Wygiren v Kiama Municipal Council - [2008] NSWLEC 1233

Land and Environment Court

of New South Wales

CITATION: Wygiren v Kiama Municipal Council and Anor [2008] NSWLEC 1233

PARTIES:
APPLICANT
Wygiren Pty Limited
FIRST RESPONDENT
Kiama Municipal Council
SECOND RESPONDENT
Shoalhaven City Council

FILE NUMBER(S): 11026 of 2007

CORAM: Brown C - Tuor C

KEY ISSUES: Development Application :- construction of a caravan park - loss of agricultural land - the impact on the landscape quality of the rural area - issues associated with providing a housing development in an area not specifically designated for such a development - social impacts - impacts on the existing road network

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996
State Environmental Planning Policy No 21
Illawarra Regional Environmental Plan No 1
State Environmental Planning Policy (Seniors Living) 2004

CASES CITED: Hub Action Group Incorporated v Minister for Planning and Orange Council [2008] NSWLEC 116
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 27,28/03/08, 31/03/08-04/04/08

DATE OF JUDGMENT:
18 June 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr C McEwen SC with Mr M Staunton, barrister
SOLICITORS
Wilshire Webb Staunton Beattie
FIRST RESPONDENT
Mr I Hemmings, barrister
SOLICITORS
Russell McLelland Brown with Kearns Garside
SECOND RESPONDENT
Mr M Fraser, barrister
SOLICITORS
Morton & Harris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Tuor C

18 June 2008

11026 of 2007 Wygiren Pty Limited v Kiama Municipal Council (First Respondent) and Shoalhaven City Council (Second Respondent)
JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by Kiama Municipal Council of DA10.2007.224 for the construction of a caravan park at Toolijooa Road, Toolijooa (the site). On 7 March 2008 Shoalhaven City Council were joined as a party pursuant to s 39A of the Land and Environment Court Act 1979.

2 The issues raised by Kiama Municipal Council relate to the loss of agricultural land, the impact of the proposed development on the landscape quality of the rural area, the planning issues associated with providing a housing development in an area not specifically designated for such a development, social impacts and the impacts on the existing road network.

3 The issues raised by Shoalhaven City Council were limited to the impacts on the existing road network and the impact on existing services and facilities in the Shoalhaven City Council area.

4 The parties agreed that the Court should consider the merits of the proposed development as an initial step and in the event that it was found that consent should be granted the parties be given a further opportunity to address the Court on appropriate conditions.

The site

5 The site consists of Lot 808 in DP 1006600 and Lot 4 in DP 626708. It is irregular in shape and has a combined area of 101.07 ha. Toolijooa Road forms part of the northern boundary of the site and also bisects Lot 808 into two areas. The western boundary of Lot 4 is the boundary between Kiama Municipal Council and Shoalhaven City Council. The southern boundary of the site is the South Coast Railway Line. The site is located generally equidistant between Berry and Gerringong.

6 The landform in the area varies between undulating hills and slopes running generally parallel with the coast to flatter lands in the east extending towards the South Coast Railway Line. The site could be generally described as having higher ridge land in the west around a small valley with a generally easterly aspect. The site is generally free of vegetation with the exception of the higher parts of Lot 4 known as Harley Hill and scattered clumps of vegetation along the South Coast Railway Line and adjoining existing dwellings. A number of drainage channels or depressions traverse the site from the north to the flatter areas of the site near the South Coast Railway Line.

7 Improvements on the site consist of a dairy and some ancillary structures on Lot 808 and a homestead known as "Wyoming" on Lot 4. The majority of the site has been used for grazing and dairy cattle production. Three dwellings have been subdivided from the site through the concessional lot provisions available in the Kiama local government area. A number of other dwellings are located near the site. Some appear to be created through the concessional lot provisions while others are located on larger holdings. The area surrounding the site is consistent with the generally open rural character of the site (see Attachment 1).

The proposal

8 The Statement of Environmental Effects provides details of the proposal although a number of amendments were made during the hearing. The proposal, as amended, provides for a caravan park with 1040 long-term dwelling sites in different configurations and ancillary facilities and services. The target group for occupants is 50 to 55-year-old retirees and the composition of the facilities has been selected to respond to the social needs of this group. The Statement of Environmental Effects describes the objectives of the proposal as:

…providing a planned and sustainable community containing long-term dwelling sites in an attractive setting. The proposal is to be supported by a range of ancillary accommodation, services and community facilities which will include medical services, retail and recreational facilities as well as elements such as community halls. Proposed services will also include a community bus service linking to Gerringong and beyond.

Each dwelling will be provided with essential services and residents will pay a fee for its rental. Occupants will own and be responsible for their dwellings once they are installed on dwelling sites. Park management will be responsible for the maintenance of the communal facilities, open space, services and systems provided in the Village.

9 The dwelling sites are in the order of 150 sq m to 300 sq m. depending on the site conditions. It is proposed that the manufacture dwellings will be located on each of the sites by future occupants. The dwellings are to be purchased through the owner of the proposed development from a limited range. The proposed development provides few details of the dwellings apart from two generic styles based on the topographic features of each site. On flatter lands, on-site car parking will be achieved by locating the garages and carports adjacent to the dwelling and often integrated with the design. On the sloping parts of the site where the dwelling is located on the up slope, it is intended that the car parking will be accommodated underneath the dwelling thereby allowing the dwelling sites to be narrower. On land adjoining "green" areas or riparian corridors, dwelling sites are not as deep given the amenity of the site is enhanced by the outlook onto the adjoining open space areas. On land proposed for semi-detached dwellings (that is, those sites closer to the Village Centre) the sites will be narrower.

10 The main components of the Village Centre are:

a central community building,
ancillary retail and medical facilities, including a small convenience supermarket, four shops, a medical centre with the reception area and six consulting rooms and communal facilities,
an indoor swimming pool/spa and gymnasium,
a bowling green and parking greens with associated seating and barbecue facilities.

11 The development will be undertaken in stages as detailed in the documentation provided as part of the development application. The initial development will comprise Stages A and B. These stages are located on the area on the western side of Toolijooa Road and comprise 208 dwelling sites. Community Building B is to be provided for these stages. The majority of the community facilities are to be provided at Stages C/D.

12 The primary entry and exit will be via a new roundabout on Toolijooa Road that will provide access to the caravan park sites on either side of Toolijooa Road. The internal roads vary in width from 7 m closer to the roundabout and then generally a 6 m carriageway in a 8.5 m wide road reserve. Some parts of the site have a one-way traffic flow in a 4 m wide carriageway in a 6 m wide road reserve. Car parking is provided at the rate of one space per dwelling. A total of 230 visitor car parking spaces also provided together with areas for the parking of other recreational vehicles such as boats, caravans and smaller motor homes (see Attachment 2).

13 Initially, water was to be captured on site and treated for use by the proposed residents however reticulated water is now to be provided via a 6 km pipeline from a Sydney Water main. The applicant proposes that wastewater will be collected and treated on-site. The treated wastewater will then be spray irrigated on designated areas within the site. The areas are located on the flatter eastern areas of the site and also perform the additional function of recreational facilities for the residents.

14 The site is to be landscaped in accordance with a landscape concept plan based on the staging of the development. Setbacks and buffer treatments are proposed to provide amenity to Toolijooa Road, adjoining properties, side boundaries, the South Coast Railway Line, riparian zones and proposed irrigation areas. Embellishment of existing vegetation is also proposed.

15 The site is subject to flooding and the 4.5 AHD contour has been designated as the appropriate flood line, excluding a 300 mm free board for the required minimum floor level. A number of buildings are located below the 4.5 AHD contour however a further flood study is being undertaken that may reduce the flood line. At present, no buildings can be approved below the 4.5 AHD contour although the applicant was of the view that the further flood studies would confirm that the 4.5 AHD contour was overly conservative. The evidence in the appeal assumed that there would be 1040 sites available.

Relevant planning controls

16 The site is within Zone No 1(a) Rural “A” under Kiama Local Environmental Plan 1996 (LEP 1996). The use is categorised as a caravan park and is a permissible use within this zone (see Wygiren Pty Limited v Kiama Municipal Council [2008] NSWLEC 56). Clause 4 provides aims and objectives for LEP 1996. Clause 6(1) sets out definitions, including:

caravan park

means land used for the accommodation of caravans or other movable dwellings within the meaning of the Local Government Act 1993

17 Clause 9(3) provides that the consent authority shall not grant consent unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone. The zone objectives are:

(a) to provide suitable land for agricultural use,

(b) to protect the agricultural potential of rural land,

(c) to prevent the fragmentation of rural land of prime crop and pasture potential,

(d) to enable uses that are compatible with the rural use of the land,

(e) to protect the landscape quality of the rural area,

(f) to cater for small domestically-based enterprises that do not adversely affect the environment or the amenity of the neighbourhood and its residents, and

(g) to ensure that development and land management practices do not have an adverse effect on water catchments, water quality, land surface conditions and important ecosystems such as streams, estuaries and wetlands

18 Clause 12 provides that:

1) The Council shall not grant consent to development on land within Zone No 1 (a) (other than the subdivision of land) unless it has taken into account the effect that the proposed development will have on the agricultural viability of that land and land in the vicinity of that land.

