> Land and Environment Court of New South Wales CITATION : Christopher George Lonergan t/a East Coast Planning Consultants v Byron Shire Council [2003] NSWLEC 298 APPLICANT: Christopher George Lonegran t/a East Coast Planning Consultants PARTIES : RESPONDENT: Byron Shire Council . FILE NUMBER(S) : 10588 and 9 of 2003 CORAM: Moore C KEY ISSUES: Contaminated Land - Development Application - Planning Instruments :- What constitutes "low scale" development Intensification of use Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Byron Local Environment Plan 1988 . CASES CITED: Manzie v Willoughby City Council 1996 LEC 26; . DATES OF HEARING: 20, 21 and 22 October 2003 EX TEMPORE JUDGMENT DATE : 10/22/2003 APPLICANT: Mr M Wright, barrister SOLICITORS: Wroth Wall LEGAL REPRESENTATIVES: RESPONDENT: Mr P Clay, barrister SOLICITORS: Wilshire Webb JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10588/9 of 2003 Moore C 22 October 2003 Christopher George Lonergan t/a East Coast Planning Consultants Applicant v Byron Shire Council Respondent Judgment 1 There are two matters before the Court for determination, the first is matter No. 10588 of 2003 (which is a s96 application concerning parking conditions at the subject site) and the second is matter No.10589 of 2003 (which is an appeal concerning a development application for use of an existing refreshment room serving a rural tourist facility by seeking to make the use of that refreshment room available to non-resident users of the facility). Both matters are applications relating to Lot 3 DP 625224 at Newes Road, Coorabell. 2 Presently erected on the site is a rural tourist facility that has been constructed pursuant to consent given in response to Development Application 950428. The facility comprises 12 residential cabins, a manager's residence and a large restaurant/refreshment room structure with associated outdoor areas available for entertainment or use by guests. 3 The site was inspected by me in company with the parties. This inspection comprised not merely an examination of the buildings erected on the site but an extensive walk around the premises including the large area by the side of Wilsons Creek which forms part of the attractive features of the site. It was obvious, in the course of the view, that the director of the company that owns and operates the site (and which has instructed the applicant to bring these proceedings) has considerable pride in the facilities and in the operation and environmental rehabilitation works which the company has undertaken on the site. 4 Indeed, the report of the council's original assessing consultants reflect the present high standard of the development on the site (at p 6 of 19) by noting that the current development is of high standard and that the general layout of the site is attractive and landscaping well established. 5 It is the conclusion of that portion of the report that additional development in the manner proposed should result in few adverse social and economic impacts in the locality. In general, the development appears to be well managed and blends into the surrounding locality with a minimum disruption to the amenity of surrounding residents. 6 Mr Dawson, a town planner employed by the council, in his evidence, acknowledged the high standard of the physical facilities and the works being undertaken on the site. I also note that as a condition of the original consent there was a requirement that the operating company plant 25,000 trees. The facilities were undoubtedly of an impressive standard and that is a matter to which I will return later. 7 I turn first to deal with matter No. 10588 of 2003. 8 The application seeks to amend two existing conditions - they being conditions which constrain the use of the cabins to an extent by requiring that parking for resident guests be at a parking area somewhat removed from the cabins and that any access by guests to the cabins would either be on foot or by some form of formal or informal internal transportation system that would be required to be operated by the management. 9 In this regard, it is proposed to vary conditions B3 and B4 of the original consent to alter those to permit parking of resident guest vehicles in close proximity to the cabin being occupied by those guests. It is not intended that there would be any intensification of the number of vehicles that would visit the site as a consequence of this. However, it was agreed between the expert witnesses dealing with civil engineering issues that there would be some works required to upgrade the existing parking spaces if this appeal were to be upheld. 10 The terms of those upgradings have generally been agreed and are not in contention in the present proceedings. 11 Mr Dawson indicated that he raised no planning objections to this application. 12 There were however, two objectors who wished to be heard on this and other issues that are presently before the Court, Mr T Hamill and Mr F Bucks. Both are residents of properties that they own on Newes Road in the vicinity of the subject site. 13 Mr Hamill's objections to the proposed alterations to the resident guest parking facilities were on two bases. First, he considered that the parking of the vehicles and their movement closer to the banks of the creek would increase the possibility or potential for contamination of the creek from those vehicles and secondly, he was of the opinion that internal transport should be by way of a shuttle bus operation provided by the proprietor of the facility. 