Our Concern
The Berry township is surrounded by a beautiful landscape, zoned RU1/RU2 and E2/E3, which is valued by both residents and tourists. However, this environmentally productive setting is threatened by uncontrolled development of tourist accommodation, which can include clusters of residence-sized buildings exceeding 200m2 in size. Boutique hotels, prohibited in these zones, can also be constructed.

This is a case of killing the goose that lays the golden egg. The threat to Berry is an example of the impact of a loophole in the LEP that will manifest itself across NSW, with unintended consequences.

Cause of the Problem
The LEP currently only addresses tourist cabins when used for Farm Stay accommodation, which is a sub-set of the group term ‘Tourist & Visitor accommodation’. However, farm stay accommodation must be a secondary business to primary production, with a maximum of 7 bedrooms. For other situations, the Department has chosen to view tourist cabins as an innominate use, under the ‘tourist & visitor accommodation’ group term. However, the introduction of this band-aid solution without any scaling controls has had unintended consequences, as there is –

– No limit to the number of tourist cabins that can be constructed on a piece of land

– No definition of a tourist cabin (eg freestanding, of rural appearance)

– No maximum size.

Exploitation of the Gap in the LEP
As it stands, there is nothing to prevent an applicant circumventing the provisions of the LEP by changing the description of an application for farm stay accommodation or a boutique hotel, to ‘tourist & visitor accommodation’ to obtain permissibility. A local planning has recently submitted a DA for farm stay tourist cabins (which would not qualify as a secondary business), under the group term ‘tourist & visitor accommodation’. In the application it is stated –

“Tourist cabins are not specifically separately defined by the SLEP 2014 and it is considered unnecessary to define the development beyond the broad group term.”

The Department’s Position
We remain confused by different interpretations of the ‘tourist & visitor accommodation’ definition espoused by senior members of the Department.

The fact that senior members of the Department hold contradictory views, and planning firms are exploiting the band-aid solution, clearly demonstrates that the Standard Instrument LEP contains inadequate guidance for councils in this area and that the situation must be remedied.

Potential Solutions to Close the Loophole
Some councils are addressing the issue by including statements in their DCPs. Some also include parameters around the maximum number and size of tourist cabins. However, the parameters have no consistency, with several councils specifying a maximum size of 50m2, whilst Shoalhaven Council allows 120m2. These parameters have been rendered meaningless however, by a recent L&E Court ruling that allowed a massive 195m2 for a ’tourist cabin’ with all the hallmarks of a residence.

The only way to realistically address the problem is to make a small amendment to the standard LEP – – The definition of ‘tourist & visitor accommodation’ could have the word ‘any’ changed to ‘only’.

– Tourist cabins could be added to the list under ‘tourist & visitor accommodation

– A definition of tourist cabins could be included in the Dictionary

– Scaling parameters for tourist cabins could be included under Clause 5.4.