(2) The Council shall not grant consent to development on land within Zone No 1 (a) unless it has considered:

(a) the effect of the proposed development on agricultural and other land uses undertaken on adjacent and adjoining holdings and other holdings in the vicinity, and

(b) the quality of the land and the potential agricultural productivity of the land, and

(c) the likely impact of the proposed development on the landscape, vegetation, soil resources and stability and water resources (including the quality of water courses, ground water storage and riparian rights), and the cumulative impact of the development on surface and ground water quality and quantity and on the physical and biological functions of watercourses and riparian corridors, and

(d) the effect of the proposed development on the structure and nature of agricultural industries in the area, and

(e) the traffic generating effects of the development on access roads, and

(f) the cumulative effect of similar proposals if consent is granted, and

(g) the likelihood of the land remaining available for agriculture.

19 State Environmental Planning Policy No 21 – Caravan Parks (SEPP 21) applies. Clause 8(1) provides that a caravan park may only be carried out with development consent. Clause 10 provides that a consent authority may grant a development consent required by SEPP 21 only after it has considered a number of matters contained within the clause. These matters are:

(a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

(b) whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence,

(c) whether there is adequate low-cost housing, or land available for low-cost housing, in that locality,

(d) whether necessary community facilities and services are available within the caravan park to which the development application relates or in the locality (or both), and whether those facilities and services are reasonably accessible to the occupants of the caravan park,

(e) any relevant guidelines issued by the Director, and

(f) the provisions of the

20 Illawarra Regional Environmental Plan No 1 (REP 1) is relevant. Clause 3 provides aims, objectives etc. for REP 1 and clause 11 provides objectives for rural lands.

21 The Illawarra Regional Strategy (the Strategy) is relevant as it seeks to guide sustainable growth and economic development within the Illawarra over the next 25 years. Relevantly, the Strategy provides direction on urban design and affordability and rural landscape and rural communities.

The evidence

22 The applicant provided expert evidence from:

Mr Graham Prattley on town planning and regional planning issues,
Mr Andrew Norris on flooding, stormwater and wastewater issues,
Ms D Eastment on landscape issues,
Mr Graham Pindar on traffic issues,
Ms Margot Black on social and economic issues,
Mr Brian Haratsis on social and economic issues,
Mr Nick Truelove on agricultural issues, and
Mr Bob Browne on caravan park management.

23 Kiama Municipal Council provided expert evidence from:

Mr Jeff Williams on town planning issues,
Mr Neil McGaffen on regional planning issues,
Mr Paul Nichols on flooding and stormwater issues,
Mr Chris Jewell on wastewater issues,
Mr Anton Reisch on traffic issues,
Mr Chris Millet on RTA traffic issues,
Dr Judy Stubbs on social and economic issues, and
Ms Wendy Goodburn on agricultural issues.

24 Shoalhaven City Council provided expert evidence from:

Dr Neil Southorn on social and economic issues,
Mr Scott Wells on traffic issues, and
Mr Chris Millet on RTA traffic issues,

25 The following residents provided evidence at the hearing opposing the proposed development:

Mr I Elliot of 250 Toolijooa Road,
Mr M and Ms J Lambert of 330 Toolijooa Road,
Mr S and Ms F Torr of 245A Toolijooa Road,
Mr R Richmond of 245B Toolijooa Road,
Mr K Sekulic of “Athelstane” Toolijooa.

26 The properties of Mr Elliot, Mr and Ms Lambert, Mr and Ms Torr and Mr Richmond were inspected on the site view.

27 Mrs Joanna Gash, Federal Member for Gilmore provided evidence at the hearing opposing the proposed development.

28 The following resident provided evidence at the hearing supporting the proposed development:

Mrs Margaret Hislop of Jupiter Street, Gerringong.

29 The report on the development application to Kiama Municipal Council on 18 March 2008 indicated that during the 28 day advertising period a total of 393 submissions were received. Of these submissions, 388 opposed the development application and five submissions supported the development application. The Court was also provided with copies of the submissions received during the advertising period. The relevant matters raised in opposition to the proposal are:

loss of prime agricultural land,
impact and suitability of the proposed on-site sewerage management system,
negative impact on the visual amenity of the area,
the isolation of the site and unsuitability for the development,
negative impact on tourism by altering the area to urban from rural in character,
traffic impacts and the inadequate state of Toolijooa Road,
non-compliance with the planning laws and strategies for the area, and
an undesirable change in the character of land from rural to urban.

30 The relevant matters raised in support of the application are:

the provision of affordable low-cost housing,
agricultural viability in the area is declining,
the proposal will provide a lifestyle choice, particularly for those downsizing their accomodation,
similar developments have already been carried out by the council,
the site may be serviced by a railway station in the future,
other development in the area has created a greater visual impact than would be expected from this application, and
there is unspoken support for the development within the area.

Impact on agricultural land

The assessment framework

31 The planning controls that apply to the site provide a range of considerations for agricultural land. Clause 9(3) of LEP 1996 imposes a barrier to the granting of consent unless the proposed development is consistent with the relevant objectives of the zone. In terms of agricultural land, the relevant objectives are:

(b) to protect the agricultural potential of rural land,

(c) to prevent the fragmentation of rural land of prime crop and pasture potential,

32 A finding of inconsistency with either of the two relevant objectives must result in the development application being refused and the appeal dismissed.

33 Clause 12(1) also imposes a barrier to the granting of consent unless the Court has taken into account the effect that the proposed development will have on the agricultural viability of that land and land in the vicinity of that land. Clause 12(2) provides further specific considerations, particularly ss (a),(b),(d) and (g).

34 Clause 9 of REP 1 provides that a consent authority (albeit in the preparation of a draft local environmental plan) shall give effect, in so far as is possible to the objectives, policies and principles specified in Parts 2-16. Part 2 provides provisions relating to rural lands with cl 11 providing the objectives. Relevantly, objective (a) states:

a) to retain the productive capacity of prime crop and pasture lands.

35 Chapter 10 of the Strategy addresses Rural landscape and rural communities. The Outcomes are stated as:

The Regional Strategy will promote the economic, food production and community values of existing agricultural land and protect them from inappropriate urban expansion (other than that identified under this Strategy or in accordance with the Sustainability Criteria), rural residential development and further fragmentation.

The agricultural classification of the site

36 The site is identified as being prime crop and pasture land in REP1. Prime crop and pasture land refers to land in Classes 1 to 3 under the 5 class classification system adopted by the Department of Primary Industries. Class 1 land being the most valuable and Class 5 being the least valuable. Relevantly, Class 2 land is defined, in part, as "arable land suitable for regular cultivation for crops but not suited for continuous cultivation". Class 3 land is defined, in part, as "grazing land or land well suited to pasture improvement. The overall production level is moderate because of edaphic or environmental constraints". Class 4 land is defined, in part, as "land suitable for grazing but not for cultivation".

37 Mr Truelove was of the view that the site was classified as generally Class 3 with the more steep areas around Harley Hill classified as Class 4 land. Potentially, some of the flatter areas towards the south coast railway line could be classified as Class 2 land. Ms Goodburn relies on the mapping originally undertaken by the Department of Agriculture to conclude that the site is appropriately classified as Class 3 land.

The evidence

38 Ms Goodburn and Mr Truelove differ on the viability of the current dairying operation on the site and the loss of the land for agricultural use.

39 Ms Goodburn states that the viability of an existing agricultural enterprise is useful as a guide but has limitations with regard to assessing the lands potential. Viability does not just relate to the number of cows or quantity of milk but also factors such as milk yield per cow, the quality of the milk and the price received. Based on her assessment, Ms Goodburn states that the dairy is currently achieving an economic return and in the longer term, with market variability, the farm will benefit from increasing its herd size and potentially an increased economic return.

40 Ms Goodburn notes that the potential of the land for agriculture may either be greater or less than its current use, depending on the market and how the land is managed. She notes that one of the key reasons for higher agricultural land prices is the conversion of agricultural land to urban uses, such as that proposed in this application. It is accepted that it would be unlikely that additional land would be purchased to expand the current dairying operation however the lease of additional land to maintain and enhance the current dairying operation is a real option.

41 Ms Goodburn states that the proposed development will result in fragmentation of rural land. An approval would result in the loss of 101 ha of prime crop and pasture land. The development is also likely to act as a precedent for other similar developments and on a broader scale, increasingly fragment the agricultural landscape by reducing the limited resource remaining on the coast. In her opinion, it is important to retain and protect the limited land zoned for agriculture in the area for agricultural purposes because it is a particularly high quality resource. The high quality of the resource is based on the high rainfall, soil quality and the proximity to the Sydney market of the site and general area.

42 Mr Peter Cullen is the dairy farmer who currently leases Lot 808 (68 ha) and 20 ha of Mr Elliot’s adjoining property. He strongly maintains that the current dairying operation is viable. Mr Cullen has been a tenant farmer for 32 years in the Gerringong area and presently operates with 82 milking cows that will likely produce around 800,000 litres of milk this year. When purchased by Bega Milk Co-op at $0.52 per litre (excluding a bonus of $0.03 per litre) the milk sales will produce a gross income of $416,000. Mr Cullen stated that he intended to increase the milk tank storage on site and this will allow him to increase the number of milking cows. He anticipates that the increased number of milking cows will generate over 1,000,000 litres of milk per year. Additionally, Mr Cullen states that because of the quality of the soil, a large quantity of silage has also been produced that will help increase milk production and provide a large food stockpile for his cows.