14 Mr Bucks concerns were four, one of which coincides with one of Mr Hamill's concerns. They were, firstly, that the lights, noise and additional exhaust emissions would interfere with the operation of the wildlife corridor which he posited operated through the site. Secondly, he concurred with Mr Hamill's concerns of the possibility of contamination entering Wilsons Creek from vehicles. Thirdly, he considered that the proposed works which would be required to facilitate such parking to an appropriate standard if consent were granted might disturb contaminants contained in the soil arising from the prior operation of the premises as an intensive piggery. Finally, he considered that more activity and, as a consequence, more "busyness" would arise and that this was inappropriate. 15 I turn to consider the various objectors' issues and the evidence that they gave with respect to them. 16 With respect to the possible impact of lights, noise and exhaust on wildlife raised by Mr Bucks, it was his evidence (and information obtained on the view) that there was an increase in wildlife on the site as a consequence of the rehabilitation and re-afforestation works undertaken of the former piggery activities by the present proprietors of the site. It was Mr Bucks' opinion that there would be less likelihood for conflicts if movement were by shuttle bus. However, it is my assessment, from the matters that were considered on the view, that the following factual conclusions should be drawn in this regard. First, there would still be pedestrian activity to and from the restaurant area no matter where vehicles were parked on the site - that is either at the present car park or adjacent to the residential cabins. The use of golf buggies for servicing of the residential facilities was observed on the site and, if there were movements around the site by a shuttle bus operated by the proprietor, those two sets of movement types would cause light, noise and exhaust impacts on wildlife. 17 I accept that there is probably likely to be some small increase in these impacts as a consequence of any determination to uphold this appeal and grant consent for parking adjacent to the cabins. It would, in my view, however, be somewhat offset by the reduction in movements by the proprietor's vehicle if there were to be an internal shuttle bus service required as an alternative. 18 I am not satisfied that the objectors have made out any sufficient basis on this issue to refuse this application. 19 Secondly, the issue arises of the possible contamination of the creek. With respect to the issue of contaminants close to the creek, it was obvious from the view that the areas proposed for resident guest parking were significantly separated from the creek by spaces of up to 100 m in distance. That those spaces, although sloping to a greater or lesser extent, also had extensive plantings of vegetation in rows running across them and extensive grass on them that would act as filter strips if there were any escape of contaminants across them. In any event, from what was able to be gleaned from the discussion of the experts, there would also be significant landscaping required around the parking areas which would also act as informal bunding or filtering areas. 20 As a finding of fact, I find that there is no significant probability of the proposed altered parking arrangements acting as a threat to the water quality of the creek and that therefore there is no basis for refusal on that ground. 21 Thirdly, I turn to the issue of the possibility of there being contaminated sediments that might be disturbed as a result of the earthworks necessary to upgrade the present cabin adjacent parking or turning areas. First, I note that, from the view of the site, the cabins and the associated parking areas are significantly removed from the area where there were prior piggery sheds or storage areas. Second, the possibility of contaminants in the soil was not of concern to the expert witnesses. 22 Thirdly, the objector who raised this issue, Mr Bucks, was unable to point, in this regard, to any specific area that he considered might be so contaminated. 23 I am therefore satisfied that there is no basis on this issue to refuse this application. 24 The issue of "busyness" or intensification of activity on the site as a consequence of changes in parking arrangements call up the issues that arise and need to be discussed in greater detail later in this decision arising out of cl 34(3)(f) of the Byron Local Environment Plan 1988. That provision relevantly provides that "the council", in this case the Court, "may grant consent for the development for the purposes of rural tourist facilities on land within rural zones only where", in this case, the Court, "is satisfied that the proposed development will be low scale in nature, compatible with the rural environment and of minimal environmental impact." 