Land and Environment Court of New South Wales Grant v Kiama Council [2005] NSWLEC 58 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT J B Grant PARTIES : RESPONDENT Kiama Council FILE NUMBER(S) : 11245 of 2003 CORAM: Moore C Development Consent :- KEY ISSUES: Building certificates . Environmental Planning and Assessment Act 1979 Local Government Act 1993 Environmental Planning and Assessment Model Povisions 1980 LEGISLATION CITED: Illawarra Regional Environmental Plan No 1 Kiama Local Environmental Plan 1996 . Super Studio v Waverley Council [2004] NSWLEC 91; CASES CITED: Williams v Blue Mountains City Council [2001] NSWLEC 73; . DATES OF HEARING: 3 August 2004, 6 June 2005 DATE OF JUDGMENT: 07/04/2005 EX TEMPORE JUDGMENT DATE : 02/18/2005 APPLICANT Ms L Bryne, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Thurlow Fisher Solicitors RESPONDENT Mr G Moggach, solicitor Kearns and Garside JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 4 July 2005 03/11245 & 04/11655 J B Grant v Kiama Council The consequences of the Court's decision in this appeal will be Orders granting development consent (subject to detailed conditions) and the issuing, by the council, of a number of building certificates. The conditions are not reproduced as part of this decision. The terms of the building certificates will be prepared by the council in light of this decision. The terms of the conditions and the building certificates will be available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 Commissioner: These proceedings involve two Class 1 appeals concerning a property at Broughton. The first of them is an appeal against a refusal of a development application by Kiama Council (the council) and the second is an appeal against refusals by the council for building certificates for a number of structures already erected without approval. Travelling with these two files, although not part of the present proceedings, are proceedings commenced by the council in Class 4 of the Court's jurisdiction seeking declarations and orders relating to various unapproved works and structures already erected by the applicant and which works and structures are, in various fashions, encompassed by these Class 1 proceedings. 2 The property to which all of these proceedings relate is known as 25 Princes Highway, Broughton and is Lot 11 DP 607155 (the site). 3 The site is situated opposite intersection of Foxground Road and the Princes Highway, south of Kiama. The site slopes down, generally, from the north to the south. 4 The site has an area of ~30 hectares and comprises cleared pastureland with some structures erected thereon pursuant to an approval granted in 1985 for a small-scale tourist facility. The significant elements of the 1985 consent which have been carried out, although not all according to the plans approved in 1985, are a planted maze and a car park with adjacent kiosk building. 5 The applicant has, in addition, carried out a variety of earthworks and erected a number of structures or other elements (however technically characterised for purposes of legal interpretation) which have not been approved. These comprise: - trampoline pits; - an archery range excavated into the slope; - a number of ponds for canoe rides which ponds have been created by damming the water course which runs across the site; - a mini-golf course; - a picnic gazebo; and - an elevated children's play structure described as a fort. 6 In essence, the two Class 1 proceedings: - seek to regularize the existing structures or other elements (however technically characterised) – whether by additional work to render them capable of being given a building certificate or otherwise; - seek approval for the use of each of them for the purpose designed; - seek a consent to add other attractions such as a giant chess board and donkey rides; - seek a consent to construct a proper access to the facility from the Princes Highway; and - seek a consent to carry out landscaping and construct effluent treatment works. 7 The total outcome which would result from the present process, if all elements were approved in some fashion, would be the ability for the applicant to operate a tourist facility encompassing all these various activities. 8 Such approval would also necessitate the construction of road works on the Princes Highway to provide a safe entrance to the proposed facility. The design of such entrance treatment is agreed by the applicant, the council and the Roads and Traffic Authority (the RTA). However, as part of the merit assessment of the overall application, the council raises the issue of the removal of what it considers to be a significant tree in the road reserve adjacent to the proposed reconstructed entrance. Planning controls 9 The relevant planning instruments are the Illawarra Regional Environmental Plan No 1 (the REP) and the Kiama Local Environment Plan 1996 (the LEP). 10 Cl 122 Recreation and Tourism of the REP reads: Development of recreation and tourism facilities which can be demonstrated will result in a net inflow of money to the region and which will be environmentally acceptable should be encouraged. 11 The general objectives of the LEP are contained in cl 4. The relevant general objectives for this appeal are contained in cl 4(2) and are: (j) To ensure that new developments are well designed and complement the character of the surrounding land and the Council's area, and (s) To ensure the preservation of the landscape and special scenic qualities of the Council's area, 12 The zone objectives and land use table are contained in cl 9 of the LEP and provide, relevantly: (3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 13 The site is located in the 1 (a) Rural "A" Zone. Amongst the uses prohibited in the 1 (a) Rural "A" zone are amusement parks. Cl 6 of the LEP defines an amusement park as: amusement park means a commercially run ground where amusements and mechanical entertainments such as merry-go-rounds and the like are permanently situated. 