43 Mr Truelove states that the farm is well below the national average of 225 milking cows and regional average of 120 to 180 milking cows. He expresses concern that although the herd size could be increased to 190 cows through the lease of the additional 20 ha of adjoining land, it is not a feasible proposition as Lot 808 is too steep in parts and the stocking rate of 2.3 cows per hectare is too high. To successfully run this stocking rate, additional food will be required above that produced on site. This will lead to higher costs and reduced profitability. While changes in market prices and other factors could make agriculturally unviable land viable again, Mr Truelove notes there are long term trends that are irreversible and militate against this occurring, particularly the price of peri-urban land that rises as a result of its proximity to urban areas, rather than its value to agricultural production. In his view, the site falls within this category.

44 Mr Truelove is of the view that as the development does not involve subdivision there will be no fragmentation of prime crop and pasture land. The development will use about 50 ha of the 70 ha of prime crop and pasture land on the two lots. The remaining land will continue to be used for agriculture, most likely the grazing of beef cattle. When considered on a broader scale, the loss of the prime crop and pasture land would result in a loss of only 0.05% of the available agricultural holdings in the Kiama local government area.

Findings

45 Clause 9(3) of LEP 1996 imposes two preconditions to the Court in exercising the power to grant consent to the proposed development. The requirements of REP 1 and the Strategy generally support the proposition of protecting agricultural land however do not impose the same level of authority as cl 9(3). The first precondition requires consideration of whether the proposed development protects the agricultural potential of rural land and the second precondition requires consideration of whether the proposed development prevents the fragmentation of rural land of prime crop and pasture potential. A negative finding for either precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

The agricultural classification of the land

46 We are not satisfied that the classification of the land as Class 3 (Goodburn) or a combination of Class 2, 3 and 4 (Truelove) is a determinative matter in assessing the matters raised by cl 9(3). There was agreement that the majority of the site was Class 3 land and this is sufficient to conclude that it is suitable for grazing or pasture improvement. The concerns expressed by Mr Truelove over the agricultural potential of the steeper land was not seen by Mr Cullen as a valid concern. We are comfortable in giving greater weight to the evidence of Mr Cullen who has practical knowledge of the use of the site for dairying rather than the largely theoretical approach that is more appropriately used in the absence of any specific evidence on agricultural potential.

The farm viability

47 The viability of Mr Cullen’s operation was tested in some detail by Mr Truelove who modelled different scenarios for a range of variables based on Mr Cullen’s Feed Plan and Budget for 2007-2008. The variables included both income and expenditure items. While initially concluding that the farm was unviable, a recalculation of his assessment by correctly increasing the number of lactation days for the cows from 305 to 365, the use of the appropriate milk price at $0.5166, an adjustment of $29,000 for double counting hay and a change in $22,000 for fertiliser costs resulted in the current production profit (in addition to $60,000 labour cost) of $38,467.59 for 82 cows and $63,273.46 for 117 cows.

48 Based on the recalculation by Mr Truelove we did not understand there to be any disagreement between Mr Truelove and Ms Goodburn on the viability of Mr Cullen's operation. In coming to this conclusion, we accept that circumstances may change in the future however at this point there is no evidence to suggest that Mr Cullen's operation is not viable.

49 We are also mindful that even if there was finding that Mr Cullen's operation was not viable, it does not necessarily support a proposition that the land does not have agricultural potential and may be used for urban development. We agree with the general thrust of Ms Goodburn’s evidence that it is necessary to take a wider view on the loss of agricultural land. The fact that an individual farm may not be viable does not necessarily mean that the land could not be used for an agricultural use in conjunction with another property in much the same way as Mr Cullen leases the 20 ha of land from Mr Elliot to embellish the agricultural use of Lot 808. There is also some merit in the argument of Ms Goodburn that the site forms part of an important agricultural region that has qualities including good soils, high rainfall and proximity to the Sydney market, that allow it to survive and prosper in times when other regions suffer.

The potential of rural land

50 There was no disagreement that the site has agricultural potential. The thorough examination of Mr Cullen’s existing operation clearly supports such a conclusion. Ms Goodburn’s evidence was that the site was appropriately used for agricultural purposes, if not as an individual site but in conjunction with another agricultural property. Mr Truelove was specifically asked under cross-examination whether the site had potential for rural activities and he replied in the affirmative.

51 For the reasons in the preceding paragraphs, we find that the proposed development, pursuant to cl 9(3) of LEP 1996 is inconsistent with the zone objective (b), in that it does not protect the agricultural potential of rural land.

52 The consequence being that the appeal must be dismissed and the development application refused. For completeness we will briefly deal with the other issues.

Fragmentation

53 There was disagreement between Mr Truelove and Ms Goodburn on whether the proposed development was consistent with objective (c), that is, whether the proposed development fragments rural land of prime crop and pasture potential. We do not accept the evidence of Mr Truelove that because there is no subdivision of the land there can be no fragmentation. In our view, fragmentation should not be given such a narrow meaning. Such a proposition ignores a situation where the loss of agricultural land may break the continuity or economies of scale for a viable agricultural land use and thereby negatively affect the ongoing agricultural use of land. The affect of fragmentation on agricultural land is a matter of fact and degree.

54 In this case, we are satisfied that the proposed development would fragment rural land of prime crop and pasture potential because it would remove a significant area of productive Class 3 agricultural land from the limited resources that are currently available and potentially deny the opportunity for the creation of a viable agricultural operation in combination with other properties. The site adjoins other agricultural land and development for urban purposes would prevent not only the site from being amalgamated but also its use for agricultural purposes in conjunction with other sites. The proposal would also result in impacts associated with a rural/urban interface.

Sustainable development

55 We also adopt, as relevant, the comments made in Hub Action Group Incorporated v Minister for Planning and Orange Council [2008] NSWLEC 116 (at pars 68 to 72) that state:

68 Moreover, apart from lacking power in these circumstances, I am of the view that to approve a development which is likely to have these adverse effects on the long term use, for sustained agricultural production, of prime crop and pasture land would not be consistent with the principles of ecologically sustainable development.

69 The principle of good governance is essential to sustainable development. It requires the enactment and enforcement of clear and effective laws that support sustainable development. The provisions of the LEP relating to the 1(a) zone, including cl 10(1), are part of a law supporting sustainable development, by protecting, enhancing and conserving the valuable resource of agricultural land and in particular prime crop and pasture land in a manner which ensures its use for sustained agricultural production. The upholding and enforcement of that law promotes good governance

70 The principle of sustainable use of natural resources involves the exploitation of natural resources in a way which is sustainable in the long-term and which reduces environmental harm. It involves consideration of the effects of use on all natural resources, certainly the effect of the use on the resources the intended subject of the activity but also the effect that the use of those resources might have on the sustainable use of other resources.

71 In this case, whilst adoption of a waste minimisation strategy and operation of a waste disposal facility with a resource recovery facility is beneficial in promoting sustainability, by such means as encouraging more efficient use of resources, reducing unnecessary resource consumption, improving resource recovery and reducing waste generation, by siting the waste disposal facility on prime crop and pasture land, the proposed development impedes achieving sustainability by adversely affecting the long-term use, for sustained agricultural production, of that land.

72 The principle of inter-generational equity involves the right of the present generation to use and enjoy the resources of the earth but without compromising the ability of future generations to do likewise. The present generation needs to ensure that the health, diversity and productivity of the environment are maintained and enhanced for the benefit of future generations. This obligation of inter-generational equity would be breached by the carrying out of development which has an adverse effect on the long-term use, for sustainable agricultural production, of prime crop and pasture land. Such development compromises future generations’ ability to use and enjoy to the same degree as the present generation the prime crop and agricultural land.

56 Consequently, and pursuant to cl 9(3) of LEP 1996, we find that the proposed development is inconsistent with the zone objective (c).

Traffic

The issues

57 The site allows vehicles to travel in a northerly direction and a southerly direction along Toolijooa Road. Access to the north is provided along Toolijooa Road to the Princes Highway. It was agreed between the experts that Toolijooa Road to the Princes Highway would need to be upgraded as well as the upgrading of the intersection at the Princes Highway. The applicant accepted the extent of the upgrading of Toolijooa Road and the intersection with the Princes Highway.

58 The impact on local roads brought about by the additional vehicles generated by the proposed development and travelling in a southerly direction via a number of local roads to the Princes Highway at Berry was in dispute between the experts. The dispute centred on the need or extent of upgrading of local roads, intersections and other road infrastructure. The particular areas of dispute are:

the traffic generation rates for the proposed development,
the distribution of trips on the road network, and
whether the additional traffic generates the need for upgrading of local roads, intersections and other road infrastructure.

The evidence - traffic generation rates

59 Mr Pindar adopts trip rates of 0.18 vehicles/hour/site (v/h/s) for the morning peak period and 0.15 v/h/s for the afternoon peak period. The rates were based on caravan parks with permanent sites at two sites at Chain Valley Bay and sites at Erina, Lake Munmorah and Green Point. In formulating the traffic generation rates, Mr Pindar relies on the proposal providing 100% long-term dwelling sites with 80% of the residents being over 55 years of age. The availability of ancillary services and facilities, such as the communal facilities, medical services, retail and recreational facilities and the community hall on-site were also factors taken into account by Mr Pindar.

