Land and Environment Court New South Wales Medium Neutral Citation: Links Nowra Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1794 Hearing dates: 9 and 10 October 2023 Date of orders: 22 December 2023 Decision date: 22 December 2023 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application no DA21/2033 for tourist and visitor accommodation with community title subdivision, road works, drainage works and ancillary development at 51 Tea Tree Lane Nowra Hill, as amended, is refused. (3) The exhibits are returned, except for Exhibits 1, 2, A, B and C. Catchwords: DEVELOPMENT APPEAL – tourist and visitor accommodation – local rural character – density – essential services – community title subdivision Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7 Environmental Planning and Assessment Regulation 2000 Water Management Act 2000, s 91 Rural Fires Act 1997, s 100B Shoalhaven Local Environmental Plan 2014, cll 7.11, 7.21 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19 Wharf 11 Pty Ltd v Sydney City Council [1991] NSWLEC 21 Texts Cited: Shoalhaven Development Control Plan 2014 Category: Principal judgment Parties: Links Nowra Pty Ltd (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/359591 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application no DA21/2033, lodged with Shoalhaven City Council (Council) on 1 September 2021. The Class 1 appeal was filed to the Court on 29 November 2022. 2. The original Class 1 appeal sought development consent for a tourist facility comprising 28 tourist accommodation units, managers residence, community house, ancillary recreational structures and community title subdivision for 27 lots (development application). Background 1. On 25 August 2023, leave was granted by the Court for the applicant in these proceedings, Links Nowra Pty Ltd (Links), to amend the development application. The proposed development is described as follows (Ex 2): * Removal of vegetation; * Tourist and visitor accommodation comprising 20 tourist accommodation units/cabins; * Caretakers house; * Community amenities building with associated carparking; * Outdoor recreational facilities (horse stable, horse trail, picnic tables, walking/cycling tracks); * 20 lot community title subdivision; * Roadworks; * New fencing and landscaping works; * Stormwater drainage works; * Sewer pump station; and * Upgrades and intersection works at the intersection of Tea Tree Lane and BTU Road, including new left and right turn lanes into Tea Tree Lane, new concrete median island and associated upgrades around the intersection. 1. A Notice of Motion was filed to the Court on 5 October 2023 (Ex A). During the hearing, leave was unopposed to amend the development application. Accordingly, the application was amended as follows (amended application): 1. Updated architectural plans to identify the lot allocations and reflect the proposed subdivision plan; 2. Amended and updated traffic report and design as set out in the Traffic Joint Expert Report (Ex 6); 3. Revised stormwater management plans to reflect the traffic engineering plans and traffic report; 4. Updated waste management report to reflect the amended proposal. 1. The amended application is integrated development in accordance with s 4.46 of the EPA Act. General Terms of Approval have been sought and received from NSW Rural Fire Services and Department of Planning and Environment - Water for: 1. Section 100B of the Rural Fires Act 1997 - Bushfire safety 2. Section 91 of the Water Management Act 2000 – Controlled activity approval 1. The key issues in the proceedings can be distilled to incompatibility with the character of the rural area, excessive density, land use conflict and the provision of essential infrastructure. The site and locality 1. As observed at the on site viewing and with consideration of the documentation before the Court, the site is described as set out below. 2. Development consent number SF10765 for subdivision was approved on 7 December 2020 (parent lot). At the time of the hearing, the subdivision had not been registered. The parent lot is bisected by an unformed Crown road reserve. The subject site is located on unregistered Lot 54. An extract of the approved subdivision from the Amended Statement of Facts and Contentions (ASOFAC) is shown below: 1. The subject site has an area of approximately 41.84ha and frontage of 20.155m to Tea Tree Lane, Nowra Hill. The subject site is primarily zoned RU2 Rural Landscape pursuant to the Shoalhaven Local Environmental Plan 2014 (SLEP). The subject site is also zoned C3 Environmental Management along a narrow edge of the eastern boundary. 2. The remaining unregistered lots 1-53 of the parent subdivision adjoin the subject site atop the north and are zoned E4 General Industrial Zone. 3. The subject site currently comprises vegetation, fencing and farm dams. There are two mapped watercourses on the site (located in the north-west and south-east). 4. The subject site is affected by a road reservation for the future West Nowra Bypass (Western Bypass Corridor) by the SLEP. 5. There are several dwellings with associated structures within close proximity of the access handle to the subject site. As raised through the objections and shown on site, in the vicinity of the subject site are farm areas, a distillery, and rural residential development with ancillary structures. On site viewing 1. Commencing on site, the Court heard oral concerns from objectors which are discussed below at [15]. The parties drew the Court's attention to the proposed physical siting of the development, location of the adjoining residents, internal road network, trees and landscaping, flooding and water areas, views externally of the site and BTU Road intersection works. Parts of the internal road were pegged as shown in Ex D. Public Submissions 1. The original development application made to the Council was notified from 17 November 2021 to 17 December 2021. Thirty-four submissions were received (Ex 2). The Class 1 amended application was notified from 29 August 2023 – 12 September 2023, where 24 submissions were received. 