Land and Environment Court New South Wales Medium Neutral Citation: Tang v Kiama Municipal Council [2019] NSWLEC 1464 Hearing dates: 17-18 June 2019 Date of orders: 03 October 2019 Decision date: 03 October 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) The development application for the demolition of an existing dairy and the construction of a 3-storey principal dwelling house, a secondary dwelling house, farm-stay accommodation comprising 5 self-contained buildings, a reception building and hay and tractor sheds at Lot 12 DP 866128 is refused. (3) The exhibits are returned, except for Exhibits A and 10. Catchwords: APPEAL – development application – farm stay accommodation – dwelling house – rural development – permissibility of farm stay accommodation – aboriginal cultural heritage impacts unknown – bulk and scale of the development – scale and siting of principal dwelling – large dwelling on side of the ridge – whether conspicuous in the landscape – whether protects and maintains scenic rural landscapes and low density residential character Legislation Cited: Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 2011 Land and Environment Court Act 1979 Cases Cited: Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121 Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 Shire of Perth v O'Keefe (1964) 110 CLR 529 Texts Cited: Kiama Development Control Plan 2012 NSW Agriculture - Illawarra Region – Agricultural Land Classification Map Category: Principal judgment Parties: Mingyu Tang (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Planning Law Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/114754 Publication restriction: No Judgment 1. COMMISSIONER: Mr Tang owns 59ha of property on the eastern side of Jamberoo Road, a road which winds through the rural locality of Croom from Albion Park in the north to Jamberoo in the south. Mr Tang seeks development consent for the demolition of an existing dairy and the construction of a 3-storey principal dwelling house, a secondary dwelling house, farm-stay accommodation comprising 5 self-contained buildings, a reception building and hay and tractor sheds. These proceedings are an appeal by Mr Tang against a decision of the Council of the Municipality of Kiama ("the Council") on 21 August 2018 to refuse the application for development consent. 2. Following a conciliation conference conducted pursuant to s 34 of the Land and Environment Court Act 1979, Mr Tang obtained leave to amend the development application. The amended development application is proposed to be constructed in two stages, with the first stage involving the construction of the principal dwelling and secondary dwelling, with associated vehicle access to continue to facilitate and develop primary agricultural farming activities on the site. The dwelling house has 10 bedrooms and a proposed floor area of 2546m2, and the secondary dwelling a floor area of 178m2. It is anticipated that construction of both dwellings will commence at the same time, with the secondary dwelling likely to be completed first and be occupied by the farm manager who currently lives off-site. The second stage would then involve the construction of the five farm stay accommodation cabins, the farm stay reception building and associated vehicular access. The farm-stay cabins each have a floor area of 178m2. The site plan demonstrating the proposed layout of the buildings on the site and the vehicular access is shown at Figure 1. 1. The Council remains opposed to the grant of development consent, and raises issues with respect to the permissibility of the proposed farm-stay accommodation, the impact of the principal dwelling on the rural landscape character of the area, and the impact on potential aboriginal archaeological deposits. 2. For the reasons set out below, I have determined that whilst the farm stay accommodation is permissible, development consent should be refused to the farm stay accommodation because of the potential impacts on aboriginal cultural heritage. Further, for the reasons outlined, I have determined that the design and siting of the principal dwelling does not protect and maintain Kiama's scenic rural landscapes and low density rural residential character, as a result of the combined impact of its location, floor area, wall height of the wing, and building length. The site and the locality 1. The hearing commenced with a site inspection. The site is legally described as Lot 12 DP 866128 and is situated on the eastern side of Jamberoo Road, Croom. It is generally rectangular in shape with a total area of 58.55 ha. 2. The site is undulating, with a peak within the site and a fall of approximately 24% or 14deg away from the peak. The site drains to the natural watercourses which traverse the property, some of which are mapped as Category 3 watercourses pursuant to cl 6.5 of the Kiama Local Environmental Plan 2011 ("KLEP 2011"). 3. The only structures on site at present are an old dairy farm shed and a farm equipment shed, which are located immediately adjacent to the site entry point on Jamberoo Road. Whilst the site has a history of use as a dairy farm, it is currently home to a number of alpacas. A number of cattle are agisting on the site, and some areas of the site have recently been harvested for silage. 4. The site is not serviced with water and sewer facilities but is serviced by electricity and telecommunication services. The site also contains a number of transmission line easements. An unformed Crown Road traverses the site, and is the subject of an agreement for sale to Mr Tang. A portion of the site, in the north-east and adjacent to the eastern boundary, is identified as biodiversity land on the Terrestrial Biodiversity Map, pursuant to cl 6.4 of the KLEP 2011. 5. The site is identified on the Office of Environment and Heritage Aboriginal Heritage Information Management System ("AHIMS"), which indicates that an aboriginal site has been recorded in or near the site, and aboriginal places have been declared in or near the site. In particular, there is one recorded Aboriginal cultural heritage site within the site, a grinding grooves site identified on the AHIMS, and there are four areas of potential archaeological deposits ("PADs"). 6. The site is situated within a rural environment in which surrounding development is predominantly characterised by grazing land and agricultural pursuits on rural lots varying in size. 7. The site is designated class 3 and class 4 under the NSW Agriculture - Illawarra Region – Agricultural Land Classification Map. Class 3 is defined as: "Lands well suited to pasture improvement and associated pasture management practices. These lands may be cultivated for an occasional crop depending on the nature of the constraint. Overall there is good capability for agriculture." 1. Class 4 is defined as: "Grazing lands not suited to cultivation. Agricultural capability is based on native pastures and/or improved pastures relying on aerial or zero tillage establishment techniques." 1. Mr Tang intends to commence a commercial alpaca operation on the land. The farming of alpacas is primarily for the shearing of their fleece for the harvesting and sale of wool. 2. Jamberoo Action Park is located immediately to the west of the site, on the opposite side of Jamberoo Road, and has a number of amusement water rides that are visible from public areas within the locality. 3. The land surrounding the subject site is located within Zones RU2 Rural Landscape, E2 Environmental Conservation and E3 Environmental Management. Land to the north and east of the site is located within the Shellharbour Local Government Area. The Planning Framework 1. The site is situated within Zone RU2 Rural Landscape and Zone E2 Environmental Conservation pursuant to the provisions of KLEP 2011. An extract of the land zoning map is at Figure 2. 