60 Mr Reisch notes that no traffic generation rates are provided in the Roads and Traffic Authority (the RTA) document Guide to Traffic Generating Developments (the RTA Guide) and in the absence of specific rates for the proposed development, the RTA Guide refers to the US Institute of Transportation Engineers Trip Generation Manual (the ITE Manual). For a mobile home park, the ITE Manual provides for a morning peak trip generation of 0.44 v/h/s and an afternoon peak trip generation of 0.59 v/h/s. Mr Reisch questions the ability to rely on residents being over 55 years of age when there is no ability to legally require this to occur. For this reason and considering the rates in the ITE Manual, Mr Reisch adopts the higher rate in the survey by Mr Pindar (at Erina) as the minimum rate of 0.28 v/h/s in the morning peak and 0.20 v/h/s in the afternoon peak.

61 Mr Wells, like Mr Reisch questions the ability to rely on the operation of the proposed development as a development that will principally accommodate people over 55 years of age when there is no legal means to require this to occur. The consequence being that there is the potential for more mobile occupants to use the proposed development. Mr Wells questions why the caravan park used at Erina is discounted by Mr Pindar because it has some 20% or more occupants that are under the age of 55 particularly when the development was generating some 47 - 75% more traffic in the peak period and 40% higher than the average rate compared to the other examples relied upon by Mr Pindar.

62 Mr Wells also relies on caravan park surveys undertaken by Shoalhaven City Council in the late 1990s and between November 2007 and February 2008 that generally indicate traffic generation rates approximately twice the levels adopted by Mr Pindar. In balancing the available data, Mr Wells adopts the traffic generation rates of 0.3 v/h/s in the morning peak and 0.4 v/h/s in the afternoon peak.

63 Mr Millet states that the rates adopted by Mr Pindar are inappropriate even if it could be guaranteed that the proposed development was for over 55-year-olds. He states that the traffic generation rates in the RTA Guide for Housing for the Aged and Disabled Persons provides for 0.1-0.2 v/h/s in the evening peak however actual traffic surveys provided to the RTA for a number of aged housing developments have a significantly higher number of trips per hour. These range from 0.2 - 0.41 v/h/s in the morning peak and 0.3 – 0.45 v/h/s in the afternoon peak.

Findings - traffic generation rates

64 There are a number of different assumptions used by the traffic experts in reaching their traffic generation rates. These assumptions relate to the likely future occupants of the development and their conclusions would be different depending on the assumptions made. Firstly, we do not accept Mr Pindar's strong reliance on the fact that the proposed development will consist of 80% of residents being over 55 years of age. This figure was in the general area suggested by the social experts however the inability to accurately provide a breakdown of the likely future occupants of the development was a consistent problem in addressing many of the issues in the proceedings. Secondly, we do not accept that there is any legal basis to enforce the requirement proposed by the applicant that at least one occupant of every dwelling must be at least 50 years of age.

65 In our opinion, the form of development is likely to attract retirees who are over 55 years of age but we also accept that the development is likely to attract other persons who are seeking “affordable housing” and this may not necessarily be retirees but more mobile members of the community.

66 Having some doubt over the premise that the proposed development will consist of 80% of residents being over 55 years of age we are not prepared to adopt the traffic generation rates proposed by Mr Pindar as they are likely to be an underestimate of the likely generation rates for the proposed development. We note that the traffic generation rates proposed by Mr Pindar are the lowest of the four traffic experts who gave evidence in the proceedings. While we accept that the traffic generation rates cannot be predicted with any high level of certainty, it is necessary to adopt a rate that will allow the assessment of the impacts on the existing roads, intersections and other road infrastructure.

67 We propose to adopt a conservative figure of a minimum of 0.3 v/h/s for a number of reasons. Firstly, this rate generally falls within the range of traffic generation rates considered appropriate by all experts. Secondly, the rate is consistent with the development at Erina. Importantly, this development is not a seniors living development so it allows residents under 55 years of age and as such is likely to be generally representative of the likely mix of residents of the proposed development. We note that the Erina site has a good bus service and is 500 m walking distance from a large shopping centre so traffic movements from this site are likely to be less than the proposed development. Thirdly, the rates are consistent with the actual surveys undertaken in the Shoalhaven City Council area based on the evidence of Mr Wells.

The evidence - trip distribution

North/south distribution

68 There was agreement between Mr Wells, Mr Millet and Mr Reisch that 60% of trips from the site will be to and from the north and 40% of the trips from the site will be to and from the south. Mr Pindar stated that the split was in the order of 65% to the north and 35% to the south.

The southerly trips

69 There was general agreement between Mr Wells, Mr Millet and Mr Reisch that around 25% to 40% of these trips will be generated to and from the south via Toolijooa Road, Beach Road and Tannery Road to and from Berry. They also used an equal 50% north/south split for sensitivity testing. The remainder of vehicles would travel north on Toolijooa Road to gain access to the Princes Highway and then proceed in a southerly direction.

70 Mr Wells suggests that as the southerly local road route is a considerably shorter distance to Berry than via the Princes Highway, it is likely to be an attractive route for the residents of the proposed development particularly where the gravel route represents only a very small section of the overall distance to Berry. The route to Berry, via the Princes Highway is 6.44 km longer than if the local roads are used. The consequence of the increased use of the local roads, according to Mr Wells, is that a number of local roads and intersections and road infrastructure will need to be upgraded to accommodate the traffic generated by the proposed development.

71 Mr Millet stated that the additional southbound traffic generated by the proposed development would require the upgrading of the intersection of the Princes Highway and Tannery Road.

72 Mr Pindar’s original position was that the applicant did not rely on the southern route as future residents will be prohibited from using this route by restrictive management practices that will form part of the contractual arrangements for the use of the site. He also suggested that elderly motorists would tend to avoid the gravel section of Toolijooa Road because of lower vehicle speeds, reduced level of comfort and amenity and risk of vehicle damage. Mr Pindar however accepted that a further assessment based on a range of up to 25% of the trips to the south should be undertaken in the context of further "sensitivity testing". His evidence was that the likely vehicle movements travelling south would not require the works suggested by Mr Wells even adopting 25% resident trips to the south.

Findings - southerly trip distribution

73 On the southerly trips using the local roads, we prefer the conclusions of Mr Wells, Mr Millet and Mr Reisch above those of Mr Pindar largely because of the shorter and more direct route to Berry via the local roads. While there will likely be residents who will prefer the route via the Princes Highway because of those reasons mentioned by Mr Pindar, we are satisfied that a greater number would prefer the shorter and more direct route notwithstanding the obvious disadvantages of a narrow bridge, a small section of gravel road and poor intersections. With greater knowledge and understanding of these particular features and a desire to avoid the busier Princes Highway (particularly in holiday times) we are satisfied that it is likely that the residents of the caravan park would make greater use of this route. We acknowledge that it is not possible to predict the amount of vehicles with any degree of certainty so sensitivity testing of some variables will be helpful in assessing the consequential impacts of the southerly traffic.

74 We have given no weight to the suggestion of Mr Pindar that the operators could somehow direct the occupants of the proposed caravan park to travel only along Toolijooa Road to the Princes Highway to travel south to avoid using the local roads through management practices associated with occupation of the site. This approach is clearly unrealistic, impractical and unenforceable and must be disregarded as a means of restricting traffic in a southerly direction on the local roads.

The evidence - impact of southerly vehicular movements

75 As most of the local roads that provide access to the south to Berry are within the Shoalhaven City Council area, Mr Wells identified the following roads, intersections and bridge as being impacted by the proposed development within the Shoalhaven City Council area:

Toolijooa Road South,
single lane bridge on Toolijooa Road South,
Beach Road,
Tannery Road,
the intersection of Wire Lane and Beach Road,
the intersection of Agars Lane and Beach Road, and
the intersection of Harley Hill Road and Beach Road.

Toolijooa Road South

76 Toolijooa Road South has a length of approximately 2 km of which 1.64 km is a gravel surface and a 5.9 m width with shoulders that vary between zero and 2 m. The existing vehicular movements are 124 vehicles/day (v/d).

77 Mr Wells states that the sealing of Toolijooa Road is not within the council's 10 year Management Plan and there is no timeframe for the work to be carried out. In any event, any sealing would be based on the current low levels of traffic and not the higher levels generated by the proposed development. Mr Wells states that for the current traffic volumes (124 v/d), the construction and alignment of Toolijooa Road satisfies the requirements in the AUSTROADS Rural Design Guide (Table 1.1). For the sealed section of Toolijooa Road, the current traffic volume can be accommodated with the 3.5 m sealed travel lane together with a 2 m wide shoulder. For the gravel section, the travel lane width required is over and above the required standard for a travel carriageway and there is sufficient width for two vehicles to pass safely. Table 1.1 provides a threshold of 500 v/d for this type of road construction. For traffic volumes greater than 500 v/d, the AUSTROADS Rural Design Guide requires a road width of 6.2-7.0 m of sealed travel lanes together with the road shoulders of 1.5 m in width with 0.5 m of this width to be sealed.

78 Adopting 1040 dwellings, existing traffic volumes are 124 v/d, a minimum of 35% of the trips to the south from the site, a traffic generation rate 3.0 v/d per dwelling (that is, 10 times the maximum peak v/h/s of 0.30) and assuming that 25%, 30%, 35%. 40% and 50% of the trips are to the south, the traffic movements along Toolijooa Road are 397, 452, 506, 561 and 670 v/d respectively, including existing traffic volumes.