2. The Court heard oral concerns from objectors at the commencement of the hearing. Where available, the Court was also provided with written copies of the concerns expressed on site. All submissions received during the life of the development application and appeal have been received by the Court through Council's bundle of documents (Ex 3) and considered. The concerns expressed on-site and in writing throughout the process are summarised as follows: * Impacts on rural character, rural outlook, rural setting and wellbeing; * Residential appearance and potential future use as residential; * Excessive density, setbacks and characterisation of development; * Traffic impacts (congestion, BTU Road intersection, upgrades required to Tea Tree Lane and BTU Road, safety, driveway access); * Impacts from domestic animals on surrounding agricultural businesses and wildlife; * Impacts on movement of agricultural stock and availability of native grasses for grazing; * Security, trespassing, street lighting and light pollution; * Location of pathways adjoining neighbouring residences and lack of landscaped screening in these areas; * Wastewater treatment and operational impacts on soil, crops, animals and odours (including impacts on plant crops utilised by the adjoining distillery); * Acoustic impacts (construction, traffic and operational); * Natural environment impacts (sodic soils, water movement, flooding, erosion, wildlife/fauna, flora, bushfire, wetlands); * Introduction of diseases from metropolitan visitors; * Location not suitable for tourists, lacks nearby amenities and public transport; * Inappropriate location near the naval base, gaol, industrial area and Nowra Bypass; * Waste management; * Contamination; and * Lack of consultation. Expert Evidence 1. In accordance with its usual practice, the Court directed experts in planning, traffic and stormwater to confer in relation to nominated contentions prior to the commencement of the proceedings. 2. Expert evidence for the planning issues was submitted in a joint expert report (planning JER) (Ex 5) by Mr Jeffrey Bulfin for Links and Mr Jeremy Swan for Council. Oral evidence by the planning experts was provided during the hearing. 3. Expert evidence on the traffic issues was submitted in a joint expert report by Mr Hany Takla for Links and Mr Paul Corbett for Council (Ex 6). The Issues 1. Council raised a number of issues within the ASOFAC filed 14 September 2023 that is says warrant refusal of the application: * Contention 1 – Density, character and built form * Contention 2 – Land use conflict with surrounding rural and rural-residential land * Contention 3 - Traffic and road design * Contention 4 – Site suitability * Contention 5 – Stormwater drainage and servicing (essential services) * Contention 6 – Public interest * Contention 7 – Insufficient information relating to consistency of plans and documents, vegetation clearing, the landscape plan and the evacuation plan. 1. On the basis of the joint expert reporting and amendments / further information provided during the hearing, it was agreed by the parties that the contentions in relation to traffic and insufficient information (contentions 3 and 7) have been resolved. The Planning Framework 1. In accordance with the ASOFAC, the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development: * EPA Act * Environmental Planning and Assessment Regulation 2000 (EPA Regulation) * Water Management Act 2000 * Rural Fires Act 1997 * State Environmental Planning Policy (Resilience and Hazards) 2021 * State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 * SLEP * Shoalhaven Development Control Plan 2014 (SDCP) Essential Services 1. Council presses contention 5 that cl 7.11 essential services of the SLEP has not been satisfied. The contention relates to a precondition to the grant of consent and I will deal with it first. 2. Council contends that adequate arrangements have not been made for the currently unavailable supply of water and sewage to the part of the site split by Crown land. Clause 7.11 states as follows: 7.11 Essential Services (1) Development consent must not be granted for development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required— (a) the supply of water, …. (c) the disposal and management of sewage 1. The amended application includes the connection of water and ongoing disposal and management of sewage. There are no issues raised in relation to the impacts, establishment or ongoing operation of these works. The issue is the traversing of drainage pipes, water mains and sewer infrastructure through Crown land. 2. Owners consent for those works has been granted by the Crown for the lodgement of the development application (Ex 3, Tab 36). Mr Seton submits that no approval or consent has been provided by the Crown for an easement or the future construction and occupation of their land for these services. Mr Seton submits that there are no details on potential easements or how that might be reflected on the title of the land. On this basis, adequate arrangements have not been demonstrated and cl 7.11 has not been satisfied. 3. Mr Seton relies on Preston CJ's decision of Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake), in particular paragraphs [40] to [56] where his Honour dealt with a similar clause for water and sewer services in a State Environmental Planning Policy. Mr Seton submits that deferral of this satisfaction cannot occur through conditions of consent, as the state of satisfaction that adequate arrangements have been made needs to occur at the time of determination. The imposition of conditions defers this satisfaction to after the grant of consent. At this time, the amended application does not provide details of any easements and there is no certainty about the provision of adequate services for water and sewer to satisfy cl 7.11. 4. Mr Galasso SC submits that part of the site is already connected to water and a reticulated sewage system forms part of the amended application. The adequate arrangements to occur is a matter of crossing the Crown's unformed road with pipes for water and sewer. Mr Galasso SC submits that the Crown has provided owners consent for those works and acknowledges the associated road closure application. Mr Galasso SC submits that the arrangements for these services are known to satisfy cl 7.11. 