1. The aims of the KLEP 2011 include the following: (a) to provide planning controls for the Kiama area to achieve ecologically sustainable development principles while recognising the economic, environmental and social impacts and risks associated with climate change, (b) to maintain, protect and improve the natural environment including native vegetation, endangered ecological communities, natural habitat corridors, riparian land, groundwater dependent ecosystems and wetlands for their biodiversity values, (c) to conserve and protect the area's water resources, groundwater, waterways, and water quality for their biodiversity, ecological, health and recreational values, (d) to protect agricultural land and restrict its fragmentation for purposes other than primary production, (e) to protect and enhance the coastal and rural character of Kiama's rural towns, neighbourhoods and villages, and the characteristic scenic landscapes that contribute to its liveability and identity, (f) to consolidate future population growth and medium density housing primarily in locations near shops and public transport, … (h) to protect and maintain land used or to be used for employment in rural and urban areas, (i) to promote and co-ordinate the orderly and economic use and development of land, (j) to maintain, protect and enhance environmentally sensitive land for its biodiversity and ecological values, … 1. Clause 2.3(2) of the KLEP 2011 requires the Court, in exercising the functions of the consent authority, to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • 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. • To protect agricultural land for long term agricultural production. • To provide opportunities for employment-generating development that adds value to local agricultural production through food and beverage processing and integrates with tourism. 1. "Farm stay accommodation" is a nominated permissible use in the RU2 zone, as are "dwelling houses" and "secondary dwellings". Extensive agriculture is permitted without consent, which allows Mr Tang to pursue the farming of alpacas without obtaining development consent. 2. Farm stay accommodation is defined as follows in the KLEP 2011: farm stay accommodation means a building or place that provides temporary or short-term accommodation to paying guests on a working farm as a secondary business to primary production. Note. See clause 5.4 for controls relating to the number of bedrooms. Farm stay accommodation is a type of tourist and visitor accommodation - see the definition of that term in this Dictionary. 1. Clause 5.4 provides as follows (insofar as it is relevant): 5.4 Controls relating to miscellaneous permissible uses … (5) Farm stay accommodation If development for the purposes of farm stay accommodation is permitted under this Plan, the accommodation that is provided to guests must consist of no more than 5 bedrooms. … 1. Clause 4.6 of the KLEP 2011, which allows exceptions to development standards if certain requirements are met, does not allow development consent to be granted for development that would contravene cl 5.4. At cl 4.6(8) it provides: (8) This clause does not allow development consent to be granted for development that would contravene any of the following: … (c) clause 5.4. 1. There is no floor space ratio control, or height development standard, that applies to the site pursuant to the provisions of the KLEP 2011. 2. Clause 5.10 of the KLEP 2011 concerns heritage conservation, and includes the following objectives: (1) Objectives The objectives of this clause are as follows: … (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. 1. At subcl (2), the clause sets out the circumstances in which development consent is required. It provides, relevantly: Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, … (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, … 1. The definitions of "aboriginal object" and "aboriginal place of heritage significance" are as follows: Aboriginal object means any deposit, object or other material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of an area of New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains. Aboriginal place of heritage significance means an area of land, the general location of which is identified in an Aboriginal heritage study adopted by the Council after public exhibition and that may be shown on the Heritage Map, that is: (a) the site of one or more Aboriginal objects or a place that has the physical remains of pre-European occupation by, or is of contemporary significance to, the Aboriginal people. It may (but need not) include items and remnants of the occupation of the land by Aboriginal people, such as burial places, engraving sites, rock art, midden deposits, scarred and sacred trees and sharpening grooves, or (b) a natural Aboriginal sacred site or other sacred feature. It includes natural features such as creeks or mountains of long-standing cultural significance, as well as initiation, ceremonial or story places or areas of more contemporary cultural significance. 1. The parties agree that the locations on the site that are identified as either a recorded Aboriginal cultural heritage site or as areas of PADs, do not fall within the definition of an Aboriginal place of heritage significance. 2. Pursuant to cl 6.4, the following applies to the assessment of development applications concerning land mapped as biodiversity land: (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider whether or not the development: (a) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, (b) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, (c) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (d) is likely to have any adverse impact on the habitat elements providing connectivity on the land. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. Pursuant to cl 6.5, the following applies to the assessment of a development application concerning land within 10m from the top of the bank of a Category 3 watercourse: (3) Before determining a development application to carry out development on land to which this clause applies, the consent authority must consider whether or not the development: (a) is likely to have any adverse impact on the following: (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and its riparian areas, and (b) is likely to increase water extraction from the watercourse. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. The Kiama Development Control Plan 2012 ("KDCP 2012") applies to the site, and at Chapter 6 sets out controls with respect to rural development. The objectives in Section 1 include the following: "• To protect agricultural land and restrict its fragmentation for purposes other than primary production. • To ensure that development does not inhibit the use of agricultural land for agriculture. … • To protect and enhance the character of the Kiama area's coastal and rural scenic visual landscapes" 1. The design and siting controls for rural dwellings and alterations within Section 1 have a number of objectives, including the following: "• To ensure that rural housing and ancillary development is designed and sited to protect agricultural land. … • To protect and maintain Kiama's scenic rural landscapes and low density rural residential character • To protect rural residential amenity. …" 1. The controls within Section 1, which is entitled "Design and Siting Controls for Rural Dwellings/Alterations" include the following: "Controls A dwelling house, secondary dwelling or ancillary development or their building envelope must not be located on a ridge, saddle or knoll. C1 Building height of all development must be determined in consultation with Council development assessment staff. In general a 2 storey 8.5m building height will be applied in these areas. An exception to this control includes farm buildings and other farm structures such as hay sheds, silos and wind turbines. C2 Development comprising a mix of a principal dwelling, a secondary dwelling and ancillary development (including bed and breakfast accommodation or farm stay accommodation) must be designed in a way to avoid or mitigate the visual impact of development on the landscape as viewed from a public place. … C4 Design should incorporate an external colour scheme which is subdued and locations which are screened by natural vegetation and landform so as to reduce the visual impact of buildings within a rural landscape. Colours and materials which can be demonstrated to improve energy efficiency are encouraged where site circumstances are justified. … C7 Rural dwellings and ancillary development must be designed and sited to protect agricultural land; avoid/minimise their impact on the natural environment and the scenic landscape; and be clustered rather than dispersed over the property. C8 Dwellings and ancillary development in rural areas must be carefully and sensitively sited and designed to compliment [sic] landscape rather than become conspicuous built elements in the landscape. The siting of habitable buildings should also have regard to any existing or approved agricultural use of adjoining land and the amenity of neighbours. … C12 Ancillary development should also be where possible and practicable clustered around the principal dwelling, or able to utilise the same accessways. C13 Ancillary development will need to be landscaped to mitigate visual impact visible from a public place. C14 Secondary dwelling must be located to minimise visual impact and the loss of agricultural land and taking into consideration: • Clustering with other buildings. • Sites with low visual impact. • Preference being given to sites with lower agricultural value. • Sites should not require removal of vegetation. • Preference is given to sites where land take for driveways is minimal …" 1. Chapter 13 of the KDCP 2012 concerns tourist accommodation, and applies to farm stay accommodation. 