14 As the activities proposed by the applicant do not fall within the range of activities described by this definition, the proposal is not prohibited within the zone. 15 The relevant zone objectives for these proceedings are: (e) to protect the landscape quality of the rural area, and (f) to cater for small domestically-based enterprises that do not adversely affect the environment or the amenity of the neighbourhood and its residents The issues 16 Although the council filed a formal Statement of Issues (which was subsequently amended), the matters which are put as being determinative are: - The council's view that the proposal, in its visual impact, can only be rendered acceptable if the agreed landscaping plan succeeds and is maintained and that, given the difficulties which the council considers are involved in maintaining the landscaping, no confidence can be held that the landscaping will succeed in its objectives; - The council's view that the applicant's proposed enterprise is not economically viable and, as a consequence, will inevitably fail thus leaving the structures of a failed enterprise in rural landscape which structures would be alien to that rural landscape; - The council's view that the proposed development is not consistent with the planning controls for the zone – in effect, whether or not a tourist facility of the nature proposed is appropriate at the site having regard to the objectives of the zone within which it is located; and - The concerns raised by the objectors to the proposal being whether or not there were any unacceptable impacts on neighbouring properties if the proposal were to be approved. Landscaping 17 Mr Moggach, solicitor for the council, submitted to me that, with respect to the landscaping, I could not be satisfied that the applicant would appropriately maintain the landscaping or that the landscaping would establish itself, sufficiently, under an appropriate maintenance region, to ensure that the screening required was, in fact, achieved over time. 18 He submitted to me that a logical extension of the planning principles set out by Roseth SC in Super Studio v Waverley Council [2004] NSWLEC 91 is that landscaping cannot be relied upon for more general propositions of guarding against overlooking when the overlooking sought to be ameliorated is of an aesthetic rather than a residential privacy nature. 19 I reject this proposition. 20 It is clear from Roseth SC's decision that landscaping for the protection of residential privacy and amenity in closely settled areas is what was being dealt with in that case. 21 The present instance, I am dealing with a rural landscape where no issues of immediate residential privacy are involved, but, however, broader matters of landscaping aesthetics are involved. There is no logical link between the two and Super Studio does not provide an analogy to extend the narrow principle there espoused to the breadth contended for by Mr Moggach. 22 It is long settled that the Court is obliged to assume that an applicant who is granted a consent will abide by conditions attaching to that consent. 23 In the present instance, it is conceded by the council that the landscaping is adequate if it is effectively maintained. Whilst the council quite legitimately points to the difficulties that would be occasioned in maintaining the landscaping, nonetheless the applicant is entitled to the presumption that he will, in fact, maintain that landscaping as required. Economic viability 24 With respect to the question of economic viability of the enterprise, the applicant gave evidence that it was his intention to reside at the property and to conduct the proposed tourism enterprise as an owner/operator with the activity being undertaken with the assistance of members of his family. If the enterprise were as successful as he hoped, he envisaged that he might hire additional non-family assistance at some time in the future. 25 He indicated that he proposed to use income from property investments in Sydney to support him during the establishment phases of a proposed enterprise. 26 During the course of the proceedings and, earlier, in discussions with the council, varying views have been proffered of the likely level of activity and resultant viability or otherwise of the enterprise. 27 I am satisfied that, in the context of matters which I can appropriately have regard to in determining this appeal, matters of economic viability are not generally matters which can properly be considered by me. 28 It is my assessment that, in the context of the planning issues with which I am obliged to deal, the sole matter of relevance is the applicant's intention, stated in his evidence and not otherwise contradicted, that he intends to reside at the site and operate the business himself. That stated intention is a matter of particular relevance to my consideration of the planning controls relating to small domestically-based enterprises. This is discussed in further detail when those planning matters are dealt with later in these reasons for decision. 29 On the broader issue, however, the acceptability or otherwise of an enterprise or activity is not determined by its financial viability. 