79 Based on his assumptions Mr Pindar calculates the total traffic movements along Toolijooa Road South at 448 v/d.

80 For the reasons mentioned in the earlier paragraphs, we generally prefer the evidence of Mr Wells, Mr Millet and Mr Reisch. In adopting a cautious approach because of the uncertainty of the make up of future occupants of the caravan park and the potential consequences in terms of safety, we accept that the total traffic movements along Toolijooa Road is likely to be at least 500 v/d and probably greater. This exceeds the threshold of 500 v/d considered to be the upper level by the AUSTROADS Rural Design Guide for the existing construction of part of Toolijooa Road South. As such, we find that Toolijooa Road South should be upgraded to the standard required by the AUSTROADS Rural Design Guide for a road that has in excess of 500 v/d. As the 500 v/d threshold is breached only because of the traffic generated by the proposed development, the upgrading should be at the full cost of the applicant.

The single lane bridge

81 The single lane bridge on Toolijooa Road is 16 m long and 4.6 m wide with a sealed surface.

82 Mr Wells states that Australian Standard AS 5100 (Table 9.4(b)) provides that a single lane bridge is acceptable providing that the bridge has traffic volumes in the range of 500-2000 v/d and a length of less than 9 m. Based on these criteria, the bridge is acceptable. Mr Wells however states that Australian Standard 1742.2 provides minimum standards for traffic control treatment. In Mr Wells’s opinion, appropriate traffic control treatments cannot be provided for the bridge. He notes that the installation of traffic lights is an option however this option is unlikely to be approved by the RTA. The only remaining option is to increase the bridge to a carriageway width of 9.2-10 m to allow for passing traffic.

83 Mr Pindar disputes the conclusions of Mr Wells and states that the requirement to increase the bridge to a carriageway width of 9.2-10 m does not relate to a bridge but to a continuous carriageway. At 448 v/d, Mr Pindar states that the probability of any two vehicles encountering each other is unlikely and delays would be of no concern. He further states that there are a number of one-way bridges that carry substantially higher volume of traffic where signals are not provided, such as Glenhaven and Oatley. In his opinion, the one-way bridge has substantial capacity and the additional volumes of traffic are inconsequential.

84 Based on the site view, we accept that the alignment and bridge is likely to need attention to accommodate the additional traffic however we do not accept Mr Wells's view that the only option is for the reconstruction of the bridge to provide for two passing lanes. In our view, other options, such as traffic lights, have not been fully explored to the point where they can be dismissed. The option to increase the bridge to a carriageway width of 9.2-10 m is disproportionate to the likely increase in traffic and there must be some doubt over this option considering the compliance with Australian Standard AS 5100 (Table 9.4(b)). This option should be only required when all other options are exhausted and it can be clearly established that the additional traffic generated by the proposed development creates an unacceptable safety issue at the bridge and that the only means of dealing with this safety issue is an increased carriageway width.

Toolijooa Road/ Beach Road intersection

85 Even adopting the traffic generation rates of Mr Pindar, Mr Wells states that the intersection would normally require upgrading to a minimum Type A intersection however because of the poor sight distances a higher standard of intersection treatment will be required. Mr Wells suggests a seagull type treatment to RTA Road Design Guidelines Standards to ensure the conflict between the through and right turn movements is addressed.

86 In response, Mr Pindar states that to the extent that any problems may occur, they relate to a public road system that has developed over many years. If problems do exist, they should be addressed now by the local council and not totally by the applicant. The additional traffic generated by the development does not introduce any new safety or operational issues, but merely increases the potential for accidents by virtue of the increased traffic volumes. This is an unavoidable consequence of any development.

87 There was no dispute that the existing intersection design is inadequate, particularly in relation to sight distances associated with the 100 kph speed limit that applies to the area. It is a rural road that was undoubtedly constructed many years ago without the knowledge that is currently available on safety and intersection design. We do not accept the conclusions of Mr Wells that the applicant should be fully responsible for the total upgrading of the intersections to a higher standard. It is a different situation to the requirement for the sealing of Toolijooa Road South where the additional traffic generated by the proposed development was responsible for the breach of the 500 v/d threshold in the AUSTROADS Rural Design Guide. In this case of the Toolijooa Road/ Beach Road intersection, the intersection is currently unacceptable in terms of safety and, in our opinion, it would be unreasonable to require the applicant to totally remedy an already unacceptable intersection design.

88 It would however be appropriate that the applicant contribute to the future upgrading of the intersection, possibly through a Voluntary Planning Agreement with the council or alternately through other measures that increased the safety at this intersection.

89 Princes Highway/ Tannery Road intersection

90 As the proposed development does not increase the level of traffic at this intersection past a threshold requiring an intersection upgrade, we are satisfied that the applicant should not be responsible for any improvements to the intersection. In our opinion, it would be unreasonable to impose this requirement on the applicant when a Type C intersection can be justified on the existing levels of traffic.

Beach Road/ Wire Lane intersection

91 Mr Wells suggested that this intersection may require upgrading if the upgrade of the Toolijooa Road and Beach Road intersection impacts unacceptably on sight distances for this intersection. For the reasons given on the intersection of Toolijooa Road and Beach Road, we are not satisfied that the additional traffic generated by the proposed development would necessarily warrant the upgrading of this intersection.

92 The issues associated with traffic, road upgrading and intersection treatment are matters that can be addressed by conditions of consent. As agreed by the parties, the issue of conditions of consent would be subject to further submissions by the parties in the event that the Court considered that the merits justified the approval of the development application.

93 Mr McEwen submitted that a further option to address the issue of traffic generation would be to survey the traffic after the occupation of Stages A and B. The traffic would not exceed the threshold of 500 v/d on Toolijooa Road with the level of development proposed in Stages A and B but would indicate traffic generation rates and trip distribution.

94 If consent was to be granted, we would not adopt this submission as consent is sought for the complete development and not just Stages A and B. This approach would effectively leave for another time the determination of a fundamental and important part of the proposed development.

The assessment framework

95 Clause 9(3) provides that the consent authority shall not grant consent unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone. The relevant zone objective is:

(e) to protect the landscape quality of the rural area,

96 Relevantly, cl 12 provides, in part, that:

(2) The Council shall not grant consent to development on land within Zone No 1 (a) unless it has considered:

(c) the likely impact of the proposed development on the landscape, ….

97 Clause 10 of SEPP 21 provides that a consent authority may grant development consent but only after considering a range of matters identified in the clause. Relevantly, cl 10(a) requires consideration of the following:

(a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

The evidence

98 The visual impact of the proposed development on the rural landscape was addressed from trains travelling along the South Coast Railway Line, Toolijooa Road, properties in the vicinity of the site and from the Princes Highway and Beach Road.

99 Mr Williams states that the proposed development will alter the character and appearance of the site when viewed by passengers on passing trains. Open space will be retained in the immediate foreground however views of the middle of the site and slopes associated with Harley Hill will become urban in nature, detracting from the current rural character. This will be accentuated at night by the significant lighting provided with the development.

100 From Toolijooa Road, an urban character will be introduced into the locality. It will present as a large urban centre and this urban form will significantly and detrimentally affect the existing views. It will have a high visual impact through the significant boundary screening when compared to the existing open rural and agricultural character and pattern of development. The proposed landscaping would likely block views of Harley Hill. The outlook from properties in the vicinity of the site will have their generally unrestricted views of the rural landscape interrupted by an urban form and the consequential impacts of urban development such as noise, lighting and general activity associated with a development of this density.

101 Mr Prattley states that a caravan park is a permissible use within the zone and is consistent with a number of the zone objectives, including objective (c). In his opinion the largest undeveloped areas of the site allow for key existing landscape visual elements to remain and in fact be enhanced. Enhancement will predominantly occur by way of the landscape improvement program. Natural creek lines will not only remain and be protected but will be properly managed to health rather than being left to poor agricultural responses. Harley Hill will be clearly defined and protected and the significant existing vegetation properly managed. These matters have been identified and properly responded to through form, design and the proposed management of the development.

102 Mr Prattley further states that the impact on rural character is not a function of scale but of design. The proposal represents a density of approximately 10 dwellings per ha (1040 dwellings over 101 ha) which is considerably lower than traditional caravan parks with long-term dwelling sites. Much of the site is not observable or viewed from the distance in the wider surrounding rural area so the scale is not inconsistent with the site. Large setbacks have been incorporated along Toolijooa Road around existing dwellings and the development of the lower portions of the site, together with landscaping to maintain the rural character of the area. The comprehensive landscape design prepared for the site will work because of the larger dwelling sites, the wider road corridors, the large boundary setbacks and the large areas deliberately left undeveloped.

103 Ms Eastment notes that the proposal is a permissible use but acknowledges the development of the site for a caravan park will present a change in character, being a more urban character, compared to the character of the cleared south coast pastoral/rural landscape. The proposal nevertheless seeks to minimise the impact of the change of character by reflecting some of the existing landscape characteristics of the rural area in which it resides. This is achieved by extending some of the natural landscapes that are remnant on the site in a manner that conforms to good urban design and landscape architectural practice.