5. Mr Galasso SC submits that the circumstances are different from Palm Lake. In this circumstance, there is no proposed deferred commencement condition. The Crown consent is clear that it provides owners consent for the works on their land and contemplates the procedures following any development consent. Consideration 1. The relevant circumstances in Palm Lake, put simply, were in relation to a deferred commencement condition for a separate development application for related works. One of the aspects to be assessed and dealt with in that deferred commencement development application was the provision of water and sewer to service the main development. 2. Here, the aspect in dispute is about future approvals required from the Crown for subsequent physical access, and potential easement and/or title arrangements for implementation of those works to satisfy cl 7.11. 3. For the subject application, I accept Mr Galasso SC's submissions that the circumstances are different to Palm Lake. The impacts and design for the proposed water and sewer infrastructure are known, form part of the amended application and have been considered as satisfactory by the parties. 4. I consider that the concerns raised by Council relate to the next steps of the development consent process and subsequent approvals that may be required from a land owner (in this instance, the Crown). I accept Mr Galasso SC's submissions that the Crown's letter contemplates this, though without authorising any such approval. 5. Though dealing with a different issue in relation to owners consent for an amended development application, Craig J in Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19 (Rothwell) relevantly considers this issue at [37] and [38]. At [37], his Honour had regard to the observations of Cripps CJ in Wharf 11 Pty Ltd v Sydney City Council [1991] NSWLEC 21 (Wharf 11), in that the Court's concern is the granting of a development consent. 6. In Rothwell and Wharf 11, a development consent itself does not authorise the implementation of development. The implementation of a development consent is a matter between those owners and is not a consideration of the Court in the granting of development consent process. Further, the grant of consent does not grant any rights to any person to implement the development consent. 7. The Crown's owners consent plainly authorises the lodgement of a development application for works on its land. The works were specified as internal private roads, pedestrian pathway, stormwater pipeline, sewer line and an access track to the sewage pump station on its land. 8. Whilst the Crown's owners consent does state that "the grant of this Land Owner Consent does not guarantee that any subsequent authority to occupy will be granted", it does contemplate the grant of development consent and specifies the EPA Act. With respect to seeking approval to occupy or undertake works, the Crown's letter states that "if development consent is granted, you must make contact with the Nowra Crown Lands office to determine the next steps". 9. I find that the further approval and stated next steps falls within the realm of the implementation of the consent and post-consent matters between Links and the Crown. The Crown's owners consent for the lodgement of the development application for the specified essential works located on their land is adequate. I find that there is sufficient certainty for the purposes of the development application process that sewer and water services will be provided in accordance with cl 7.11. Character and density 1. The Council contends that the amended application does not maintain and is incompatible with the rural landscape character of the area and exceeds the density provisions of the SDCP. 2. In dispute is if the proposed development is compatible with the rural landscape character of the area in having regard to the objects of the RU2 Rural Landscape zone and consideration of relevant character and density provisions within the SDCP. 3. The subject site is primarily zoned RU2 Rural Landscape in the SLEP with the objectives set out below: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. (Emphasis added.) 1. The SDCP contains the following relevant Chapters regarding the issues of character and density: * Chapter 1: Introduction; * Chapter G15: Tourist and Visitor Accommodation; * Dictionary. 1. Before addressing the key issues of character and density, it is first necessary to answer the following questions that are in dispute: 1. For the purposes of the SDCP, is the proposed development defined as or encompasses 'tourist cabins', a 'tourist facility' and/or 'tourist accommodation units'? 2. If the proposed development is defined as or encompasses 'tourist cabins', what is the land area for the purposes of the SDCP density control 5.3 Tourist Development in Rural Areas and acceptable solution A25.1? What is the proposed development defined as under the SDCP? 1. In dispute between the parties is if the proposed development falls within one or more of the SDCP definitions for 'tourist cabin', 'tourist accommodation units' and 'tourist resort'. The primary implication is the application of different density controls and acceptable solutions. 2. The definitions within the dictionary of the SDCP for the three development types are set out below: Tourist accommodation unit means a dwelling used, designed, constructed or adapted to be used for the provision of holiday accommodation, not permanent occupation, being one of a group of similar dwellings forming part of a tourist facility. Tourist cabin means a freestanding building used to provide short-term self-contained holiday accommodation. Note: Tourist cabin is a type of tourist and visitor accommodation as defined in SLEP 2014. Tourist resort means a building or buildings containing more than twenty (20) accommodation units providing for short term visitor accommodation and recreation, which building or buildings may include a refreshment room and space capable of being used for functions such as receptions, conventions and may provide other recreational facilities incidental to such accommodation. 