) zone. The Council made this strategic planning decision in circumstances where the zoning map shows relatively large areas of land west of Morrison Avenue zoned 7(b). Insofar as the site is concerned, virtually the whole of the southern end of the site (including most of the flat expanse known as the upper bench area) is zoned 7(b) and thus capable of accommodating development for an ecotourism facility on previously disturbed areas in accordance with the strategic management plan and the WLEP 1990 as amended by Amendment No 235.

60 In other words, the Council’s strategic planning decisions between 2004 and 2006, made with the benefit of extensive involvement of other government departments and public participation, specifically contemplated the development of ecotourism facilities within the core escarpment on land zoned 7(b) provided those facilities were located on previously disturbed areas. This strategy was seen as having benefits for increasing the community’s understanding of the value of the escarpment and by contributing to the economic base of the local government area.

61 The land use review strategy (adopted in 2007) and the draft WLEP 2009 contain different provisions for ecotourism facilities on the escarpment from those in the strategic management plan and the WLEP 1990. Insofar as the site is concerned, the lower areas adjacent to Morrison Avenue could be developed for an ecotourism facility but no part of the upper bench area could be so developed (proposed permissible development being limited to, relevantly, environmental facilities). In contrast to the extensive process of public consultation and exhibition associated with the strategic management plan and Amendment No 235 to the WLEP 1990, the land use review strategy and the draft WLEP 2009 have not yet been placed on public exhibition. Draft WLEP 2009 remains near the beginning of the steps required under Pt 3 of the EPA Act for the making of a new local environmental plan.

62 In this context, I do not accept that the provisions of the land use review strategy and the draft WLEP 2009 represent the culmination of a consistent planning strategy implemented by the Council since 1999 to ensure that the core areas of the escarpment remain free from development. To the contrary, between 2004 and 2006, the Council prepared and implemented changes to its planning instruments and policies, following extensive community consultation, for the specific purpose of encouraging a particular form of development on land within the escarpment zoned 7(b), being ecotourism facilities provided they were located on previously disturbed areas and otherwise satisfied the zone objectives of the 7(b) zone.

63 An issue that must be resolved is the weight to be given to the existing promulgated planning instrument (the WLEP 1990 as amended by Amendment No 235 and as supported by the strategic management plan) compared to the proposed planning instrument (the draft WLEP 2009 as supported by the land use review strategy). The location of the development on a cleared (that is, previously disturbed) area and Ms Fuller’s evidence that the development would have no unacceptable environmental impact (apart from her concern about the scale of development on the upper bench area, dealt with below) suggest that the development purpose is one which is consistent with (indeed, encouraged by) the strategic management plan and the WLEP 1990 as amended by Amendment No 235. The location of any development for this purpose on the upper bench area, however, would be prohibited by the draft WLEP 2009 if its provisions come into effect in their present form.

64 The Council (properly) acknowledged that the provisions of the draft WLEP 2009 are not certain or imminent. The Council submitted draft WLEP 2009 to the Department to obtain a certificate to permit public exhibition a few weeks before the hearing of this appeal (pursuant to a resolution on 24 June 2008). A certificate under s 65 has not yet issued. Accordingly, the provisions of the draft WLEP 2009 have not yet been subject to public scrutiny and the making and resolution of submissions. The same proposition applies to the land use review strategy adopted by the Council in August 2007. The difference this creates between the status of the draft WLEP 2009 compared to the existing provisions of the WLEP 1990 is obvious.

65 The embryonic stage of the draft WLEP 2009 and the lack of public exhibition of the land use review strategy do not support an approach that gives determinative weight to those documents. The objects of the EPA Act in s 5 (particularly encouraging the promotion and co-ordination of the orderly and economic use and development of land and providing opportunity for public involvement and participation in environmental planning and assessment) are furthered by giving effect to the provisions of the existing WLEP 1990 and strategic management plan. To do otherwise would be inconsistent with these fundamental objects. Pursuant to the WLEP 1990 and strategic management plan, the development purpose of ecotourism facility is both permissible and desirable on land zoned 7(b) provided that it satisfies the requirements of the definition (including the focus on ecological sustainability and lack of ecological impacts), the zone objectives and, at least in the core escarpment area, is limited to previously disturbed areas.