Findings

The permissibility argument

104 Mr McEwen SC submits, and is supported by the evidence of Mr Prattley and Ms Eastment that as a caravan park is a permissible use within the zone then additional weight should be given to the appropriateness of the proposed use on the site. The weight to be given to a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004) where (at par 117) it states:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see

1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (

(1953) 9 LGR(NSW) 163;

(1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

105 We do not accept the submission that because a caravan park is a permissible use within the zone then this somehow suggests that the proposed development should be given some greater entitlement to an approval. To adopt such a stance effectively ignores the words "in some form" in BGP Properties. It may be that a caravan park is suitable for the site but it does not follow that all caravan parks are suitable. For example, there is likely to be a considerable difference in the appearance and impacts of a caravan park that accommodates 100 sites compared to a site that accommodates 1040 sites. It is clearly a question of fact and degree that is appropriately considered through the range of relevant planning instruments, including the zone objectives through cl 9(3) and the wider considerations in s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act).

What is the existing landscape quality of the rural area?

106 The site and surrounding area is undoubtedly a picturesque rural setting with generally flat and open agricultural land towards the South Coast Railway, a backdrop of Harley's Hill and a sparse settlement pattern that characterises a rural character. Existing vegetation is limited to the higher parts of Harley Hill and scattered clumps of vegetation along the South Coast Railway Line and adjoining existing dwellings. The landscape quality of the site and surrounding area is highly regarded by those residents who live in the vicinity of the site and also many who live in the wider area.

Is the landscape quality of the rural area protected?

107 In addition to zone objective (e), cl 13(d) provides that consent shall not be granted unless the consideration has been given to the effect of the proposed development has on "…. the retention of the unique visual identity of the landscape".

108 LEP 1996 provides specific zonings for areas that have particular qualities and require special consideration. For instance, Zone No 7(d) Rural Environmental Protection (Scenic), Zone No 7(e) Rural Environmental Protection (Hinterland) and Zone No 7(f) Rural Environmental Protection (Foreshore Protection) are specific zones that address different environmentally important areas.

109 We did not understand there to be any evidence to suggest that the site and surrounding area has any special or significant landscape qualities that would place it above much of the rural land on the south coast. In saying this, cl 9(3) does not rely on the site having any special landscape qualities. It simply requires a finding on whether the proposed development is consistent with the objective that seeks to protect the landscape quality of the rural area.

110 As a starting point in determining whether the proposed development is consistent with the objective that seeks to protect the landscape quality of the rural area, we accept that the 1(a) zone gives primacy to the agricultural use of land. This is clear from the objectives of the zone. At the same time, a range of non-rural land uses are permissible, providing they are compatible with the rural use of the land. Clause 12 provides requirements for the subdivision of land within the 1(a) zone. Putting aside the requirements for concessional lots, the 1(a) zone requires a minimum lot size of 40 ha (cl 12(6)).

111 The proposal must be considered against the anticipated landscape quality of the rural area (from the requirements in LEP 1996) that is made up predominantly of open agricultural land uses on large lots with possibly some non-rural land uses that would be compatible with this character. Dwellings, either associated with the agricultural use of land or through the concessional provisions of LEP 1996, are likely to be scattered across the agricultural landscape with little concentration. Agricultural buildings used in conjunction with the agricultural use of the land are likely to be located within the rural landscape.

112 From the site view, there is little difference in the existing landscape quality of the rural area and the anticipated landscape quality of the rural area based on the requirements in LEP 1996.

113 We accept that the proposed development will not be visible from the Pacific Highway and that the impact on the landscape quality of the rural area from the South Coast Railway Line is not likely to be so unacceptable after additional landscaping that it would warrant the refusal for this reason.

114 The impact on the landscape quality of the rural area when viewed from Toolijooa Road and nearby properties is a different issue. If the proposed development is compared to the existing landscape quality or the landscape quality anticipated by the 1(a) zone, we can comfortably conclude that the proposed development does not protect the landscape quality of the rural area. There can be little doubt that the proposed development is urban in character. While the higher parts of the site are undeveloped, the landscape significance of these important features is diminished by the presence of the proposed dwellings in the foreground. Similarly, the flatter parts of the site near the South Coast Railway Line are undeveloped however they are an integral part of the proposed development through their use for sewage disposal and recreational uses. Even though this area does not contain buildings associated with the caravan park, the area will clearly be seen as an extension of the proposed development.

115 The area set aside for the dwellings will be clearly a foreign and obtrusive feature in the existing and likely landscape quality of the rural area when viewed from Toolijooa Road and nearby properties. The density of dwellings in this area will be uncharacteristic and more consistent with an urban area. Even though Ms Eastment was criticised for her landscaping proposal, we are of the view that the fundamental problem is not Ms Eastment’s landscaping scheme but the size, extent and density of the proposed dwellings. The need for perimeter screening around the existing dwellings highlights the incompatibility of the proposed development with the open rural landscape quality of the area.

116 Consistent with the findings in BGP Properties, it is our opinion that the size, extent and density of the proposed dwellings are the fundamental problems and not necessarily the fact that the proposal is for a caravan park. In our understanding, Ms Eastment simply responded to the need to landscape a site that contained 1040 dwellings. It is simply an impossible task to create a landscape scheme that could, in any practicable way, address the size, extent and density of the proposed development to the point where the quality of the rural area could be protected. We do not accept Mr Prattley’s evidence that the impact on the character of the area is not a function of scale but design.

117 For the reasons in the preceding paragraphs, we find that the proposed development, pursuant to cl 9(3) of LEP 1996 is inconsistent with the zone objective (e), in that it does not protect the landscape quality of the rural area. The consequence being that the development application could be refused for this reason alone.

118 Pursuant to cl 12(2)(c) of LEP 1996, we also find that the likely impact of the proposed development on the landscape is unacceptable and the development application could be refused for this reason alone.

The issue

119 The proposed use is permissible within the zone however the principal issue was whether it was appropriate to provide a development of this size through a development application rather than as part of the strategic planning process. This raised the question of whether the proposed development was contrary to REP1 and incompatible with the Strategy.

120 The Strategy (at p 37) relevantly states:

New residential (other than those identified in Chapter 6 Housing and Settlement) will only be supported where they meet the Sustainability Criteria (Appendix 1).

121 The Sustainability Criteria are:

The evidence

122 Mr Prattley states that REP1 was gazetted on 11 April 1986 and as such is a very old document although he acknowledges that it has not been repealed. In his opinion, the strategic provisions in REP1 have essentially been superseded by the Strategy.

123 He notes that the Strategy identifies that housing stress is a continuing problem in the region and that the population and housing challenges are to "support affordable housing strategies, as appropriate, for specific areas and developments". He states that the site was chosen after extensive searches commencing in the north of the State and specific assessment of the general area of the site. He rejects the contention that the proposal will not provide adequate levels of service for residents by stating that many suburban homes are located further from facilities and railway stations than the proposed development. The proposal provides specific transport measures, on-site retail and commercial facilities for the future residents. Mr Prattley relies on the satisfaction with the Sustainability Criteria to conclude that the proposed development is acceptable under the Strategy.

124 Mr McGaffen comes to a different conclusion. He states that State Environmental Planning Policy No. 36-Manufactured Home Estates (SEPP 36) and State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) both postdate SEPP 21 and are more indicative of the Department of Planning’s policy on the location of the form of developments proposed in this application. He notes that the proposed development would be prohibited under both of these planning documents as development would be restricted to urban zoned land or land adjacent to urban zoned land. Mr McGaffen also notes that as the proposal falls within the definition of a "residential park" under the Residential Parks Act 1998 it cannot be marketed as a retirement village/seniors living development.

125 Mr McGaffen states that the appropriate mechanism for land release is through the Illawarra Urban Development Program. The program was set up in 1982 to address the question of regional land supply and identified an area of land to the south of Gerringong as a location for future urban development. The site however was not part of this land.

126 Mr McGaffen states that the purpose of the Strategy is to provide a framework to manage regional growth. It is an important strategic planning tool in establishing the regional context of planning decisions. In accepting that the proposed used is permissible within the zone, the size of the proposed development, the level of on-site facilities proposed and its occupation by permanent residents mean that the development is the equivalent of a new town. As such the development must be considered in the context of the Sustainability Criteria in the Strategy. He states that the proposed development is inconsistent with all but Criteria 3 and 4.

Findings

127 On this issue, we prefer the evidence of Mr McGaffen for a number of reasons. Firstly, the proposal represents a significant urban expansion for the area, akin to a new urban village. The agreed potential population is between 1556 to 1764 people. This population is similar to the existing populations of Berry and Gerringong. In our view, it would be clearly inappropriate to allow an urban expansion of the size proposed in this application in an ad hoc manner, particularly when mechanisms such as the Illawarra Urban Development Program are available to properly consider and ultimately designate appropriate areas for urban expansion on a regional basis. To adopt the approach advocated by the applicant would be to ignore the established rational and regionally based planning approach for the urban expansion of the Illawarra established through the EPA Act and REP 1 and implemented though the Illawarra Urban Development Program.

128 Secondly, we accept that it is appropriate to consider the Sustainability Criteria even though the land is not to be rezoned. We do not however accept that the criteria are satisfactorily addressed by the proposed development. We have previously commented on the unacceptable impact on the agricultural use of the land (Criterion 6. Natural Resources). The Strategy does not prioritise or weight the Sustainability Criteria and an inconsistency with a single criterion may be sufficient for an overall finding of inconsistency with the Sustainability Criteria because of the significance of that criterion. We consider this to be the case with the unacceptable impact on the agricultural use of the land and Criterion 6.