25 That provision sets three tests against which this application should be tested. In this regard I note that the alteration to the parking will not alter the number of vehicles likely to access or move round the site. Secondly, it constitutes an internal intensification confined to limited vehicle movements that would be beyond the existing parking area and is unlikely to significantly intensify the number of movements involved - merely to extend the length of those movements by several hundred metres. Thirdly, there is no evidence that this intensification would be incompatible with any of the elements that are set out in 34(3)(f) and that there are no other impacts that have been identified in this regard. 26 Therefore I am satisfied that there is no basis on the grounds of intensification or increased "busyness" of the site to refuse the application for park resident guest parking adjacent to the cabins. 27 I have considered what would be the appropriate orders to be entered in regard to this appeal. The first order obviously would be that the appeal is upheld. I then turn to the nature of the conditions in the application (and I am prepared to hear the parties on this issue if necessary). It would seem to me that the application as presently framed (which is to alter conditions B3 and B4) is unexceptional as to the terms of the alteration to condition B3. 28 I would prefer - given that the experts have conferred as to the nature of the works proposed - that the second order that I make with respect to condition B4 ought to be that works be undertaken in accordance with a Schedule of Conditions and Agreed Plans between the party to give effect to that. I propose that I give the parties 14 days or three weeks within which to reach agreement and file such documents with the Court and I would then deal with the Orders in Chambers. (Discussion of process for Orders in matter No. 10588 of 2003) 29 I now turn to matter No. 10589 of 2003. The planning framework within which this needs to be considered are the general provisions that arise pursuant to s 79C of the Environmental Planning and Assessment Act 1979 and the specific provisions invoked by cl 34(3)(f) of the Byron Local Environment Plan. 30 Although I did not do so in the earlier portion of these reasons, I note for the purposes of this matter that the site is presently zoned 1(a) General Rural Zone and that the operation of a refreshment room is permissible with consent and that the dictionary to the Local Environmental Plan includes a definition of a refreshment room to which it is not presently necessary to refer and a definition of rural tourist facility which is given the meaning of "An establishment providing for low scale holiday accommodation or used for recreation or educational purposes and may consist of a bed and breakfast establishment, boat landing facilities, environmental facilities, holiday cabins, horse riding facilities, a picnic ground, a primitive camping ground or a refreshment room or the like." As I indicated earlier there are three tests that arise out of the provisions of cl 34(3)(f) of the Local Environmental Plan. 31 The expert witnesses for the council and for the applicant agree on the extent to which engineering issues are required to be addressed pursuant to that provision or pursuant to s 79C. All of such issues whether on or off the site (but associated with the application) can be satisfactorily addressed by a properly conditioned approval. There are however, a number of engineering issues raised by the objectors to which I will now turn. 32 I note that, during the course of the hearing, a matter arose concerning the construction of the existing road not being presently entirely on the legal road reserve. I ruled, at that time, that I was satisfied that there was available practical legal access to the site if I were minded to grant the application for public use of the restaurant and the fact that the road was partially presently constructed over property owned by Mr Bucks was not an inhibition to me dealing with the matter. 33 With respect to the road, Mr Bucks also raised two engineering issues. First, he raised the issue of cambering and corrugations at a particular bend. It was the evidence of Mr McElroy, an engineer called on behalf of the council, that there were engineering works proposed to be undertaken at the point identified by Mr Bucks and that, if engineering requirements demonstrated that Mr Buck's further concerns were justified, they were capable of being dealt with as part of the construction plans for that section of the road. 34 Mr Bucks and Mr Hamill jointly put the proposition to the Court that they considered that the first 150 m of Newes Road from its joinder to the main road should be widened to a 6 m pavement. Mr McElroy gave evidence in this regard and indicated that he considered that this was desirable but not essential. I accept that the experts have agreed that that is the position and that there is therefore no basis for me to require those additional works to be undertaken. 35 I am satisfied, therefore, that on issues relating to engineering matters associated with the road there is no basis upon which the application should be refused. 