66 The first aspect of the precedent issue, when understood in this context, carries little weight. This conclusion depends on the present factual circumstances. The acceptability of the development of another ecotourism facility on another site would have to be assessed on its merits having regard to the circumstances of the planning regime at the time any such application is determined. Given that the planning regime established by the WLEP 1990 as amended by Amendment No 235 is proposed for alteration with the process under Pt 3 of the EPA Act to that end in its early stages, those circumstances cannot presently be predicted.

The particular development

67 The second aspect of these issues relates to the particular development. Residents objecting to the proposal raised numerous concerns about the environmental performance of the development. Other than in respect of one matter, however, Ms Fuller considered that the development would have no unacceptable environmental impacts. Ms Fuller specifically accepted that the development would have no unacceptable effects in terms of vegetation removal, edge effects from structures and human habitation, the sewage management system, water and run-off management, visual, heritage, siltation, or geotechnical stability issues. The Council (or, more specifically, its professional officers) considered that all of these matters were either effectively dealt with in the application or capable of being regulated by condition. The one issue of concern to Ms Fuller was the scale of development proposed on the upper bench area. She considered the scale excessive given the nature of the development purpose (with its focus on nature-based activities) and the activities proposed. In Ms Fuller’s opinion removing either the eastern wing or its second storey from the development on the upper bench area might ameliorate this concern.

68 Various factors of fundamental importance indicate that this concern about scale is of insufficient weight to justify refusal of this application.

69 First, the development on the upper bench area is confined to a previously disturbed area. This area is a large flat cleared (mowed) expanse. Apart from one tree near the driveway (which the evidence says is over-mature, in poor condition, and of low vigour) the development on the upper bench area does not require the removal of any vegetation. Given Ms Fuller’s evidence, moreover, there is no proper basis on which to infer that the development involves any real possibility of longer-term harm to or degradation of the vegetation surrounding the cleared area.

70 Secondly, the development on the upper bench area will preserve the clearing associated with the historical uses made of the escarpment. The Council’s heritage adviser considered this potentially beneficial rather than permitting the cleared area to become lost through revegetation.

71 Thirdly, the site is large and contains significant vegetation, albeit heavily weed infested in part. It provides a sufficient area and range of landscape and natural attributes (the vegetation, creek lines, and cliff faces) to function as an ecotourism facility as defined and to contribute to the community’s understanding of the importance of the escarpment. The ecological attributes of the site will benefit from ongoing management to remove invasive weed species and restore native vegetation. A specific objective of the proposed development is to provide an ecotourism facility focusing on, amongst other things, bushland regeneration and restoration. While as Mrs Wright said, such environmentally valuable activities do not necessitate the ecotourism facility on the upper bench, the facility will encourage those bushland regeneration and restoration activities in a context where the Council’s existing planning instrument and policy adopted after extensive public consultation specifically contemplate this type of development in this location.

72 Fourthly, it is common ground that the development will not be visible from any public vantage point (and both parties had the benefit of expert advice from consultants experienced in visual assessment in order to reach this agreed position).

73 Fifthly, and in consequence, Ms Fuller acknowledged that the concern about the scale of the development on the upper bench area would involve the perceptions of visitors to the site as the development will not be visible from public vantage points. Mr Shiels thought scale a difficult issue to analyse in the context of this site (of over 17 hectares) and the upper bench area (of 2.8 hectares) and the lack of visibility other than from within the site. He considered that removing the eastern wing or its second storey would have no real benefits.

74 The east wing of the building on the upper bench area is linked to the west wing with a breezeway. The wings and the breezeway are of different materials and detail. The separation of the two wings and different architectural treatment breaks up the mass of the building and reduces its bulk and scale. In context the building is not out of scale, particularly when viewed against the backdrop of the escarpment.