129 Thirdly, Mr Prattley’s evidence relies heavily on matters that are not fully resolved. These include the provision of reticulated water via a 150 mm main from an existing main 6 km away. The construction of the proposed main is uncosted and the agreement by Sydney Water is in general terms rather a specific approval. Similarly, the protection (and loss) of the riparian corridors on the site is not addressed. While there is no legal obligation to address this matter at this stage, the evidence suggests that the proposal may be in conflict with the future requirements of the Department of Water and Energy.

130 Fourthly, Mr Prattley’s evidence also relies on conditions to obtain satisfaction with the Sustainability Criteria in a number of areas. Because of the location of the site, some 6.1 km from the nearest commercial centre at Gerringong, Mr Prattley maintains that Criterion 1. Infrastructure is satisfied, in part, through the provision of a range of services to be provided on site. Similarly, in his opinion, Criterion 2. Access would be satisfied through the provision a private bus to provide access for the residents to at least Gerringong and Berry.

131 While we accept that a range of services are to be provided on site, as well as a private bus, the provision of these and other facilities does not necessarily overcome the concern expressed by Dr Stubbs that the site is isolated from a wide range of the necessary community facilities and services. Isolation does not necessarily mean a large distance from the nearest centre but simply that residents are isolated because they are not sufficiently mobile to gain access to existing facilities. This may not be the case if the proposal were located adjoining an existing commercial centre.

132 The isolated location has particular importance when the likely residents could be characterised as vulnerable by displaying many indicators of disadvantage, such as old age, low income, low levels of savings, a depreciating asset in the form of the manufactured home, increasingly disabled with a high demand for support services and with increasing reliance on public transport. A loss or reduction in the services provided on-site, for whatever reason can potentially have a significant impact on the population of the caravan park for this demographic.

133 It must be remembered that conditions of approval cannot necessarily address all issues. For example, a condition may require the provision of a shop on site however it cannot reasonably specify the range of goods to be provided at that shop or the reasonable pricing of the goods. Similarly, it would be impractical to condition important issues such as fares for the on site bus. The inability of future residents to have access to the on site bus because of the cost of the fare would create unacceptable isolation that would not be such an issue if the site was located near an existing commercial centre.

134 Fifthly, there are a range of facilities that are required by the likely future residents of the caravan park that cannot be provided on-site (Criterion 1- Infrastructure). These may include libraries, sporting facilities, educational facilities or specialist medical facilities. These are facilities that can be planned and potentially made available if urban expansion is considered in a regional context and at a State government level where the opportunity exists to involve the providers of these facilities in the planning process. The potential unplanned take-up of existing community facilities is also likely to unacceptably impact on the current users of these facilities (Criterion 8. Quality and Equity in Services).

135 Sixthly, we agree with Mr McGaffen that the proposal is inconsistent with the sensible contemporary approach adopted by SEPP 36 and SEPP SL of limiting similar style developments to urban zoned land or land adjacent to urban zoned land for the reasons in the preceding paragraphs (Criterion 1- Infrastructure).

136 We do not accept that the opportunity available through satisfaction of the Sustainability Criteria in REP 1 is available to the applicant because of the inconsistency with a number of the criteria, particularly Criteria 1, 2, 6, 7 and 8.

137 Dr Stubbs, Mr Haratsis, Ms Black and Dr Southorn addressed the potential social and economic impacts of the proposed development in considerable detail. Mr Relf provided evidence on access issues. For the reasons stated earlier in the judgement the proposed development cannot be approved however we will address the main social and economic areas in contention.

Affordability

138 Dr Stubbs and Mr Haratsis generally agreed that the likely occupants of the proposed dwellings will come largely from those who sell an existing dwelling and will purchase the dwelling outright. This will comprise around 70 to 80% of the likely occupants according to Dr Stubbs and Mr Haratsis.

139 Mr Haratsis states that the target market is retirees, the vast number of which are under superannuated, who can sell their house and have $180,000 to $240,000 to purchase a dwelling in the development and retain a perpetuity in the order of $80,000 to invest and utilise to pay the weekly rental fees for the site of $130.

140 Dr Stubbs states the remainder will comprise lower income workers and younger families who will borrow to purchase into the development. Both experts agreed that home loans are not available to finance the purchase of a manufactured home due to the tenure arrangements. Personal loans or vendor finance, which attract higher interest rates, are available. The occupants are likely to include middle aged and older divorced people and those who have been unable to enter or sustain homeownership but ultimately demand is likely to be influenced by location and market conditions.

141 Dr Stubbs notes that in terms of housing "cost", the lowest cost option proposed by the applicant is more expensive than the most comparable or higher quality housing options, including renting a 2 or 3 bedroom home in Kiama, owning or purchasing a median priced home in Kiama, or buying into a waterfront retirement village in the Shoalhaven. She was concerned that manufactured dwellings could only be purchased from the operator of the site and that the price included a “mark up” on the cost of purchase directly from the manufacturer. For example the “Premium” dwelling costs $280,000 as part of the development however an equivalent dwelling when purchased directly from the manufacturer costs $156,000 installed. Mr McEwen submitted that the price difference reflected the cost of providing services and community facilities for the development.

142 Dr Stubbs concludes that the proposal does not represent "affordable housing" or “low cost housing” and is likely to constitute a poverty trap for some occupants, exacerbated by security of tenure issues, depreciation of the dwelling and lack of appreciation through land ownership.

143 Mr Haratsis states that the proposed development will appeal to a large number of Illawarra residents who cannot afford a high amenity location. The key driver is the low-cost entry point and the fact that there are extremely limited alternatives. Mr Haratsis relies on the fact that 70 to 80% of purchasers are expected to have sold an existing dwelling and will have sufficient equity to purchase a home in the proposed development outright.

Access

144 Dr Stubbs and Mr Relf agreed that SEPP SL was a reasonable defacto benchmark for pedestrian accessibility and that the availability of an on-site bus service was integral to the development. There was originally disagreement between the experts on the number of sites that satisfied the accessibility requirements in SEPP SL. Dr Stubbs stated that around 74% of sites did not comply whereas Mr Relf stated that 90% of the sites within 400 m of the Village Centre are accessible by walking along pedestrian routes at a gradient not exceeding 1:14.

145 To support Mr Relf’s evidence the applicant provided additional plans at the hearing that showed the location and levels of ramps between roads and through existing areas of open space. In any event, Mr Relf stated that the on-site bus service could be used to provide access for residents within the site. When questioned on the suitability of access to the proposed dwellings, Mr Relf indicated that a ramp could be provided at the appropriate grade from the car parking space to the first floor level for the dwellings on the high side of the streets although no plans were available to show the location and design of the ramp. A lift or electric stair chair could also be provided, if necessary. Direct access from the car parking to the dwelling was available for the dwellings on the low side of the street.

Impact on services

146 The principal position adopted by Dr Southorn was that Shoalhaven City Council is unable to obtain any rate income or seek any payment or contribution towards the upgrading and maintenance of community facilities, services and infrastructure likely be used by persons residing at the development. This is compounded by the fact that Berry is the closest town to the proposed development. It has a large retail area and offers a range of facilities that would attract residents from the proposed development. If located within the Shoalhaven local government area, Dr Southorn calculates that a contribution of $1,471,614 would be required.

147 Dr Stubbs states that given the limited nature of services provided on-site, and the uncertainty of their provision, access to the range of services and facilities that would reasonably be required by the target group in the nearest service centre becomes very important. In her opinion, Berry is likely to be the most desirable location for a number of reasons.

148 Dr Stubbs considers that the proposal has not demonstrated that community services such as HACC services can meet the likely demand that would be generated by the development. She states that the provision of services should be “locked into” the development. The requirements of SEPP SL should be used as a benchmark to determine whether adequate services would be provided. She states that SEPP SL requires written evidence and that this has not been provided for this development and therefore there is not sufficient certainty.

149 Ms Black has consulted with existing service providers and considers that community services will respond to the demand over time. She states that it is more likely that the future residents of the proposal would use community services within the Kiama local government area and other services further to the north at Wollongong and Shellharbour rather than those in Berry or the Shoalhaven. Ms Black notes that while the Shoalhaven local government area contains numerous health and medical services, support groups and social groups that could be utilised by the residents of the proposed development, the distances to these services and proximity of other compatible services in Kiama and Shellharbour would potentially negate the need for future residents to rely on the services in the Shoalhaven.

Findings

150 There was agreement that there is a need for “affordable housing” and “low cost housing” in Kiama. The evidence suggests that the dwellings will be affordable, but only for those persons who have sufficient funds to purchase a dwelling. These persons are likely to be existing homeowners who are seeking a change of lifestyle or freeing up equity in an existing dwelling. Persons outside this group cannot rely on home loans because of the tenure arrangements for the caravan park and must rely on other sources of finance such as personal loans or vendor finance. There is considerable merit in the argument of Dr Stubbs that the proposal does not represent "affordable housing" or “low cost housing” for the majority of low to moderate income households who would have to borrow to purchase a dwelling and is likely to constitute a poverty trap that is exacerbated by security of tenure issues.