1. Mr Swan for Council says that the proposed development is best described as 'tourist cabins' rather than the other two definitions. He says that the proposal is for free standing buildings for short term accommodation. 2. With respect to 'tourist accommodation units', Mr Swan says that the accommodation does not propose multiple dwellings within the same building that would ordinarily be anticipated with 'units'. 3. Mr Swan says that the proposed development is not a 'tourist resort' as it does not contain accommodation units and does not propose more than 20 units as required by the definition. 4. Mr Bulfin for Links says that the appropriate approach to characterisation of a development should be as a whole, rather than its individual parts. He says that the proposed development should be characterised as a 'tourist resort' as the dominant use and that the individual dwellings would be 'tourist accommodation units'. Mr Bulfin says that 'tourist cabins' are too narrowly defined to properly characterise the entire development, which also includes a manager's residence, community building, horse stables, picnic areas and walking trails. The 'tourist resort' definition envisages these aspects in an integrated manner and more accurately encompasses the essence of the overall development. 5. Mr Bulfin says that characterisation of a development also needs to consider how a development will operate. The assumptions within the planning JER is that the individual accommodation units will be separately owned but centrally managed and marketed as set out in the Plan of Management. This centralised marketing and management as an integrated resort further supports the characterisation as a 'tourist resort'. 6. With respect to the development not containing over 20 units to meet the tourist resort definition, Mr Bulfin's evidence was that the SDCP specifically encourages flexibility and this should be applied to the definition. 7. Mr Bulfin says that there is no definition of a group of tourist cabins. Notwithstanding, he accepts that the 'tourist resort' definition does preclude 'tourist cabins' as a component. It was ultimately accepted by Mr Bulfin in oral evidence that the definition of tourist cabin could also define the proposed development. Consideration 1. The definition issue does not relate to permissibility. It is accepted by both parties that the amended application is characterised as visitor and tourist accommodation as defined by the SLEP and permissible with consent in the RU2 and C3 zones. As described above, the issue is the applicable SDCP definition and the subsequent applicable SDCP provisions. 2. For the reasons set out by Mr Swan at [46] to [48], I accept that the proposed development meets the definition of 'tourist cabins' for the purposes of the SDCP. The majority of the development is exactly as described in the definition in that they are free standing buildings for short term, self contained tourist accommodation. 3. Whilst I accept Mr Bulfin's evidence that the proposed development proposes more facilities than 'tourist cabins', these aspects are adequately characterised by the overall SLEP characterisation of tourist and visitor accommodation and can also be characterised as ancillary to the 'tourist cabins'. 4. In simple terms, the proposed development does not meet the definition of being a tourist resort as it does not contain more than 20 units. I do not accept that the SDCP provides for flexibility of the Definitions chapter. Chapter 1: Introduction of the SDCP clearly outlines flexibility "in the application of development controls to promote innovation and design excellence" (emphasis added). The SDCP states that alternative (performance based) solutions can be considered where the relevant objectives and performance criteria can be met. The definitions do not contain any such objectives and performance criteria. I do not accept the evidence that this part of the SDCP applies to the definitions. 5. Further, I prefer the evidence of Mr Swan that units are ordinarily characterised as being one of multiple units within a building or buildings. The inclusion of different definitions in the SDCP would typically serve a purpose. It appears evident based on the information before the Court, though I accept with some ambiguity, that one of the purposes served by the two definitions is to delineate between free standing buildings and a building or buildings comprised of multiple dwellings/units. 6. The proposed development contains free standing, self contained buildings for short term holiday accommodation, consistent with the 'tourist cabin' definition. The definitions chapter defines 'group' as meaning two or more tourist cabins. Chapter G15 references tourist cabins in the plural. The SDCP therefore envisages more than one tourist cabin in its controls for 'tourist cabin'. 7. Other forms of uses or ancillary development on site do not derogate from that characterisation of 'tourist cabins' for the purposes of determining the applicable SDCP controls. 8. I find that the proposed development is characterised as incorporating 'tourist cabins' and that the controls related to 'tourist cabins' in the SDCP apply. What is the land area and subsequent density? 1. In finding that the proposed development meets the definition of 'tourist cabins', it is relevant to next consider the applicable 'land area' for the purposes of SDCP acceptable solution A25.1 and performance criteria P25. 