2. Section 13.3 provides a number of general objectives, including: "Ensure development in the rural areas: • maintains the agricultural potential of land; • prevent the fragmentation of agricultural land…" 1. For the siting of the development, the objective is that "Farm Stay Accommodation facilities are to be sited in order to reduce the impact on adjoining properties in terms of visual and acoustic privacy", and the controls include the following: "A1 Farm Stay Accommodation facilities are to be set back a minimum 20m from a public road. A1.1 Farm Stay Accommodation facilities are to be set back a minimum 20m from a public road. A1.2 Farm Stay Accommodation facilities are to be set back a minimum 15m from all other boundaries. A1.3 Farm Stay Accommodation facilities must be located a minimum of 100m from any dwelling located on an adjoining allotment. A1.4 The Farm Stay Accommodation building, containing a maximum of five (5) bedrooms, is to be clustered around any existing dwelling on site." 1. The remaining controls with respect to farm stay accommodation include a maximum guest capacity of two persons per bedroom (A2), the preclusion of full domestic laundry services being provided (however cupboard facilities may be acceptable) (A2.1), and a maximum duration of stay of 42 consecutive days and 200 days in a calendar year (A6). 2. Chapter 30 of the KDCP 2012 concerns heritage, and provides the following controls: "C2 Council will require a Preliminary Aboriginal Cultural Heritage Investigation to be undertaken for a development proposal that is: … • for a site containing any of the following small scale landscape features that may potentially hold Aboriginal cultural heritage sites/objects: o the riparian corridor 200 metres wide on each side of permanent or ephemeral creeks; o watercourses (including waterways subsequently modified by post-settlement activity); o sandstone outcrops adjacent to waterways/watercourses; … … C3 Council will require an Aboriginal Cultural Heritage to be undertaken for a development proposal that is: • within a site that is part of an Aboriginal Place as declared under the National Parks and Wildlife Act 1974; or • for a site containing a known Aboriginal site or object, as recorded by the Office of Environment and Heritage or identified by previous Aboriginal cultural heritage studies prepared for or held by Council…" 1. With respect to known or potential archaeological sites, the objective of the KDCP 2012 at Section 2.2 is to "protect and conserve archaeological or potential archaeological sites" and the control is that "C7 Council may require that an archaeological assessment of a site be carried out prior to the determination of a development application." The evidence of residents 1. At the commencement of the hearing, one resident objector spoke with respect to her concerns about the development, and another spoke on behalf of the Jamberoo Valley Ratepayers and Residents Association. Their concerns, together with issues raised in written submissions to the Council, can be summarised as follows: * The proposed development will have an adverse impact on the rural amenity and scenic quality of the area. * The character and scale of the proposed development, and in particular the principal dwelling, does not fit within the rural character of the area. * Stormwater runoff from the proposed driveway could damage the driveway of Lot 10 DP 866128. * Landscaping may obstruct views from Lot 10 DP 866128. * The size of the farm stay buildings and the principal dwelling are such that the rooms may readily be converted internally to increase the number of bedrooms. * The development will set an undesirable precedent in the area. * The farm stay accommodation is not permissible because there is presently no working farm that involves primary production, and a working farm is unlikely to be established given the history of the site and the lack of experience of the owner. * The farm stay accommodation is likely to be converted to and used as dwellings. 1. Largely, these issues are addressed in my consideration below. Expert evidence Agricultural productivity, town planning and visual impact 1. Mr Anthony Randall, a town planner employed by the Council, gave expert evidence on agricultural productivity, town planning issues and the visual impact on the rural landscape. Mr Robert Harborne, an agronomist engaged by Mr Tang, conferred with Mr Randall and gave expert opinion in a joint report with respect to agricultural productivity. 2. Mr James Harris, a town planner engaged by Mr Tang, gave expert opinion evidence on the town planning issues in a joint report with Mr Randall. 3. Mr Mark Hitchcock, an architect engaged by the Council, and Mr Simon Irwin, an architect engaged by Mr Tang, also gave evidence concurrently with Mr Randall and Mr Harris and in a joint report on the consistency of the development with the character of the area and on its visual impact. Environmentally sustainable development 1. Mr Hitchcock also gave evidence on whether the development was environmentally sustainable, in a joint report together with Mr Chris Lockhart Smith, a sustainability and energy efficiency consultant engaged by Mr Tang. They agree that the principal dwelling and the secondary dwelling pass the mandatory thermal performance targets as mandated by the BASIX protocol, and that the size of the principal dwelling is not a relevant consideration for water efficiency. They agree that the size of the principal dwelling creates a greater potential for rainwater harvesting, which is demonstrated by the size of the rainwater tank. They agree that the energy efficiency of the buildings are determined by BASIX by considering the fixed appliances, and no issue is identified with respect to the fixed appliances. Whilst Mr Lockhart Smith and Mr Hitchcock disagree with respect to the lifespan of the building, passive cooling and heating of the principal dwelling and the consequences of the embodied energy of the principal dwelling, the Council no longer presses its contention with respect to the environmental sustainability of the proposed development. Restoration ecology 1. Mr Paul Price, a restoration ecologist engaged by Mr Tang, gave evidence on terrestrial biodiversity and the impact of the proposed development on the land mapped as E2 Environmental Conservation and also mapped as having terrestrial diversity. As a result of that evidence, the Council agrees that none of the land mapped as Zone E2 Environmental Conservation will be impacted by the proposed development, and that additional works undertaken in accordance with the proposed Vegetation Management Plan will improve the vegetation within the area zoned as E2. Engineering 1. Mr Matthew Philpott, an engineer engaged by Mr Tang, and Mr Mark Biondich, an engineer employed by the Council, conferred and gave evidence in a joint report concerning the electricity supply, easements over the land, traffic and road safety, and riparian land and watercourses. They agree that if development consent is granted, it is highly likely that an adequate electrical connection can be provided through the site and that a suitable condition of the consent could require