75 Accordingly, I am not satisfied on the evidence that the development will operate as an unacceptable or inappropriate precedent given the size of the site, its lack of visibility from any public vantage point, the size of the existing clearing and associated lack of any need for vegetation removal on the upper bench to accommodate the development, and the Council’s acceptance that the development has no unacceptable environmental impacts other than a perception of scale from within the site.
Conclusion

76 For the reasons given above, the evidence has not disclosed any sufficient reason to refuse the grant of consent to the development, subject to conditions.

77 I indicated to the parties that the draft conditions of development consent required further work. I particularly have in mind the following:

Before the application is determined


(1) The inconsistency between the plans. For example, plans 01 and 02 show the east and west wings as a residence with the tourist facilities limited to the ancillary structures. This is inconsistent with the balance of the development application. The plans need to be consistent. These inconsistencies should be rectified before any grant of consent.

(2) The need to be satisfied that the development as proposed meets or is capable of meeting (without material alteration) all Building Code of Australia disabled access and bathroom requirements. Although not raised as an issue by the Council, disabled access and adequate toilet facilities for such a development are fundamental matters about which a consent authority should be satisfied before determining an application. The applicants need to provide sufficient information in this regard (by report or appropriate certification of the plans) before any grant of consent.

(3) The impracticality of the shared bathroom arrangement in the eastern wing of the building on the upper bench area. The plans should incorporate a separate bathroom arrangement for guests somewhere within the existing structure that meets the requirements of the Building Code of Australia for a tourism facility involving the numbers of visitors proposed. The sewage disposal field needs to be able to accommodate the required number of toilets (without any increase in size given proximity to the creek and vegetation). The applicants need to provide sufficient information in this regard (by report or appropriate certification of the plans) before any grant of consent.
As part of any consent conditions
(4) The need for a more detailed vegetation management plan, sewage and stormwater management plans, and services design. The vegetation management plan needs to include (as a minimum) specific restoration objectives, work programs and planting schedules to achieve those objectives, regular reporting requirements, properly detailed plans showing work stages, measurable and quantifiable goals over time, continuing management for the life of the development, and the need for all works to be carried out under the supervision of people holding relevant qualifications in bushland management. This plan must take into account the sewage management proposal and the design of all services. With respect to the sewage, stormwater, and services design it is important that the conditions require submission and ongoing compliance with specific location and performance objectives for all three aspects of the development through appropriate management plans. The conditions need to ensure that the details with respect to all of these matters accord with the current proposal and the evidence about the proposal (namely, that other than in respect of one tree there is no requirement for vegetation removal on the eastern slope or upper bench area and the development, including sewage system, pool, spa and the like, will not adversely impact on the long-term health and retention of bushland or the creek system). The Council accepted that all of these matters were capable of regulation by condition and there is insufficient evidence to suggest to the contrary. Nevertheless, these matters are of such importance to the development functioning as proposed that the required plans and details should be submitted to and approved by the Council before any application may be made for a construction certificate or development commenced. Deferred commencement conditions might be the most appropriate method to achieve this end.

(5) A condition requiring a construction management plan dealing with, amongst other things, truck access and protection of vegetation during construction. This too might form part of a deferred commencement condition.

(6) A condition requiring permanent retention of (and, if necessary, replanting to achieve) the vegetative screen on the eastern slope between the upper bench area and Morrison Avenue.

(7) The fact that, insofar as possible, any consent as granted should constitute a stand-alone document. References to numerous existing documents containing vague and potentially inconsistent statements about how the development should operate are not a substitute for clearly expressed conditions mandating precisely what must and must not be done. The draft conditions as submitted do not satisfy this basic requirement.
78 Directions are required to facilitate the preparation of the required plans and information, and suitable draft conditions, before the application may be determined and orders made. The exhibits may be returned other than exhibit A.

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