36 With respect to effluent disposal from the activities, there was agreement between Mr Lucina and Dr Martins that appropriate conditions could be applied to the treatment facilities on site (including appropriate degrees of amplification) as to the size and operation of the treatment facilities and that such amplification would result in facilities that were appropriately sized and environmentally acceptable for the site. 37 The objectors however raised a number of concerns relating to effluent. Mr Hamill raised the issues of the maximum theoretical future capacity of the facility for public use (as he perceived it) and in this regard drew attention to what he understood to be the number of toilet facilities for males and females on the site. As he was informed during the course of the proceedings, this is not a matter for relevant consideration in this appeal, what is appropriate for consideration is that the applicant has applied for maximum operational use of 80 non-resident guests and is entitled to the presumption that, if granted, the premises would lawfully operate to that standard of operational use. 38 Mr Bucks raised the issues of a capacity of the proposed system, whether it would cause contamination of Wilsons Creek and consequently of his swimming hole area if it failed or was overloaded. And finally he raised the issue of whether the absorptive capacity of the land might have been inhibited as a consequence of the past piggery use. These were not matters of concern to the experts and the experts agree that the system as proposed would be capable of dealing with all of these issues, that being a necessary implication of the joint written report signed by them as to what would be the appropriate design parameters. 39 There is no technical evidence in support of Mr Bucks' concerns. I am therefore satisfied that there would be no basis to reject the application on those grounds. 40 The area that is of concern to me is the area of the construction of and inhibition on the application arising out of cl 34(3)(f) of the LEP. 41 I think I should say at this stage, in fairness to the applicant, that I would not have any inhibitions in granting the application on any grounds apart from cl 34(3) if it was solely being tested under s 79C of the Environmental Planning and Assessment Act 1979 - but it is not. The constraints that are contained in cl 34(3)(f), in my view, are more restrictive than the general expressions that are contained in or otherwise arising out of construction of that section of the Act. 42 The essential element that arose in disputation between Mr Dawson, on one hand, and Mr Lonergan, the town planner acting as the applicant in these proceedings on behalf of the owner, expressly (and the council's earlier consultants, perhaps by implication), on the other, is whether or not, in considering in the three tests that arise from cl 34(3)(f), intensification of use as opposed to merely built form is required to be taken into account. It was Mr Lonergan's express evidence when this proposition was put to him by the Court that that clause should be construed, to give it purposive meaning, as if the words read, for the purpose of the built form of the proposed development will be low scale in nature … . 43 However, Mr Lonergan conceded, with respect to road and effluent issues, that it was appropriate to have regard to intensity of use matters and he indicated that it was his understanding that even if the facility were to operate on a seven days a week, 52 weeks a year basis at the level sought that it would still be capable of being in compliance for the impact on the road and for the effluent disposal system and that they were appropriate matters that arose to be tested out of the second and third limbs of 34(3)(f). 44 The evidence of Mr Dawson was that the low scale nature required by 34(3)(f) not only related to the architectural built form of the development but to the intensity of its use. He provided a number of comparisons that he considered were relevant to this for other facilities located elsewhere in Byron Shire. I do not consider that I need to turn to the issue of comparative numbers for purposes of intensity or otherwise. I am satisfied that it is appropriate to have regard to, but not be bound by, the definition of low scale that is contained in the Byron Rural Settlement Strategy 1998, the definition being set out on p 68 of that and quoted by Mr Dawson in his evidence. I do not propose to read the entirety of that definition into the transcript as it is, in my view, far too prescriptive for the purposes of the present proceedings. However, it does provide some guidance as to whether or not intensity is appropriate to be considered when having regard to the scale of a development and whether it is, as 34(3)(f) requires, low scale in nature. 45 Therefore, I turn to consider what might be made of the intensity or comparative intensity of the approval applied for compared to the present scale of the approved development and whether that constitutes low scale in the present context. 46 What is sought is approval for use on an unrestricted time basis - that is seven days per week, 52 weeks per year - of an additional 80 non-resident guests to be entitled to use the refreshment room facilities. It is the evidence of Mr Lonergan that it is was likely that this would be used not merely for casual dining purposes but for purposes such as weddings or other functions. 