2. The amended application's land area is in dispute. The relevant parts of G15 of the SDCP are set out below: "5.3 Tourist Development in Rural Areas This control applies to all land where tourist and visitor accommodation, … are permissible with development consent in the following zones: … RU2 Rural Landscape … The specific objectives are to: i. Ensure the density of development is sustainable and has minimal impact on the environment. ii. Provide tourist development forms that is compatible the rural character of the area. iii. Ensure the impact of development on the amenity of rural areas is maintained and the impact on neighbouring areas is minimised. iv. Ensure that native vegetation and water quality is protected. v. Ensure that multiple forms of tourist development on one property are consistent with the acceptable density standards. … Performance Criteria P24 Sufficient area is available for the development so as to not impact on surrounding land use or amenity of the locality. Acceptable Solution A24.1 A minimum area of two (2) hectares is required for all forms of tourist development in rural areas; or … A24.3 The minimum area must be calculated from land where tourist use is permissible, all other areas must be excluded from density calculations. Performance Criteria P25 Density of tourist cabins and guesthouses should be of a rural nature and be consistent with the surrounding areas. Acceptable Solution " 1. Relevant to the issue is cl 7.21 of the SLEP Development on land in the vicinity of the Western Bypass Corridor which contains the below provisions: 7.21 Development on land in the vicinity of the Western Bypass Corridor (1) The objectives of this clause are as follows— (a) to minimise any visual or acoustic impacts on development proposed in the vicinity of the land to which this clause applies, (b) to ensure that development proposed in the vicinity of that land will not compromise, restrict or otherwise prevent the future use of that land as a road. (2) This clause applies to land identified as "Cl 7.21" on the Clauses Map. (3) Despite any other provision of this Plan, development consent must not be granted for development on land in the vicinity of the land to which this clause applies unless the consent authority has assessed the following— (a) the impact of noise, vibrations and other emissions from any future construction and the ongoing use of that land as a road, (b) if the proposed development is a subdivision of land—whether or not the development would prejudice or otherwise restrict the future construction (including the provision of any public utility infrastructure) and operation of the proposed road. 1. The mapping for cl 7.21 shows the Western Bypass Corridor through the subject site. 2. The proposed development contains 20 tourist cabins. It is not in dispute that this would equate to a total of 38ha required in order to meet the acceptable solution. 3. In dispute is the calculation of 'land area' for the purposes of acceptable solution A25.1. The Council says it is 27.37ha and Links says its 41.84ha. 4. Mr Swan says that the density calculation relies on land that is reserved for the Western Bypass Corridor and that this should be excluded as it is an inappropriate location to place cabins. 5. Mr Swan says that exclusion of that land would permit up to 13 tourist cabins in accordance with A25.1 of the SDCP. He says that the density of the amended application for 20 tourist cabins is excessive having regard to the site. 6. Mr Seton submits that the Western Bypass Corridor should be excluded from the land area calculation. A25.1 of the SDCP specifies a minimum 'land area' and does not refer to a lot or allotment. 7. With consideration of cl 7.21, Mr Seton submits that development for subdivision and tourist cabins on the land shown as the Western Bypass Corridor would prejudice or restrain the Corridor, and therefore that land should be excluded from the land area calculation. 8. Mr Seton submits that the land area is therefore 27.37ha (with reference to the calculations within the planning JER) and is approximately 9.6ha under the acceptable density sought by the SDCP. 9. Links says that the acceptable solution is met as the land area is 41.84ha, consistent with the unregistered subdivision allotment. 10. Regarding density, Mr Bulfin's evidence concentrated on density controls for a tourist resort. Notwithstanding, Mr Bulfin also undertook an analysis of what was described as a 'notional derived density' on the basis of the density control for a 'tourist resort' with consideration of the land area at both 41.84ha and 27.37ha. With consideration of 20 units on the smaller minimum land area of 10ha, Mr Bulfin calculates the notional derived density as one dwelling per 2.092ha. Based on the notional derived density, Mr Bulfin says that 83 dwellings could be achieved on the 41.84ha, or in the alternative land area pressed by Council, 54 dwellings. On this basis, Mr Bulfin says that the amended application meets the acceptable solution. He says they are also consistent with the adjoining new subdivisions which are at or just above 2ha and significantly below the derived density envisaged by the SDCP. 11. In oral evidence, Mr Bulfin accepted that if development for tourist or visitor accommodation buildings were proposed in the Western Bypass Corridor, that it would restrict the future construction of the proposed road. With consideration of cl 7.21, Mr Bulfin accepted that this land was not available for development of this kind. 12. In oral evidence, Mr Bulfin accepted that with consideration of SDCP acceptable solution A25.1, that the development would be approximately 9.5ha under the acceptable solution for tourist cabins if the land area was 27.37ha. Further evidence was given regarding the 'notional derived density', which would be approximately one dwelling per 1.36ha if the land area was 27.37ha. 13. Mr Galasso SC submits that the land that is subject to cl 7.21 has been avoided by the amended application and is a separate matter for consideration. 14. Mr Galasso SC submits that the land marked for the Western Bypass Corridor is private land and zoned RU2 where the proposed development is permissible. Mr Galasso SC submits that there is no evidence of any intention to acquire the land by Council. Consideration 1. The Western Bypass Corridor is shown on the extract below from the architectural plans (Ex A, Tab 1), indicated as a 'regional service corridor' and arcs across the subject site east to west. This is consistent with the mapping for cl 7.21: 1. The above extract also shows a separate subdivision in the north eastern corner after the Western Bypass Corridor. For clarity, that area does not form part of the subject site. 2. The applicable SDCP acceptable solution A25.1 is concerned with the minimum 'land' area. 3. The documentation tendered indicates consideration of the Western Bypass Corridor. Examples include: 1. The Statement of Environmental Effects prepared by Precise Planning dated September 2022 (SEE) (Ex C, Tab 4), which notes the land reservation for a future bypass road and proposed landscaped buffer to screen visual impacts from future construction works and ongoing use; 2. The architectural plans prepared by MyersEllyett (architectural plans) (Ex A, Tab 1); 3. Subdivision plans prepared by Australian Survey Solutions dated 30 March 2020 (subdivision plans) (Ex C Tab 14), which refer to the Western Bypass Corridor being shown on the parent subdivision SF7733; 4. Landscape plans prepared by Lindy Lean dated 9 October 2023 (landscape plans) (Ex E), which show the Western Bypass Corridor land as white. The colour code is the same as neighbouring properties outside of the subject site. 1. I accept Mr Seton's submissions that 'land' does not mean 'lot' or 'allotment'. 