the electrical connection to be provided. They also agree that the written permission from Endeavour Energy, which benefits from an easement over the site, is not required prior to the granting of consent and that a condition of consent could require that written permission. Their evidence is also that the existing driveway location into the site is sub-optimal, and whilst they disagreed on how the driveway entrance and intersection with the road should be designed and constructed, Mr Tang has agreed to construct the entry to the driveway in accordance with the requirements of Mr Biondich. Aboriginal cultural heritage 1. Ms Taryn Gooley, an archaeologist specialising in aboriginal cultural heritage assessment, engaged by Mr Tang, gave expert evidence in an expert report concerning the grinding grooves site identified on the AHIMS, and the four areas of PADs. The grinding grooves site is identified as AHIMS 52-5-0235 and consists of two panels of grinding grooves on an exposed sandstone outcrop near the crest of the highest point within the site. Her evidence is that the proposed development in its current design will not directly impact on the grinding groves site known as AHIMS 52-5-0235, but that a Cultural Heritage Management Plan ("CHMP") should be development in order to protect as AHIMS 52-5-0235 and to address impacts from potential increased visitation to the site as a result of the proposed development. Her evidence is also that the proposed development will impact on PAD 1, PAD 2 and PAD 3, which is considered further below. The issues in dispute 1. The following issues remain in dispute and require consideration: * Whether the tourist accommodation meets the definition of "farm stay accommodation"; * Whether the farm stay accommodation complies with the requirement in cl 5.4(5) of the KLEP 2011 to "consist of no more than 5 bedrooms"; * Whether the reception building is permissible; * Whether it is appropriate to grant consent in circumstances where test excavation is required to establish if Aboriginal objects exist with the areas of the PADs; * Whether the visual impact, bulk and scale of the proposed development is acceptable; and * Whether the proposed development is consistent with the objectives of the RU2 Rural Landscape zone, in particular whether it protects agricultural land for long term agricultural production. Is the proposed accommodation farm stay accommodation? 1. For the tourist accommodation to be permissible on the site with development consent, it must fall within the definition of "farm stay accommodation" as a place "that provides temporary or short-term accommodation to paying guests on a working farm as a secondary business to primary production". The Council says the tourist accommodation is not farm stay accommodation 1. The Council's position is that, in circumstances where there is no "working farm" at present, there is no "primary production" to which the accommodation can be a secondary business, and therefore the accommodation cannot fall within the definition of "farm stay accommodation". It says that the intention to have a working farm and primary production is not sufficient to satisfy those elements of the definition. 2. The Council submits that farm stay accommodation is about generating income to supplement an income from the farm, and as such, until you have a working farm you can't be certain that the working farm will be a form of primary production and that the accommodation will be a secondary business to that working farm. The Council says that one factor by which this can be measured is hypothetical income, and submits that there is no evidence that the income generated by the accommodation will be secondary to that generated by the working farm, that is, the alpaca farm. The Council's submission is that the income of the working farm should be in evidence at the time of the determination of the development application, so as to establish that the income from the farm stay accommodation will be less than that of the working farm. Mr Tang argues that the proposed use is farm stay accommodation 1. Mr Tang submits that there are three elements to the definition of farm stay accommodation. The first is that it is "a building or place that provides temporary or short-term accommodation to paying guests", the second is that it is "on a working farm", and the third is that it is "a secondary business to primary production". Mr Tang submits that each of these elements is satisfied, and that therefore the proposed accommodation is farm stay accommodation. Mr Tang says that the first element is met as the proposed accommodation is a place, or multiple buildings, that provides temporary or short-term accommodation for paying guests. 2. With respect to the second element, Mr Tang submits that the evidence is that the site is currently used as a "working farm" as it is being used for harvesting silage and for cattle agistment. Mr Tang submits that this working farm will continue with the transition to an alpaca farm. 3. Mr Tang also submits that the third element is met, as both qualitatively and quantitatively the farm stay accommodation is intended to be a secondary business to the farming of alpaca. Mr Tang says that it cannot be the purpose of the definition of farm stay accommodation to require evidence, at the time of lodgement or determination, that the income from the primary production is greater than the farm stay accommodation. Instead, Mr Tang says that the Court can infer, from the evidence of Mr Harborne and the site area to be utilised for grazing, that the farm stay accommodation is intended to be a secondary business. Mr Harborne's evidence is that the alpaca farm would generate revenue of up to $150,000 per annum, whereas the evidence is that the farm stay accommodation is expected to yield an income of $100,000 per annum. Further, Mr Tang points out that the area of land no longer available for grazing (including the dwelling house, secondary dwelling and farm stay accommodation) is 41%. As such, the area available for farming of alpaca is much larger than that occupied by the farm stay accommodation. Indeed, Mr Tang says that if the definition of farm stay accommodation requires that income from the accommodation remains less than that of the alpaca farm, a condition could be imposed that prevents the operation of the farm stay accommodation in the event that its income exceeds the income from the primary production. Further, where there is intended to be transition to a new form of production, Mr Tang says that it is not necessary to furnish evidence of past income to meet what the Council says are the definitional requirements. The evidence on agronomy 1. With respect to the hypothetical income of the alpaca Farm, a range of evidence is before the Court. The Proposed Alpaca Farm report and supporting expert review 1. In support of the development application, Mr Tang relies on a Proposed Alpaca Farm report by Rajarshi Ray of Silos Estate Alpaca Farm dated December 2018, together with an expert review of the proposed establishment of an alpaca farm by MNC Agronomy Pty Ltd dated 16 January 2019. The report considers that the 36ha of available land has a carrying capacity range of 72 to 240 animals, with 144 animals a suitably conservative figure. Based on a target income of $150,000, the report considers that a smaller stocking rate of 9-10 animals per hectare could achieve that target. The expert review by MNC Agronomy concludes that the site can support a productive alpaca grazing operation with wool being harvested for processing. If the wool is processed effectively, the senior agronomist Matt Thompson estimates that the production "is likely to generate over $200,000 worth of saleable (retail) product from the property annually". Both documents acknowledge that several capital investments need to be made for an effective alpaca farm, including appropriate shedding, pasture improvement, equipment and fencing. Both documents also rely on the retail sale of value-added scarves and doonas in estimating the income, rather than on the sale of raw wool. The comments by the Department of Primary Industries 1. Under cover of a letter dated 16 April 2019, the Department of Primary Industries ("DPI") provided comments with respect to the potential for the site to sustain a working alpaca Farm with farm stay accommodation as a secondary business. The comments were provided based on information from a Sheep Development Officer from DPI, and are made by Ms Wendy Goodburn, an Agricultural Land Use Planner. Those comments consider that the 'primary production' revenue should be derived from the sale of raw wool, which is estimated to be $28,000. Ms Goodburn states that there is no evidence to suggest that the $150,000 income can be achieved, and that: "Processing or manufacturing of a product is not considered to be primary production. It is secondary production. Given that the farm stay accommodation is to be a secondary business to the primary production on site, the secondary processing or manufacturing does not meet this requirement." 