30 If it is not viable (and it fails), leaving unacceptable and dilapidated structures on site, it may well be that, at some future time, the council may need to use its other powers under either the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993 to address those matters. However, given the applicant's stated intention to operate the business himself whilst residing on the site, which, as discussed later, is consistent with the zone objectives, its viability or otherwise is not a matter of concern to me in these proceedings. Matters arising from the controls 31 In a separate application made to the council, not the subject of these proceedings, the applicant has sought and being given approval for a designated building footprint upon the site where a dwelling might be erected – there being no dwelling presently erected on the site. The erection and future occupation of such a dwelling are of some importance when considering how the application should be regarded in the context of the land use table for permitted uses within the zone. 32 Although Ms Byrne, counsel for the applicant, sought to invoke the provisions of cl 122 of the REP in support of the applicant's position, I do not consider that the provisions of the LEP do any more or less than set the local circumstances derived from the REP and against which proposed recreation and tourism facilities which can be tested as to their environmentally acceptability. 33 It is the LEP which sets the detailed relevant zone objectives against which the environmentally acceptability of this proposal is to be tested. These zone objectives are not inconsistent with the provisions of cl 122 of the REP. They also support the two relevant general objectives of the LEP referable to the present application. 34 As earlier noted, the relevant zone objectives are: (e) to protect the landscape quality of the rural area, and (f) to cater for small domestically-based enterprises that do not adversely affect the environment or the amenity of the neighbourhood and its residents 35 Evidence for the council was given on these matters by Ms T Smyth, a senior planner employed by the council. 36 The first of the relevant objectives, it is properly conceded by the council, will be satisfied if the landscaping plan proposed by the applicant is successful. This has been dealt with separately above and requires no further discussion in this context of planning controls. 37 The terms of objective (f) pose separate tests which are required to be satisfied for enterprises such as that proposed by the applicant. Such enterprises must satisfy each of the following tests: - it must be small; - it must be domestically based; - it must have no adverse affectation on the environment; - it must have no adverse affectation on the amenity of the neighbourhood, generally; and - it must have no adverse affectation on the residents of the neighbourhood 38 In consideration of the definitions contained in cl 6 of the LEP and those of the Environmental Planning and Assessment Model Provisions 1980 (the model provisions), which are adopted, with limited exceptions, by cl 5 of the LEP. The concept domestically-based enterprise is not, in itself, defined by the LEP or by the model provisions. 39 A domestically-based enterprise is, in my view, clearly something which is different from and broader than the concept of a home business which is quite narrowly defined in cl 6 of the LEP. 40 I understood that Ms Smyth conceded that, if the operation of the proposed facility did not commence until after the applicant had built a dwelling within the now approved building footprint, and the applicant resided there whilst operating the proposed facility, such operation would be consistent with the facility being a domestically-based enterprise. 41 I satisfied that the activities proposed by the applicant constitutes a domestically based enterprise provided that the enterprise does not commence its expanded activities until after the dwelling is constructed and that the conditions for operation of the enterprise require that the consent only remains valid whilst the person conducting the enterprise is also resident on the site. 42 With respect to the effect on the environment, I am satisfied that the indication by the Department of Infrastructure Planning and Natural Resources that no conditions of concurrence are required for the watercourse activities coupled with the concessions which the council has made about the landscaping (if effectively implemented) mean that there is no general adverse effect on the environment. 43 I have, below, set out my conclusions about the amenity of the neighbourhood, generally, and of the residents of it and concluded that there is no adverse effect which is not capable of being dealt with by of condition of consent. 44 There remains, therefore, solely the consideration of the question of whether or not this enterprise can be regarded as being small as required by objective (f) of the objectives for the zone. 45 The relevant element of the dictionary definition of the adjectival use of small is of little assistance. It reads: Of limited size; of comparatively restricted dimensions; not large in comparison with other things, esp. of the same kind. 46 It is in this context that I can have regard to the economic expectations for the enterprise held by the applicant. 47 The applicant provided a letter dated 31 May 2005 which he adopted in his oral evidence. The first paragraph of the letter reads: The maze when first opened will not be profitable. In the beginning only a few families will turn up on the weekend. It will take a quite a while until word is around that the maze is great value for money. Over a period of time it will gradually increase till 75 families attended per day on weekends. 48 The letter continues to note that the applicant intends to operate, during at least the initial phase, reliant on his family to assist in and that they will be residing on the site seeking to be on a self sufficient basis. 49 The letter continues to say: On opening the maze we will not be engaging expensive TV and radio advertising. We will be contacting local & state tourist boards and associations. We will also print & distribute brochures to local motels, caravan parks & bed & breakfast establishments. Signs (which will conform to council requirements) will be erected. 