2. With consideration of the documentation and operation of SLEP cl 7.21 and associated mapping, it is evident that development for the purposes of subdivision and tourist and visitor accommodation could not be undertaken on the land shown on cl 7.21 mapping. 3. Notwithstanding that the land is currently privately owned and an acquisition authority not yet known, there are known land restrictions by virtue of cl 7.21, the SLEP mapping and indications of the Western Bypass Corridor on the parent subdivision that have flowed into the documentation within this appeal. 4. I therefore accept Mr Seton's submissions and find that the applicable land area should exclude the indicated Western Bypass Corridor area. For the purposes of the SDCP density acceptable solution A25.1, the applicable land area is 27.37 ha, not 41.48 ha. 5. On this basis, the proposed development is approximately 9.6ha deficient in land size (resulting in approximately seven additional cabins above the density provision) and does not meet the acceptable solution. 6. I do not accept the evidence regarding the notional derived density. The controls for a tourist facility and tourist cabins are different. 7. I accept Mr Galasso SC's submissions that the SDCP is novel in its structure and promotes flexibility to meet the relevant objectives and performance criteria, as set out in Chapter 1 Part 11. 8. Further, s 4.15(3A)(b) of the EPA Act requires flexibility to be applied and reasonable alternative solutions to be allowed for those aspects of development that do not meet DCP controls. 9. Chapter G15, Part 3 Context further supplements the stated flexibility by encouraging innovative design and appropriate density by focusing on design criteria rather than numeric development controls. The context section also seeks to ensure the rural integrity of areas are maintained and for tourist development to complement the rural landscape. 10. The performance criteria for A25.1 seeks to achieve a density of tourist cabins that should be rural nature and consistent with the surrounding area. The relevant objectives are similarly phrased with respect to rural character, environmental impacts and density standards. 11. For the reasons I set out below, I find that the proposed density does not meet the performance criteria and relevant objectives, as the proposed development's character is not consistent with the rural nature of the area. Character and density 1. The Council contends that the amended application should be refused on the basis of character and density. Council presses that the proposed development does not conserve the rural character of the locality, does not minimise its visual impacts and exceeds the acceptable solutions for density and floor area. 2. Mr Swan says that the amended application is inconsistent with the RU2 zone objective to maintain the rural landscape character of the land and related objectives in Chapter G15 of the SDCP. In summary, Mr Swan says that the proposed development is not compatible with the rural character of the area for the following reasons: * The proposed development will be highly visible from adjoining properties, in particular from the south; * As per Section 5.1.4, performance criteria P12 and acceptable solution A12.2, the spread of development across the main developable area is contrary to the grouping outcome that the SDCP is seeking to achieve; * The spread of the tourist cabins increases the visual impacts of the development. The spread has not been minimised and will appear as a rural/residential subdivision as opposed to a grouping of small tourist cabins in an appropriate area of the site; * The configuration of the proposed subdivision and cabins is rural residential in nature. The setbacks between the cabins are between approximately 30m – 70m. The subdivision pattern and cabin spread is out of character with the rural zoning and inconsistent with the SDCP for tourist accommodation; * The spread of development equates to approximately 42% of the site (excluding the Western Bypass Corridor); * Excluding the Western Bypass Corridor area, the relevant acceptable solution would permit a maximum of 13 cabins. The proposed 20 is excessive for the site; * 17 out of 20 tourist cabins exceed the acceptable solution of 120m2. In oral evidence, it was accepted that the exceedance was minimal. However the exceedance by the majority of cabins contributes to the spreading issue; * In oral evidence, it was not agreed that the uses permitted within the zone would result in some uses being inconsistent with that objective. Consideration of those uses would require consideration of the scale and degree; * Mr Swan agreed that the character of the area included a primary dwelling and ancillary structures on most lots, be it stables, garage, machinery sheds, etc. 1. Council submits that the rural landscape character of the locality can be described as large expanses of open paddocks and clusters of built forms. 2. Mr Seton submits that the proposed development is spread too widely across the land and consequently, does not respond to or respect the rural landscape character. The length and depth of the development spread does not seek to limit or minimise the impact of the rural character observed. Further, the accuracy of the photo montages at Ex A is questionable. 