1. She then goes on to state: "The farm stay accommodation has the potential to generate considerably more than the farm enterprise and in that case would not be considered to be a secondary business to the primary production on site." The joint expert evidence 1. Mr Harborne and Mr Randall agree that the income from the harvesting silage and using the property for cattle agistment is not relied upon by the proponent for the purpose of satisfying the definition of farm stay accommodation. They agree that alpaca farming and wool shearing is primary production for the purpose of the definition of farm stay accommodation, but that the working alpaca farm has not yet been established and its associated primary production income stream is hypothetical. They agree that a forecasted income from the farm stay accommodation is $100,000 per annum. 2. Mr Harborne's evidence is that the alpaca Farm has the potential to achieve the target revenue of $150,000 as described based on (raw) wool production and export market capacity, with the export of only 10-15 males and 40-50 females needed to gross in excess of $150,000. He considers that the enterprise will also include fodder production and cattle background operation as excess feed becomes available. 3. Mr Randall does not agree that the income of $150,000 will be achieved, and further opines that the capital expenditure for the farm stay accommodation is far greater than that for the alpaca Farm, which indicates that the accommodation is not a secondary business to the primary production of the alpaca Farm. The proposed use is farm stay accommodation 1. The question of whether the proposed accommodation is farm stay accommodation is resolved by determining what use is proposed in the development application. Development is for a purpose (see Shire of Perth v O'Keefe (1964) 110 CLR 529), and I need only be satisfied that what is proposed in the development application is for the purpose of farm stay accommodation. Further, if consent is granted, the consent for the farm stay accommodation is constrained to that use. It is then the responsibility of the proponent and future operators to ensure that the use is for the purpose of farm stay accommodation, otherwise the use is a use that is either prohibited or not in accordance with the consent (or both). The risk that the use, once commenced, will not be farm stay accommodation is not relevant to whether the proposed use is farm stay accommodation. As I stated in Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 at [91], "whether there is a risk that the use of the premises might evolve into a prohibited use is irrelevant to considering whether consent should be granted for a permissible use." 2. Contrary to the position of the Council, the existence of the working farm is not required prior to the grant of development consent. Whilst, by definition, the farm stay accommodation depends on the existence of a working farm, that working farm need not be in existence at the time of the grant of development consent. Instead, I need to be satisfied that what is proposed, that is, the prospective use, is accommodation on a working farm. This means that I ought to be satisfied that there is a working farm that is likely to be in existence at the time that development for the purpose of the accommodation is carried out, otherwise what is proposed could not be "on a working farm". The risk that the accommodation commences operation without a working farm and the use is therefore not farm stay accommodation, does not affect the permissibility of the proposed farm stay accommodation and is not relevant to whether consent should be granted for the farm stay accommodation. 3. This is analogous to development for the purpose of shop top housing, which is defined as "one or more dwellings located above ground floor retail premises or business premises". There must therefore be "ground floor retail or business premises" above which the dwellings are located, but those premises need not have been constructed by the time of the grant of consent (see, for example, Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121). Further, the risk that the ground floor use may not eventuate to contain any "retail or business", which means that the dwellings would no longer meet the definition of "shop top housing", is not relevant to the permissibility of what is proposed. 4. Further, I do not need to be satisfied that the farm stay accommodation will be carried out in accordance with the definitional requirement for it to be a secondary business to primary production. I need to be satisfied that what is proposed is accommodation that is capable of being a secondary business to primary production. If consent is then granted for the farm stay accommodation, then the only use of those buildings that is permitted is farm stay accommodation and the use that actually occurs must meet the definitional requirements for it to be a secondary business to primary production. 5. For the above reasons, I need only be satisfied that the use proposed is farm stay accommodation and that it is capable of being used as farm stay accommodation, including that it is proposed to be, prospectively speaking, "on a working farm" and it is capable of being a "secondary business to primary production". 6. On the present development application, I accept that there is sufficient evidence of a genuine intention to start an alpaca farm that would become a working farm and a form of primary production. I accept that the farm stay accommodation is capable of being used as such, including that it will be on a working alpaca farm and is capable of being a secondary business to the primary production of alpaca farming. I therefore accept that what is proposed is for the permissible use of farm stay accommodation. The requirement in cl 5.4(5) 1. The combination of cll 4.6 and 5.4(5) of the KLEP 2011 has the effect that development consent can only be granted for farm stay accommodation if it complies with the requirement that "the accommodation that is provided to guests must consist of no more than 5 bedrooms". 2. The Council submits that the words "must consist of no more than" means that the farm stay accommodation cannot include anything other than the 5 bedrooms. That is, the Council submits that the inclusion of kitchens, dining rooms, laundry, store room, bathroom, walk-in-robe and living areas in each of the farm stay cabins breaches cl 5.4(5). It says that the ordinary meaning of "consist" is that it excludes all other things, in contrast to the words "contain" or "comprise". 3. Mr Tang, on the other hand, submits that to adopt the Council's interpretation requires inserting the word "only" before or after the word "consist". He submits that this is not the appropriate way to interpret cl 5.4(5), and that it should instead be interpreted by reference to the words "no more than" such that the purpose of the provision is to restrict the number of bedrooms. 4. I am not persuaded by the Council's interpretation of cl 5.4(5). I consider that the words "consist of no more than" refers to a quantitative limit by a number, and does not extend to imposing a prohibition anything other than what is contained in that quantitative limit. This is discerned from the use of the words "consist of" in conjunction with the words "no more than", such that it is a reference only to a quantitative limit. I accept the submission of Mr Tang in that regard. 