50 Nothing contained in any of the other evidence suggests that the operation would be carried on at any more extensive than a scale than this. 51 Indeed, a major concern to council is that, even if the applicant's expectations are realised, the operation will not be viable. Paradoxically, in this context, the council's concerns appear to be that the operation will be too small rather than too large. 52 I satisfied that on the applicant's description of his aspirations for the operation (together with the obvious limitations which will arise from the size of the facility itself and the parking areas serving it) that it would be entirely appropriate to characterise the enterprise as small. 53 As a consequence, the proposal satisfies all five elements in objective (f) of the zone objectives. The tree to be removed for construction of the entrance 54 Although it will be necessary, as part of the construction of the entrance, that a tree of some significant size which is in the road reserve will need to be removed, I am satisfied that its removal is not such a significant adverse impact as to warrant refusal of the application. I am satisfied that the public safety issues that are inherent in the location and design of the proposed entrance more than offset the impact of the removal of this tree. Public submissions 55 The council received a number of letters of objection. Most of these related to general concerns about the appropriateness of the development in the context of the zone objectives. 56 In addition, issues were also raised by a number of correspondents concerning the safety of the traffic arrangements which would be necessary for vehicles entering or exiting a site. 57 These general zoning concerns were taken into account in my consideration of that issue whilst those relating to traffic safety have been resolved by the agreement between the applicant, the council and the RTA concerning the entrance design. 58 However, two matters of specific opposition were raised. These concerns were expressed by the residents of the neighbouring property to the north and east which is located on the Princes Highway with its house overlooking the site and by the proprietors of a property to the west of the Princes Highway and to the north of the site which property is accessed from Foxground Road. 59 Their first concern related to noise disturbance caused by the activities proposed on the site and the second related to the generation of litter from activities on the site. 60 Specific to the issue of noise from activities of those using the presently approved and proposed additional attractions on the site, I accept that there may well be a degree of noise transmission from those activities on the site to the neighbours to the north east. 61 However, such transmission of noise will be restricted as a consequence of two of the conditions proposed by the council and accepted by the applicant. 62 The first of these is the condition restricting the hours of operation of the facility. In this regard, I note that I indicated to the parties that this condition should be amended so that it did not merely refer to the hours as proposed but that Condition 60 should require that the last vehicle (other than vehicles of the applicant or his staff) should leave the premises prior to the nominated concluding hour and that no vehicles (other than vehicles of the applicant or his staff) should be permitted into the site prior to the hour nominated as the commencing hour. 63 This is to be accompanied by the requirement in proposed Condition 62 that: No public address systems shall be used within the site. No amplification of music or sound shall take place at any time. 64 I am satisfied that the combination of these two conditions, with the additional restrictions I require in Condition 60, will provide reasonable and appropriate protection against unacceptable levels of noise transmission from the site. 65 I reach this conclusion not merely because of the restrictions contained in the conditions but also because it must be borne in mind that the applicant has, continuing on foot, his 1985 consent which permits the operation of a low-level tourist facility at the site. 66 That consent necessarily imports approval for activities to take place on the site which are likely to cause some noise being generated by those enjoying themselves by using the already approved attractions. Although additional attractions are to be added as a consequence of this approval, the activities, themselves, are not inherently noisy. 67 During the course of the inspection of the property to the north east of the site, I was shown a used archery target which had blown from the site to the neighbouring property. The residents of this property expressed their concern that, because of the prevailing winds, they would be exposed to ongoing litter impacts if the proposal were to be approved. 68 I accept that there is some risk of this occurring. 69 The council's proposed conditions of consent require designation and design of a garbage storage area but do not require any development of a waste control plan for the ongoing operations of site. 70 Under the circumstances, I do not consider that it would the unreasonable to require the applicant to provide details to the council of the proposed location of litter bins on the site; the method of and timing for collection of litter from those bins and what form of litter patrolling is proposed for the staff as part of the operation of the site. 71 A condition requiring preparation of such a litter management plan, to the satisfaction of the council, would, in my view, be a reasonable response to the concerns of the neighbours. Refusal of the application would not warranted on this ground. 