47 At present there are 12 resident cabins on the site with - at its most expansive - the capacity of four resident guests per cabin - there being a double bed and a fold-out bed in each of them. 48 Although I accept that there would not be the same length of use by non-resident guests, there would still be - at maximum capacity - significantly over a doubling of the persons potentially on site using the facilities. In this regard, I should note that I specifically reject the statement that is contained on p 9 of Mr Lonergan's statement of evidence filed in matter 10589 of 2003 (which was exhibit B) that I am being asked to formalise the present use. There is - in planning terms - a condition that currently provides that there be no public use and I am being asked to vary that. It is neither appropriate nor possible for me to consider whether the present operations of the facility (being carried out on the advice of Senior Counsel - as noted by Mr Lonergan in one of his reports) are lawful or not. I am obliged under the Act to deal with the application as it is presently before me - that is that there is presently no approval for such public use and I am being asked to provide an approval for such use. 49 I therefore conclude that it is appropriate to consider the issue of intensification. I am satisfied that, internally within the site, there is a significant intensification of the maximum number of persons who would be permitted to use the facilities. 50 With respect to the planning issues arising out of the use of the road, it was the evidence of Mr Dawson, Mr Hamill and Mr Bucks that the character and amenity of Newes Road would be significantly intensified, adversely impacted and certainly not of a "low scale" nature from the increased number of vehicle movements that would arise from this facility if the use were permitted to be changed. 51 On the other hand, it was Mr Lonergan's evidence that, even if the facility were to operate at peak capacity seven days a week - 52 weeks a year, there would be some change in the character and amenity of Newes Road but that that would not be significant and it would certainly not be unacceptable or beyond what I understand him to say to be the upper end of low scale of activity. 52 I am satisfied from the view and the evidence that was given by Mr Bucks and Mr Hamill about the nature of the amenity enjoyed by the local residents of Newes Road that the intensification of use of the road that would result if the premises were to operate at maximum capacity would alter the nature of the scale of the development. In this regard I note that the effect of the changes to the Local Environmental Plan since the original application was approved have been to have the effect of, by necessary implication in my view, restricting further what might constitute and fall within low scale activities as interpreted under the present provisions compared with to those that were effective at the time the original consent was granted. In this regard, I have taken into account not only the changes to cl 34(3)(f) but also the significant tightening of the permitted size of facilities to which consent can be given pursuant to cl 34 arising out of the provisions of cl 34(2). 53 I am therefore satisfied, when tested against the provisions of cl 34 (3)(f) and not merely against cl 79C of the Environmental Planning and Assessment Act, that the present appeal cannot succeed. 54 I note, however - as I consider it appropriate to do so - that Mr Clay made the concession that some level of public access for non-resident guests - but unquantifiable and quite properly incapable of being quantified under the present circumstances - could possibly be appropriate if there were an assessment as to number and frequency. 55 In this regard, I also note that Mr Bucks made what was an implied concession in this regard in that he did not object to the intensification of use at peak periods of Christmas and Easter. He did so by implication compared to what he understood to be the present level of operation whether lawful or otherwise of the facility. Put simply, he wished to see appropriate restrictions on such use as would enable him to enjoy his present lifestyle. 56 I considered whether there was any scope (in the light of the decision of Bignold J in Manzie v Willoughby Council) and whether it was either appropriate or available to me to give some guidance to the parties that might assist them in any negotiations if that matter were to be further explored given my remarks about appropriateness under general s 79C criteria. However, I have come to the conclusion that I do not have any satisfactory or proper evidentiary basis to give any guidance to the parties for any future discussions on these matters. 55 I have, therefore, come to the conclusion, based entirely on what I consider to be the restrictions required by cl 34(3)(f) of the Byron Local Environmental Plan, that the appeal must be dismissed and Development Application 02/764.1 must be refused. The exhibits may be returned. Tim Moore 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.