151 Dr Stubbs and Mr Haratsis carried out extensive research and analysis on the question of affordability. The key disagreement between the experts was whether the proposal provided “affordable housing” or low cost housing”. Clause 10(c) of SEPP 21 requires a consideration of whether there is adequate low cost housing in the area. SEPP 21 does not define “low cost housing” nor is “affordable housing” defined in the relevant planning instruments. However Dr Stubbs states that “affordable housing” is generally defined to mean that no more than 30% of gross income is spent on housing costs, whether rental or purchase. She stated that “low cost housing” could only be determined by a comparison with other similar housing types. We accept her evidence that the lowest cost option proposed by the applicant is less affordable than the most comparable or higher quality housing options available in the area.

152 The fact that the cost of housing in the proposal is less affordable than other comparable accommodation in the area gains importance when it must be remembered that the proposal does not include any ownership of the land, which is generally the component of housing that appreciates over time while the dwelling depreciates. Also of importance is the additional cost (in the order of $90,000 per site) that is incorporated into the purchase price for a dwelling in the development and the fact that the dwelling may only be purchased from the operator of the caravan park, thus creating a monopoly situation. Clearly, the cost of providing infrastructure and community facilities must be incorporated into the purchase price of a dwelling however, the amount appears to be excessive when calculated over the number of dwellings proposed.

153 We accept Dr Stubbs evidence that when the cost of a dwelling is compared to other housing in the area, it is not “low cost housing”.

154 We accept that the proposed development increases the range of housing choice that is available in the Illawarra region and, as such is consistent with the Strategy (p 22) and REP 1 (cl 58(c)) however we are satisfied that the proposal does not represent "affordable housing" or “low cost housing”.

155 The use of SEPP SL as a benchmark for access was clearly a late consideration by the applicant. The site and architectural plans did not properly address this issue and it was only the oral evidence of Mr Relf that provided any consideration of the development against the access requirements in SEPP SL. In our view, and if the proposed development was considered as an SEPP SL development (as agreed by the experts) the evidence was insufficient to address the issue of access. If access was the only outstanding issue, we accept that it could be addressed through a deferred commencement condition.

156 The impact on existing social infrastructure is an important consideration taking into account the agreed position of the experts that around 70 to 80% of the intended population are likely to be around 55 years of age. In balancing the evidence of Dr Southorn and Ms Black and with the benefit of the comprehensive site view, we accept that Berry will be a desirable destination of residents. With the need to upgrade the local roads to Berry, this route is likely to used more regularly by the residents of the proposed development and the demand on the facilities at Berry is likely to increase. We accept that the difference in distance between Berry and Gerringong from the site is not likely to be a major consideration for people using vehicles – the reason for choosing either centre is likely to be based on the availability of services and facilities and the accessibility of the centre.

157 While Gerringong is the closest retail centre at 6.1 km and provides a range of retail shops and commercial uses, community and health services, it provides constraints for seniors through steep grades and lack of footpath in some locations. Berry, on the other hand, is located 7.8 km away via local roads (13.7 km via the Princes Highway) it also provides a range of services and retail facilities. It is a more physically accessible centre and thus more suited to the target group of the development.

158 We did not understand there to be any disagreement between Dr Stubbs and Ms Black that there would be an increase in the demand for services and facilities created by the proposed development in the area. They however disagreed on how these services would be provided to meet the demand created by the development.

159 We prefer the evidence of Dr Stubbs as it is not acceptable (and unlikely according to Dr Stubbs), to expect that funding for limited and high demand social services would respond in a timely manner to meet the demand generated by the proposed development. Rather it is appropriate that the required services are targeted through a strategic planning process to meet the anticipated demands of future urban populations.

160 While retail and commercial services are most likely to respond to the increased demand over time, social services are a different matter as the range of facilities required to respond to the likely population of the proposed development, such as HACC services, are likely to be in demand at an early stage, based on the targeted population. The timely provision of these services is likely to be hampered when the increase in population is unplanned. Existing recreational facilities are also likely to need to be embellished or new facilities provided by the additional population generated by the proposed development.

161 We make no specific findings on an appropriate contribution or distribution between the councils for the additional services generated by the proposed development, as this would require further consideration although we acknowledge the difficulty in this task.

Sewage disposal

162 In general terms, the proposed development provides for the collection of sewage and its transportation to storage dams located at the lower portion of the site near the South Coast Railway line. The dams are flood proof to above the 1 in 100 year flood. The collected sewage will be treated and spray irrigated within the areas shown as recreational areas.

163 The proposed sewage treatment facility was the subject of considerable discussion between Mr Jewell and Mr Norris culminating in an agreement that the proposed facility was acceptable. Mr Jewell however maintained the need for more details of the treatment process whereas Mr Norris maintained that these details could be provided at a later date, as there is sufficient information available to ensure that a system is available and can operate to the required level of service. There was also agreement between Mr Jewell and Mr Norris that the spray irrigated areas could operate as recreational areas without risk to public health.

164 In the absence of any expert evidence to suggest that the sewerage treatment facility cannot operate to an acceptable level, we accept the agreed position of Mr Jewell and Mr Norris, although if approval was to be granted we would adopt the more cautious approach of Mr Jewell because of the size of the proposed development and require the details to be provided as a deferred commencement condition.

165 We note that the defined spray irrigation areas are unfortunately located adjoining existing residential dwellings and at a considerable distance from the proposed dwellings. The proximity of the spray irrigation areas was a significant concern to the residents of the adjoining dwellings. The agreed position of Mr Jewell and Mr Norris was that the relationship of the spray irrigation areas and the existing dwellings was acceptable taking into account health and safety, the proposed vegetation screens and buffer areas.

Stormwater disposal

166 The method of stormwater disposal was amended during the hearing to provide stormwater disposal through collection in concrete kerb and gutter and to engineered re-vegetated area containing linear wetlands and/or shallow depressions rather than collection and partial absorption in grassed swales in the road reserve. Mr Nichols and Mr Norris agreed that the amended stormwater disposal system will provide an acceptable and appropriate water quality outcome for the site.

167 The issue of potential flooding was addressed through the adoption of a finished flood level of 4.5 AHD subject to a further flood study being carried out.

168 In the absence of any expert evidence to suggest that the stormwater disposal system will not achieve an appropriate water quality outcome for the site, we accept the agreed position of Mr Nichols and Mr Norris.

Conclusion

169 The proposed development fails on a number of important grounds. Even though the proposed development is a permissible use within the 1(a) Rural zone, a thorough examination of the proposal against the requirements of LEP 1996 highlighted the unsuitability of the proposed development for the site. We accept that the provision of housing that increases the range of housing stock within the Illawarra area is a laudable objective however the achievement of this objective should not be to the detriment of other equally important objectives.

170 The site is used for viable agricultural purposes and LEP 1996 and other relevant planning documents place considerable importance on the retention and protection of agricultural land. We have found that the proposal is unacceptable as it is not consistent with the relevant objective for the 1(a) Rural zone because it does not protect the site’s agricultural potential nor prevent the fragmentation of rural land of prime crop and pasture potential. We have little trouble in concluding that potential loss of important agricultural land of the quality and size of the site should only be considered in a wider strategic planning context and not as an ad hoc consideration as part of a development application.

171 It must be accepted that land uses, other than the agricultural land uses, can occur within the 1(a) Rural zone however the size and density of the proposal will clearly adversely impact on the landscape quality of the rural area. Landscaping is simply not a viable or practical means to screen or minimise the impact on the landscape quality of the rural area of a development of the size and density proposed.

172 While the proposal will add to the supply of housing in the region it has not been demonstrated that it will provide affordable housing or low cost housing beyond those who have sufficient resources to purchase a dwelling outright. Adequate social services and facilities are unlikely to be available to meet the needs of the population of what is essentially a new town, particularly given the likely demographic and socio economic status of the future occupants. It is likely that the users of the existing services and facilities will be disadvantaged by the competition from residents from the proposed development for the scarce services and facilities in the region.

173 The proposal is clearly inconsistent with the sensible and orderly strategic planning objectives for the Illawarra Region given its size and potential population. The impacts of a development of this size are clearly not what is contemplated by the planning controls and it is simply not good planning to place a development of this size on rural land without the support that would be provided by a proper a strategic planning approach.

174 The Orders of the Court are:

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G T Brown
Commissioner of the Court

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Annelise Tuor

Commissioner of the Court

CITATION:	Wygiren v Kiama Municipal Council and Anor [2008] NSWLEC 1233
PARTIES:	APPLICANT Wygiren Pty Limited FIRST RESPONDENT Kiama Municipal Council SECOND RESPONDENT Shoalhaven City Council
FILE NUMBER(S):	11026 of 2007
CORAM:	Brown C - Tuor C
KEY ISSUES:	Development Application :- construction of a caravan park - loss of agricultural land - the impact on the landscape quality of the rural area - issues associated with providing a housing development in an area not specifically designated for such a development - social impacts - impacts on the existing road network
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 1996 State Environmental Planning Policy No 21 Illawarra Regional Environmental Plan No 1 State Environmental Planning Policy (Seniors Living) 2004
CASES CITED:	Hub Action Group Incorporated v Minister for Planning and Orange Council [2008] NSWLEC 116 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
DATES OF HEARING:	27,28/03/08, 31/03/08-04/04/08
DATE OF JUDGMENT:	18 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC with Mr M Staunton, barrister SOLICITORS Wilshire Webb Staunton Beattie FIRST RESPONDENT Mr I Hemmings, barrister SOLICITORS Russell McLelland Brown with Kearns Garside SECOND RESPONDENT Mr M Fraser, barrister SOLICITORS Morton & Harris