3. Mr Seton submits that the Calymea Street area referred to by Links could not be seen from the site. 4. Mr Bulfin says that the proposed development has been designed to respond to the environmental constraints of the site and has proposed an alternate grouped development that is compatible with the rural character of the area. Mr Bulfin's evidence is summarised below: * A tourist development would present differently to surrounding development as it is a different type of development, regardless of the built form type or spatial arrangement; * The proposal does not resemble a residential subdivision. The design process considers the spatial arrangement for the overall facility, including a range of factors such as building separation, vegetation, bushfire constrains, outlook and impacts to adjoining dwellings. This would then inform the subdivision; * The spatial arrangement was guided by a desire for large setbacks between units for the amenity of guests and predominant separation between dwellings seen in the local area; * The separation between newer dwellings in the recent Tea Tree Lane subdivision should not be considered as typical of the area as the design has been guided by the cul-de-sac turning head and orientation to the lane. They therefore exhibit a closer building separation than would otherwise be anticipated; * Generally, dwellings for residential purposes are constructed on large lots and are much larger in size than the modest size of the units proposed. The observer will therefore not perceive these as residential; * The proposed development minimises its visual impacts through a generally compliant floor area, single storey form, quality of architecture, minimum 30m setback from boundaries, location of buildings in existing cleared areas and avoidance of higher land on the site. The closest dwelling would be approximately 170m from the nearest unit; * The proposed development is an alternate approach to grouping. The architectural plans show that the building structures only occupy around 4.5ha of the 27ha and have been grouped together. The proposed grouping occupies less constrained areas of the site and minimises environmental and amenity impacts; * In oral evidence, the density with a site area of 27.37ha would be approximately 1.36ha per individual subdivision lot. The newer Tea Tree Lane lots are at or above 2ha; * In oral evidence, the photo montages at Ex A, Tab 1 were accepted on face value but their accuracy could not be confirmed. As stated in the planning JER, the character analysis evidence did not rely on the photo montages. 1. Mr Galasso SC submits that the rural landscape character of the area is not offended by the proposed development. The recent Tea Tree Lane subdivision facing the cul-de-sac to the south and small lot subdivisions to the north west off Calymea Street, Nowra Hill are atypical of a usual rural landscape character and form part of the character consideration in this area. 2. Links submits that the proposed development is grouped and is consistent with the groupings of dwellings and structures to the west, north west and recently to the south. Further, the grouping has been designed to minimise visual impacts and minimise its environmental impacts on sensitive environmental areas present on and around the subject site. 3. With respect to the objectives of the zone, Mr Galasso SC submitted that the test is to have regard to the objectives of the zone. Consideration 1. With the benefit of the site viewing and the evidence, I accept Council's evidence that the character of the local area in the RU2 zone can be described as predominantly comprising grouped buildings and large areas of open space paddocks. This is generally in the form of a dwelling or main building structure with closely situated ancillary structures. There are generally large areas of paddocks or landscaped areas in the local area and surrounding these built forms. 2. At the site viewing, the parties took the Court along Tea Tree Lane and up to the intersection with BTU Road. Sitting higher than the subject site, the sloping topography away from this intersection down to the subject site revealed expansive views of the local area and the subject site. 3. For the reasons I set out below, I find that the amended application is incompatible with the rural character of the local area and presents as a rural residential development in design, which has been exasperated by the proposed density. 4. I accept the evidence of Mr Swan that the proposed development spread spans across most of the developable land (up to the Western Bypass Corridor) in the north-south, with the exception of the southern L shaped handle. I accept that the proposed development spread also spans across the majority of the east-west depth of the land. This is also evident through the architectural plans. 5. Acceptable solution A12.2 of the SDCP seeks for 'development' (which encompasses more than just the cabins/built forms) to be grouped. There is no definition of 'grouped' in the SDCP. I prefer the evidence of Mr Swan that the proposed development is not grouped due to its large setbacks between buildings, approximated between 30m and up to 70m, wide development spread and configuration that physically presents as a residential subdivision. 6. The Plan of Management and conditions of consent would not permit residential use and the operation of the development as residential is not of concern. 7. However, I accept Mr Swan's evidence that the proposed development has a residential appearance, which is prohibited in the zone. I consider that the subdivision layout, fencing around each individual lot and spatial separation have a residential character. 8. Due to the topography, views from the south increase as the land slopes upwards towards BTU Road. This is evident from the newer subdivision/built forms around the Tea Tree Lane cul-de-sac. With the benefit of the site viewing and different vantage points, I find that views of the proposed development, including their roofs, fences and built forms, emphasised by their sprawl and numbers of structures, would present as a residential subdivision that is inconsistent with the local area. 9. The spread is not akin to the groupings of dwellings and ancillary structures to the south (Tea Tree Lane), west and north west. As shown in Ex A, architectural plans AA0.01, AA0.02, AA0.03, AA0.06, AA0.7, and Ex 4, these structures generally comprise dwellings with close ancillary structures and large paddock areas as their surrounds. 