111 Investments Pty Limited v Corowa Shire Council [2010] NSWLEC 1165

Land and Environment Court of New South Wales

CITATION : 111 Investments Pty Limited v Corowa Shire Council [2010] NSWLEC 1165

APPLICANT 111 Investments Pty Limited PARTIES : RESPONDENT Corowa Shire Council

FILE NUMBER(S) : 10936 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- establishment of a "primitive camping ground" - inconsistency with the character of the surrounding area - detrimental impact on the amenity of the area - the need to connect to the sewerage system - bushfire risk.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Corowa Local Environmental Plan 1989 Murray Region Regional Environmental Plan No 2 - Riverine Land Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005

DATES OF HEARING: 29,30 March 2010

EX TEMPORE JUDGMENT DATE : 30 March 2010

APPLICANT Ms S Duggan, barrister SOLICITORS Kell Moore Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Astill, solicitor SOLICITORS Blake Dawson

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

30 March 2010

10936 of 2009 111 Investments Pty Limited v Corowa Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No 2009/14 by Corowa Shire Council (the council) to establish a "primitive camping ground" at 45 Pimpala Crescent, Mulwala (the site). A primitive camping ground has a specific meaning and is addressed later in the judgment. 2 The contentions raised by the council relate to the inconsistency with the character of the surrounding area, the detrimental impact on the amenity of the area, the need to connect to the sewerage system and the bushfire risk. The site 3 The site is lot 1 in DP 616075 and has a total area of 41.06 hectares. It is irregular in shape with the access handle at the eastern part of the site at Pimpala Crescent. The western part of the site extends to the Murray River and is subject to inundation. The site also contains a number of informal tracks with the main track leading from Pimpala Crescent to the Murray River. 4 The site is largely covered with remnant and regrowth vegetation typical of the area but with some clear areas and some more densely vegetated areas. The surrounding development is dominantly rural/residential in character, with other nearby land uses consisting of a munitions factory and a State forest. The proposal 5 The proposal seeks approval for 12 camping sites, a 240 sq m storage shed, a toilet and shower block measuring 3 m x 9 m, a 9,000 litre effluent tank (being 3,000 litres for sewage and 6,000 litres for grey water), located below the toilet and shower block, a 2,000 litre tank for fire fighting purposes and a 6,000 litre tank for rainwater. 6 The proposal was amended during the hearing to provide the size and location of each camping site and a designated area of 22 ha for the primitive camping ground. A caravan storage area is located on the site adjoining the storage shed and toilet and shower block but not within the designated area of the primitive camping ground. 7 The primitive camping ground is to be used by the 12 shareholders of the applicant company who own the site. It is to be used primarily, but not exclusively, on public holidays and holidays such as Christmas and Easter. Relevant planning controls 8 The site is within Zone 7(a)(Environment Protection Zone) under Corowa Local Environmental Plan 1989 (LEP 1989). The use is categorised as a "tourist facility" and is a use that is permissible with consent in this zone. Clause 9(3) provides that the consent authority shall not grant consent unless the proposed use is consistent with the zone objectives. The council raised no specific contentions in relation to any inconsistency with zone objectives, although objective (e) relates to water quality, which was raised as an issue by the council. 9 Clause 10 provides general considerations for development. This clause provides that the consent authority shall not consent to a development application unless an assessment has been made of a number of matters. The relevant matters are: (e) the practicality, adequacy and cost of providing, extending and maintaining public amenities for and services to the development; (g) development on adjoining land or other land in the locality; and (h) the means of access and availability of parking and whether these are adequate for the development, including the likely traffic effects of the development. 10 Clause 33 provides requirements for development along the river, although the council raised no issues in relation to this clause. 