5. As such, there is no control over the other features of farm stay accommodation. This is in contrast to bed and breakfast accommodation, which in cl 5.4(1) is subject to a constraint identical to cl 5.4(5), but is prevented by its definition from providing "cooking facilities for the preparation of meals" with guests' rooms, and from providing dormitory-style accommodation. 6. For the reasons expressed at [71], I consider that the fact that each of the cabins contains bathrooms, kitchens and other rooms that are not bedrooms, is not a breach of cl 5.4(5). The impact of the proposal on Aboriginal cultural heritage 1. The evidence of Ms Gooley is that there are three PADs that will be impacted by the proposed development. Her evidence is that Jamberoo PAD 1 and Jamberoo PAD 2 were assessed as having high archaeological potential to contain subsurface cultural deposits. Her evidence is that the "proximity of these PADs to useful resources and fresh water, and their location at the confluence of two tributaries, indicates it would have been a valuable occupation area." Jamberoo PAD 3, which she says has been assessed as having moderate potential to contain archaeological material, is located along a saddle between the base of the crest that contains the grinding grooves. She considers that PAD 1, PAD 2 and PAD 3 will be impacted by the proposed development. Ms Gooley then states the following: "Prior to impacts occurring within the study area an ACHA inclusive of Aboriginal archaeological test excavations in accordance with 'the Code', and Aboriginal community consultation in line with 'the consultation requirements' must be undertaken. The purpose of the Aboriginal archaeological test excavations is to establish if subsurface archaeological deposits (Aboriginal objects) exist within the areas of PAD identified; and if present, to determine the nature and significance of the archaeological deposits. The results of the test excavations will inform the ACHA and assist in developing further management and mitigation measures such as modifications to the development design or archaeological salvage if required. Should Aboriginal archaeological deposits (Aboriginal objects) be identified during the ACHA process; and impacts cannot be avoided, an AHIP will be required prior to impacts occurring." 1. As set out above at [25], cl 5.10 of the KLEP 2011 makes it clear that development consent is required for demolishing or moving, or altering the exterior of, an Aboriginal object, and for erecting a building on land on which an Aboriginal object is located. 2. The overlay of the areas of the PADs on the site is shown at Figure 3. Whilst it is agreed that the proposed development in its current design will not directly impact on the grinding groves site, Figure 3 shows that the area of PAD 3 is impacted by proposed fencing and a waste water absorption area, and PAD 2 is impacted by one or more of the farm stay accommodation buildings and associated driveway, fencing and landscaping. PAD 1 is impacted by fencing only, and it is agreed that this fencing is existing. 1. Mr Tang's position is that the potential for the discovery of subsurface archaeological deposits can be managed through the imposition of conditions of development consent, which would enable Ms Gooley's recommendations to be satisfied prior to the issue of a construction certificate. The proposed conditions are as follows: "1. In order to establish if subsurface archaeological deposits (Aboriginal objects) exist within the areas containing potential aboriginal deposits identified in the Aboriginal Cultural Heritage Assessment by Biosis dated 11/1/2019, the applicant must undertake an Aboriginal Cultural Heritage Assessment ("ACHA") which includes: a) Aboriginal archaeological test excavations in accordance with the Code of Practice or the Archaeological Investigation of Aboriginal Objects in New South Wales (DECCW 2010a); b) Aboriginal community consultation in accordance with the Aboriginal Community Consultation in Accordance with the Aboriginal Cultural Heritage Consultation Requirements for Proponents (DECCW 2010b). 2. Should any Aboriginal objects be encountered during the ACHA process or during subsequent works: a) work must cease and the objects or remains should not be moved until assessed by a qualified archaeologist; and b) if impacts cannot be avoided, an Aboriginal Heritage Impact Permit ("AHIP") under the National Parks and Wildlife Act 1974 must be obtained. The ACHA must be undertaken, and AHIP obtained if required prior to issue of any construction certificate for the proposed farm buildings. 3. A Cultural Heritage Management Plan (CHMP) must be prepared in order to protect AHIMS #52-5-0235 and also address impacts from potential increased visitation to the site as a result of the proposed development. The CHMP must be approved by the Office of Environment and Heritage prior to issue of any construction certificate for any of the buildings on the site." 1. In the alternative, Mr Tang submits that a partial consent could be granted for the other aspects of the development application, with the remaining aspects to be finally determined once an Aboriginal Cultural Heritage Assessment is carried out. 2. The Council instead submits that consent cannot be granted, because it has not been demonstrated that the proposal will not have adverse impacts on Aboriginal cultural heritage. In particular, the Council points out that the impact on PAD 2 by the farm stay accommodation building is not known, and further testing is required to determine whether that building should be allowed. The Council submits that this element of the assessment cannot be left until after the grant of consent, as the impacts are currently not known and need to be considered prior to the grant of consent. If consent is granted, then it is granted without knowing the impacts, which would be contrary to s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which requires the consent authority to consider the "the likely impacts of that development". The Council also submits that the partial approval would not be appropriate for the efficient disposal of the proceedings. 3. The Council's position is supported by a letter from the Office of Environment and Heritage dated 25 March 2019, who consider that the test excavation should be carried out prior to the development application being determined so that the extent of the impact on Aboriginal heritage is known. 4. I accept the submissions of the Council. In order to grant consent for the proposed development, I need to assess its impacts, including, in particular, the impacts of the farm stay accommodation building on PAD 2. To assess those impacts, I would need to know whether there are aboriginal objects within the areas of the PAD, whether they will be impacted by the proposed development, and whether that impact is acceptable or avoidable by conditions of consent. This includes the consideration of the results of the Aboriginal Cultural Heritage Assessment recommended by Ms Gooley. I consider that the impact on PAD 3 may be one that is avoided by conditions of consent, as the impact is limited to fencing and the absorption area, which might be something that could be moved in the event that Aboriginal objects are found. However, the part of the proposed development that impacts PAD 2 is more significant. Given that PAD 2 was assessed as having a high potential to contain subsurface cultural deposits, and the nature of those deposits are not known and are uncertain, I cannot adequately assess the impacts of the proposed development on Aboriginal heritage. Further, any change to the design of the proposed development to move it away from PAD 2 would need to be assessed. The development application, particularly with respect to the farm stay accommodation, ought to be refused on that basis. 5. Additionally, if there are aboriginal objects identified, consent under subcll (2)(a)(ii) and (2)(e)(ii) of cl 5.10 of the KLEP 2011 is required, and a consent to the proposed development (with the inclusion of Mr Tang's suggested conditions) would operate as a consent under those clauses. In circumstances where it is assessed that PAD 2 has a high likelihood of archaeological deposits, but it is not known what those objects are and whether they will be unacceptably impacted by the proposed development, there can be no certainty around the nature of the consent given under subcll (2)(a)(ii) and (2)(e)(ii) and the development application should be refused accordingly. The bulk and scale of the proposed development The Council's position on bulk and scale 1. The Council's position is that the bulk and scale of the proposed development is, firstly, not compatible with the existing or desired future character of the rural locality, and secondly, causes an unacceptable visual amenity impact on surrounding properties and public places. 