72 Finally, concerning the public submissions, I record that the neighbour immediately to the south east of the site expressed his support for the proposal. This neighbour has a commercial arrangement with the applicant by which that neighbour's cattle are agisted on the applicant's property and, in those circumstances, I consider it inappropriate to take this support for the proposal into account. The presently constructed unapproved elements of the proposal 73 With respect to the matters of detail, there is agreement between the parties as to what position should apply to the various elements presently on the site in the event of me finding, as I have found, that the proposal does not warrant refusal. 74 These positions are: - With respect to the gazebo, a building certificate should be given for the past works but only after the additional works, which are contemplated to be carried out pursuant to a development consent have, in fact, been carried out; - A similar position applies to the mini golf course; - With respect to the canoe ponds, it is agreed that a consent should be granted for the remedial works necessary to make them appropriate to be used but, in light of the decision of Sheahan J in Williams v Blue Mountains City Council [2001] NSWLEC 73, it is not appropriate that I require the council to issue a building certificate for the works already undertaken; - The same position applies to the car park as applies to be canoe ponds; - With respect to the children's play fort, it is agreed that the structural evidence discloses that facility should be demolished and the conditions of consent for the future activities need to require that that occur; and - With respect to the trampoline pits, they are to be given a building certificate for them to be used subject to the requirement that new trampolines with appropriate safety padding will be installed prior to any use of the pits commencing. 75 With respect to effluent disposal; landscaping and the entrance construction at the highway, there is no dispute as to the scope or technical adequacy of what is proposed. As a consequence, development consent subject to conditions will be granted for those works to be carried out. 76 With respect to the archery range, the only material that is in evidence concerning matters of safety behind and above the area where the archery targets would be located is material from the sport's governing body in Australia which does not deal with behind target safety issues. 77 As a consequence, I am not prepared, on the material presently before me, to permit that area, for reasons of public safety, to be used for archery. The parties will need to develop an appropriate condition prohibiting the use of this area for such purposes. 78 This determination is not on the merits of archery per se and therefore does not preclude the applicant from lodging some further development application for an archery range (supported by appropriate material setting out an acceptable safety regime, if that be possible). Conclusion 79 As a consequence of what is set out above, I have concluded that the appeals should be upheld to the effect that the applicant should be permitted to operate the facility he seeks to establish at the site but that this operation should not commence until a residence has been constructed taking advantage of the consent for a building footprint separately granted by the council. The consent should be constrained by the requirement that it is only valid whilst the operator of the facility resides in this dwelling. 80 My conclusion is set out in these terms as the way the proceedings have been commenced and have subsequently unfolded has not left me with a clearly defined path to the final orders necessary to give effect to my conclusions 81 As a consequence, formal orders and associated conditions will need to be settled by the parties to give effect to the findings I have made (reflecting the position agreed to by the parties) concerning the individual elements of the proposal and the additional or remedial works required for a number of the structures or other elements (however technically characterised) which are presently at the site. 82 Formal development consent conditions will also be required to be settled for the other entirely new works being the landscaping, effluent disposal and entrance works to the Princes Highway. Costs 83 As both parties indicated that they wished to address me on costs and there was not time for them to do so during the substantive hearing, the process set out below will permit that to be dealt with (if required by either party after consideration of this decision). Finalisation of the proceedings 84 In light of my conclusions and the indication by the parties that each might wish to be heard on costs, I give the following directions: 1. The parties are to settle the form of the orders and conditions in each of the Class 1 proceedings as necessary to give effect to this decision; 2. The matter is set down for callover before the Registrar on 10 August 2005; 3. Liberty to restore before me at 9am on two days notice for the arguing of costs or settlement of orders and conditions (if the parties are not able to agree on these); and 4. If the parties are able to agree: * on orders and conditions and these are filed electronically in conformity with Practice Direction 2 of 2005; and * that they do not require a hearing on costs, I will issue orders in Chambers and vacate the callover before the Registrar. Tim Moore Commissioner of the Court 12/10/2005 - Correct file number - Paragraph(s) Cover sheet and judgment heading 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.