10. I accept the evidence that the proposed development is in the alternative, with the majority of built forms primarily spread from each other. 11. With respect to the Calymea Street subdivisions, these are residential subdivisions of a smaller lot size and compressed pattern than the proposed development. No evidence was presented on the timing of the subdivision. I find that Calymea Street is in a different visual catchment and I have placed little weight on this subdivision /built form pattern with consideration of the rural character of the locality. 12. Whilst I acknowledge the positive aspects of the development in avoiding environmentally sensitive areas as well as the proposed architectural design of the buildings, I do not accept that the proposed alternate grouping is reflective or compatible with the rural landscape of the local area and would unreasonably impact on the visual character currently enjoyed in the area. 13. I find that the amended application is not grouped with respect to acceptable solution A12.2 in Part 5.1.4. I also find that the related performance criteria to conserve the rural character of the locality has not been met as set out above. 14. With respect to acceptable solution A25.1 in Part 5.3, the density of cabins above the acceptable solution (approximately an additional 7 cabins) contributes to the spatial arrangement issues, creating more visible lots and visible built forms that are spread across the subject site. Performance criteria P25 sets out that tourist cabins should be of a rural nature and be consistent with the surrounding area. The performance criteria is also not met as set out above, as it is not of a rural nature nor consistent with the area. 15. I note that with respect to the proposed floor area of the cabins minimally exceeding SDCP acceptable solution A1.1, I do not find that this element is of material concern. 16. I have had regard to the relevant objective of the RU2 zone 'To maintain the rural landscape character of the land'. With respect to the SDCP, I find that the proposed development has not demonstrated it meets or has proposed alternate performance based solutions that meet the objectives, performance criteria or acceptable solutions for the below parts of G15 SDCP for the reasons set out above. The SDCP provisions not met are: * Part 4 Objectives, ii. "Conserve the rural character and environmental quality of the local area enjoyed by residents of, and visitors to (sic) Shoalhaven." * 5.1.4 Protection of Amenity, P12 "To conserve the rural character of a locality and the amenity enjoyed by local residents and neighbouring properties is preserved." * 5.1.4 Protection of Amenity, A12.2 "Development is grouped to minimise environmental and amenity impacts." * 5.3 Tourist Development in Rural Areas, Objective ii. "Provide tourist development forms that is (sic) compatible the rural character of the area." * 5.3 Tourist Development in Rural Areas, Objective iii. "Ensure the impact of development on the amenity of rural areas is maintained and the impact on neighbouring areas is minimised." * 5.3 Tourist Development in Rural Areas, Objective v. "Ensure that multiple forms of tourist development on one property are consistent with the acceptable density standards." * 5.3 Tourist Development in Rural Areas, P25 "Density of tourist cabins and guesthouses should be of a rural nature and be consistent with the surrounding areas." * 5.3 Tourist Development in Rural Areas, Acceptable Solution A25.1, the number of tourist cabins exceeds the minimum land area. 1. On this basis, I find that, the amended application does not conserve the character of the local rural area, would visually impact on the area and has not demonstrated an appropriate density for the site. 2. This issue is determinative of the amended application and the proposed development is to be refused. Alternate Land Area 1. Should I be wrong in my consideration of the land area at 27.37ha, I find that the site area at 41.84ha would also not meet the grouping acceptable solution A12.2 and performance criteria P12 within Section 5.1.4 of the SDCP because: * If the Western Bypass Corridor was maintained as rural landscape for the life of the development, the proposed development is still spread over the majority of the site from east-west and over half of the site north-south; * As reasoned above at [102] to [118], I find that the spatial arrangement and physical features of the development with respect to separation between the cabins, fencing and subdivision pattern appears residential in design and is incompatible with the local rural landscape. These aspects would be visible beyond the site, particularly to the south. This would not change with the inclusion of the additional land within the nominated Western Bypass Corridor area; * I note that in this alternative, the density acceptable solution would be met and the provisions of Section 5.3 of the SDCP would not form reasons to not grant consent; * The issue of character and grouping would remain determinative, and the proposed development would be refused. Conclusion 1. I find that the proposed development is incompatible with the rural character of the local area, would create unreasonable visual impacts, proposes an excessive density for the site and has not demonstrated alternative innovative design solutions to meet the objectives and performance criteria of the relevant SDCP controls. 2. My findings in relation to character and density are determinative of the appeal. Accordingly, the remaining contentions do not need to be dealt with and the proposed development is to be refused. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Development application no DA21/2033 for tourist and visitor accommodation with community title subdivision, road works, drainage works and ancillary development at 51 Tea Tree Lane Nowra Hill, as amended, is refused. 3. The exhibits are returned, except for Exhibits 1, 2, A, B and C. S Porter Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2023