2. The Council relies on the evidence of Mr Randall and Mr Hitchcock in support of its position. There are a number of aspects of the proposed development that Mr Randall and/or Mr Hitchcock have identified as creating unacceptable bulk and scale. Their opinions concerning those aspects can be summarised as follows: * The size of the principal dwelling is around 800% larger in floor area than the average 315m2 dwelling surrounding the site, and its floor area of 2546m2 is unprecedented in the locality (Ex 10 p 8), * The principal dwelling is around 325% longer in its footprint than the average dwelling length of 22.5m for neighbouring dwellings, with a length of 73m unprecedented in the locality (Ex 10 p 9), * The principal dwelling is in a high position on a prominent hill (Ex 10 pp 8, 9) and on a ridge/knoll, contrary to the controls in the KDCP 2012 (Ex 10 p 16), * The principal dwelling presents as 3 storeys from Jamberoo and Croome Vale Roads, and 3-4 storeys from Minnamurra Lane (Ex 10 p 11), * The design of the proposed dwelling has a "confusedly complex architectural character" (Ex 10 p 12) and "mixes several architectural styles and a multitude of forms to create an incoherent whole" (Ex 10 pp 13-14), * The materials used for the principal dwelling include grey render, grey weatherboard cladding, dark grey colorbond roof to the upper portions and stone cladding to the lower portions of the building, which result in a bland building that emphasises its bulk (Ex 10 p 14), * The principal dwelling has large wings which, in places, work against the natural contours, which results in unacceptable additional bulk. One of the building's wings has 3m of blank stone wall (Ex 10 p 28), and * The principal dwelling is not sited in a cluster with the farm stay accommodation, and instead the principal dwelling, secondary dwelling, farm stay accommodation and associated infrastructure are dispersed across the site and separated by hundreds of metres (Ex 10 pp 8 and 32). 1. In the opinion of Mr Randall and Mr Hitchcock, the above aspects of the development have two impacts. The first is that they cause the proposed development to be inconsistent with the desired future character for the area, which is to maintain the rural landscape character of the locality and ensure that development is designed and sited to complement the landscape. The second is that they cause an unacceptable visual impact. 2. Mr Hitchcock's opinion is that the desired future character can be taken from the KDCP 2012, particularly in the objective to "protect and enhance the character of the Kiama area's coastal and scenic visual landscapes". He considers that the desired future character, as defined by the KDCP 2012 and the KLEP 2011, is for a rural dwelling development which maintains the rural landscape character of the locality, minimises visual disruption to the landscape and is sensitively sited to complement the landscape. Mr Randall considers that the rural landscape character in this context has a number of key defining characteristics that include modest scale dwellings of one and two storeys in height, and farm buildings generally clustered together, and located towards the street front property boundary. Mr Hitchcock opines that the siting, scale, architectural character and prominent location of the principal dwelling is not compatible with the scenic quality of the locality and its rural landscape character. Both Mr Randall and Mr Hitchcock consider that the principal dwelling features prominently within views to the Illawarra escarpment due to its conspicuous scale, high location within the landscape and complex architectural character, which is disruptive to the locality's scenic quality and rural character. Mr Randall also opines that the Jamberoo Action Park, which is relied upon by Mr Tang, does not significantly affect the visual character of the subject site because it is located in a different and separate visual catchment to the subject development. 3. The Council's position is that the inconsistency with the rural landscape character creates an additional, second impact, which is an adverse visual impact as the property is viewed from neighbouring dwellings and public places, and which is contrary to the controls in the KDCP 2012. Mr Randall and Mr Hitchcock opine that the principal dwelling causes an adverse impact by featuring prominently within views to the Illawarra escarpment due to its conspicuous scale, high location within the landscape and confusedly complex architectural character. The evidence is that there is a clear line of sight to the principal dwelling from the North along Jamberoo Road, the North-East from Croome Vale Road, and from the south from a small portion of Minnamurra Lane. Based on a view analysis, Mr Hitchcock considers that views from the residential dwellings located along those roads and from the public users of the road will be disrupted by the principal dwelling. Mr Tang's position on bulk and scale 1. Mr Tang's position, instead, is that the objective to maintain the rural landscape character must be considered in light of how the proposed development is perceived in that landscape. In circumstances where the farm stay accommodation is not visible from a public place, where the dwelling can only be seen from three locations and where there are other developments that are disruptive to the rural character, Mr Tang submits that there can be no adverse impact on that rural character. 2. In support of this position, Mr Tang relies on the evidence of Mr Harris and Mr Irwin. In responding to the concerns with respect to bulk and scale, they point out that the proposed dwelling complies with the control C1 in Chapter 6 Section 1 of the KDCP 2012 for it to be 8.5m in height. Further, they point out that there is no control in the KDCP 2012 with respect to the maximum floor area or building width. Mr Irwin opines that the proposed dwelling is not confused architecturally but is instead designed with recessive darker tones, and the scale and mass of the façade has been mitigated through various modulation and articulation. With respect to the design of the principal dwelling, his evidence can be summarised as follows: * Multiple gable and hip roof forms have been placed at different heights to break up the bulk of the dwelling (Ex 10 p 13). * The western elevation presents as one-storey, and the south and north elevations grade from one-storey to two-storey, and back to one-storey. The grading between scales enables the dwelling to integrate into the topography rather than being perceived as four-storey (Ex 10 p 13). * The location of the roof ridge of the dwelling is 24.5m vertically below the top of the hill ridge, and the dwelling is located approximately half way between the ridge of the hill and the tree line, which reduces its visual prominence in the landscape but allows the occupant ocean views (Ex 10 p 15). * The design seeks to mix both classic luxury and rural elements to respect the rural existing context and meet the amenity requirements (Ex 10 p 19). * The character and architectural style is consistent with the character of existing dwellings in the area, and its materiality of weatherboard, render, stone and colourbond are all appropriate within the local rural context, and have colours and materials that are darker in tones so that the dwelling will be recessive in the landscape (Ex 10 p 19). * Two proposed landscaping banks to the north of the dwelling will screen part of the eastern edge and soften and integrate the dwelling into the site as viewed from the north along Jamberoo Road and Croome Vale Road (Ex 10 p 23). * The 3m stone wall provides a podium for patio areas, and is landscaped at its base to soften the already articulated design (Ex 10 p 27). 