11 The site is subject to Murray Region Regional Environmental Plan No 2 - Riverine Land (REP 2). The aim of the plan in cl 2 is "to conserve and enhance the Riverine environment of the River Murray for the benefit of all users". Clause 8(b) provides that the plan applies when a consent authority determines a development application. Clause 9 provides general principles and cl 10 provides specific principles. The relevant principles are Access, Bank Disturbance, Flooding and Water Quality. 12 Clause 13 contains planning controls on specific matters. The relevant matter is 6 Caravan Park/Camping Ground. The matters relevant to this application are permanent facilities, pedestrian access to the Murray River in riverfront locations and buffers to the Murray River. 13 The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (Regulation 2005) applies. Regulation 2005 provides opportunities for affordable alternatives in short term and long term accommodation in a range of forms. Subdivision 9 provides requirements for primitive camping grounds. Requirements are provided for density (r 132(1), (2)(a) and (b)), proximity to other camping facilities (r 132 (2)(c) and (d)), the provision of water toilet and refuse disposal (r 132(2)(e)), unoccupied camping facilities to be removed within 24 hours (r 132(2)(f)) and fire fighting facilities (r 132(2)(g)). 14 Importantly, r 132(4) states that the provisions of Subdivision 1 - 8 do not apply to a primitive camping ground. Subdivisions 1 - 8 provide requirements for Land and Site Requirements (sub 1); Setbacks (sub 2) Roads (sub 3), Utility Services (sub 4), Shower and Toilet Facilities (sub 5), Laundry Facilities (sub 6), Management (sub 7), and General Requirements (sub 8). 15 Put simply, the provisions of facilities and infrastructure are far less onerous for primitive camping grounds than other camping grounds or other forms of accommodation under Regulation 2005. 16 The Corowa Shire (Murray River Flood Risk Management) Development Control Plan 21 (DCP 21), the Flood Plain Risk Management Study, Corowa, Howlong and Mulwala and the Corowa Flood Plain Development Guidelines (the Flood Guidelines) were relied on by the council. The evidence 17 Town planners, Mr Warwick Horsfall provided expert evidence for the applicant and Mr Bob Parr provided expert evidence for the council. A number of local residents provided evidence on site and opposed the proposed development. Their concerns related to: - the access provisions to the site, - the increase in traffic movements, - increased dust, - loss of privacy, - headlight glare, - litter, - increased service vehicles, - loss of security, and - noise, particularly near the entrance to the site and late at night. Character of the area 18 On the question of inconsistency of the proposed use with the character of the area, I am satisfied that as a tourist facility is a permissible use in the zone, there can be no reasonable argument that there is a fundamental inconsistency with the character of the area. The test of whether a use is inconsistent with the character of an area rests predominantly on the particular characteristics of that use. This is addressed later in the judgment but was not found to be a reason to refuse the application. Amenity impacts Noise, car parking, litter, dust and headlight glare 19 Mr Horsfall and Mr Parr addressed the potential amenity impacts on nearby properties in their joint statement and also in their oral evidence. My understanding was that Mr Parr's principal concerns over amenity related to the activities around the entrance to the site in Pimpala Crescent. Mr Parr states that previous use of the site has raised concerns in relation to noise, car parking, litter, dust and headlight glare, particularly to the properties on either side of the access point. 20 In response, the applicant proposes the following measures: - the sealing of the access driveway for a length of 250 m from Pimpala Crescent to avoid dust, - the placement of a litter bin at the end of the sealed driveway, - the gate at the entrance to be kept open when the site is being used to avoid the need to stop and open the gate, - any deliveries and pick up or dropping off of persons at the site is to occur at the end of the sealed driveway, - the area near the entry is to be quarantined from parking cars by a physical barrier, - an emergency contact phone number will be provided to residents, - restrictions on the areas where recreational vehicles can be used; and - restrictions on the times for the use of recreational vehicles on the site. 21 These requirements are to be imposed either as conditions of consent or through a plan of management referred to in any approval. 22 There was agreement between Mr Horsfall and Mr Parr that compliance with these measures will provide an acceptable level of amenity for the local residents.