1. With respect to the bulk and scale of the development, Mr Harris opines that the buildings are clustered on the site in three separate clusters, consistent with the controls in the KDCP 2012. He also points out that the farm stay accommodation cannot be seen, and that the dwelling does not breach the crest of the ridge. 2. In considering the rural landscape character of the area, Mr Harris and Mr Irwin consider that the current character is not easily described or defined. They opine that the immediate surrounding built form varies significantly and includes a mix of single and double storey dwellings with a mix of styles. Mr Harris opines that the surrounding visual context is also impacted by the Jamberoo Action Park, the Boral Mine site and some existing dwellings that are large in footprint size and/or sited on the crests of hills. In particular, they point out that Jamberoo Action Park is highly visible from Minnamurra Lane and forms part of that visual catchment, and is located on the side of a hill in the same manner as the proposed principal dwelling. Considered in this context, Mr Harris and Mr Irwin opine that the proposal is generally compatible with the existing rural character of the locality. 3. With respect to the visual impact of the development, Mr Harris and Mr Irwin point out that the farm stay accommodation cannot be seen and that there are limited locations that the principal dwelling can be viewed in context with the Illawarra escarpment. As a result of its design (the elements of which are described above at [89]), Mr Irwin opines that the scale of the building will not be a dominant element that causes an adverse visual impact or that disrupts the scenic amenity. Mr Harris also considers that the dwelling does not cause a loss of views from neighbouring properties to the water or of a significant vista. The bulk and scale of the principal dwelling is unacceptable 1. Whilst I acknowledge that the controls in the KDCP 2012 do not regulate the floor area or width at the front building line with respect to residential dwellings on rural sites, C8 of Section 1 of Chapter 6 provides a clear mandate for "Dwellings and ancillary development in rural areas [to] be carefully and sensitively sited and designed to compliment [sic] landscape rather than become conspicuous built elements in the landscape." I consider that this control is not met by the principal dwelling because of the combined effect of its siting on the side of the ridge (albeit below the top of the ridge), its large floor area and footprint, its building footprint width and its large wings of 3m high walls. As a result of that combined effect, the dwelling does not complement landscape and is a conspicuous building in the landscape. 2. Although a flexible approach to the controls of the KDCP 2012 is required by s 4.15(3A) of the EPA Act, I consider that the combined impact of the siting, footprint width, large floor area and footprint, and wall height prevents the dwelling from achieving the objects of the standards for this aspect of the development. Specifically, I accept the evidence of Mr Randall and Mr Hitchcock that the dwelling does not "protect and maintain Kiama's scenic rural landscapes and low density rural residential character." I accept the evidence of Mr Randall that the rural residential character in the context of the site has a number of key defining characteristics that include modest scale dwellings of one and two storeys in height, and farm buildings generally clustered together. I consider that these modest scale dwellings are set within an expanse of rural landscape. I accept that by the size of the floor area of the principal dwelling (800% larger in floor area than the existing average of the low density dwellings), the large building footprint width (325% longer than the average dwelling length in the area), and the large wings and wall height, it stands in stark contrast to the low density rural residential character and, by its prominent siting on the side of the grassed ridge, could not be said to "protect and maintain" that character. For the same reasons, I accept that it is disruptive in the scenic rural landscape as perceived from Jamberoo Road and Croome Vale Road. 3. Whilst Jamberoo Action Park is within the immediately locality, I accept that it is in a different visual catchment, except when viewed from Minnamurra Lane. Nevertheless, the Jamberoo Action Park is a distinct use from a dwelling and sits low on the ridge on which it is sited. I accept the opinion of Mr Randall that the key defining character elements of the low density residential area cannot be drawn from the Jamberoo Action Park or the Boral quarry, which are a different form of development to residential dwellings and were approved prior to the KLEP 2011. They are therefore not representative of the desired low density residential character of the visual catchment for the site. Further, none of the other dwellings identified by Mr Harris (in Ex 10 Attachment 4) have a footprint that is comparable to the proposed principal dwelling. Therefore, neither the non-residential uses, nor the dwellings in Attachment 4, are contrary to my description of the current low density residential character as one that is of modest scale dwellings of one and two storeys in height that complement the rural landscape, against which the proposed principal dwelling standards in contrast. 4. Contrary to the submission of Mr Tang, merely because the principal dwelling will be seen in only 3 locations from a distance, does not mean that it is acceptable for it to be designed so significantly in contrast to the low density rural residential character. Instead, there is a public interest in maintaining the desired future character as expressed in the KDCP 2012 (which is to maintain and protect Kiama's existing scenic rural landscapes and low density rural residential character), even when there are limited places from which that character can be perceived. 5. I do not accept that the bulk and scale is adequately mitigated by the proposed landscaping. Instead, I accept the evidence of Mr Randall that the landscaping does not adequately screen the development because of the mature height of the landscaping and the topography of the site. 6. The use of different materials and the articulation of the building, whilst providing visual interest, does not mitigate the perception of the significant bulk and scale of the dwelling occasioned by the combined impact of its large floor area and footprint, its wide frontage, its siting on the side of the ridge, and the wall height. 7. As such, the siting and scale of the proposed principal dwelling does not meet the requirement of the controls (in C8 of Section 1) for it to be designed and sited so as not to be conspicuous in the landscape, and does not meet the objective (in Section 1) to protect and maintain Kiama's scenic rural landscapes and low density rural residential character. Instead, it is conspicuous in the landscape and disruptive to the scenic rural vistas across the locality. The proposed development should be refused on this basis also. Outcome of the appeal 1. I have determined, therefore, that the development application should be refused on the basis of the potential impact of the farm stay accommodation on Aboriginal cultural heritage, and on the basis that the footprint size, frontage width, siting on the side of the ridge, and wall height of the principal dwelling has the combined impact of failing to protect and maintain Kiama's low density rural residential character and scenic rural landscapes. 2. I therefore need not consider the remaining contentions concerning consistency of the proposed development with the objectives of the RU2 Rural Landscape zone, in particular whether the proposed development protects agricultural land for long term agricultural production. 3. The Court orders that: 1. The appeal is dismissed. 2. The development application for the demolition of an existing dairy and the construction of a 3-storey principal dwelling house, a secondary dwelling house, farm-stay accommodation comprising 5 self-contained buildings, a reception building and hay and tractor sheds at Lot 12 DP 866128 is refused. 3. The exhibits are returned, except for Exhibits A and 10. ……………………… J Gray 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: 04 October 2019