The Land & Environment Court has overturned the refusal of the Mt Hay development application by our elected councilors. The decision sets a dangerous precedent in relation to future developments around Berry, due to an LEP planning loophole.

Mt Hay Development Proposal

In 2013 the applicant constructed five tourist accommodation units on a prominent ridge-line on the escarpment overlooking the town. In December 2014, the applicant applied to build an additional very large tourist accommodation unit 100m along the ridge-line from the existing buildings.There were 219 objections to the application and none in support.

In June last year and again in November, Council Staff recommended approval of the structure, but on both occasions our elected Councilors refused the application on the following grounds:
– The visual impact of the proposed structure, sited on the escarpment, contravened the objectives of the Local Environment Plan (LEP) for properties zoned E3.
– The proposed structure was the size of a residence and exceeded the maximum permissible size in the Development Control Plan (DCP) by 62%.
– The residential structure would be located on a prominent ridge-line and knoll, contrary to the performance criteria in the DCP.
– The adverse impact of the proposed development on the public interest.

Land & Environment Court Hearing
The applicant lodged an appeal with the Court, which resulted in the Commissioner overturning the refusal of the development.
It is the view of the Committee that this occurred for the following reasons:

  1. Council’s lawyer based his defence on scenic/visual impact contravening the LEP objectives, but inexplicably did not provide any photographic evidence to demonstrate the significant visual impact of the existing buildings.
  2. This glaring omission would have been identified if the Forum had been given access to the lawyer’s report two weeks before the hearing, when it was handed to the applicant’s lawyer. However, the lawyer said Council would not permit the report to be seen by the Forum Committee.

It is worth noting that the Committee members who attended the hearing were concerned that the Council’s lawyer appeared unprepared and confused.

The process for the Mt Hay development application is now complete and the development will go ahead. However the Forum Committee is left wondering about the impact on the integrity of the LEP and the lack of rigour of the process. In particular, we are extremely concerned about the precedent this has now set for future development in the Berry area.

Setting a Dangerous Precedent

The Local Environment Plan, or LEP, is a statewide statutory instrument which specifies what land uses are permissible in particular zones. Most of the land around Berry is zoned as RU1 (Primary Production), RU2 (Rural Landscape), or E3 (Environmental Management).

Listed in land uses ‘Permitted with Consent’ for RU1, RU2 and E3 is a group term ‘tourist & visitor accommodation’, which is defined in the LEP as including Backpackers, Bed and Breakfast, and Farm Stay accommodation.

The Loophole

  • The Committee now believes there is a loophole in the permissible use definitions of the LEP, which can be exploited by developers.
  • The Mt Hay landowner described his application as ‘Farm Stay’ accommodation in a letter to Council. However this use would not have been permissible as the LEP states that ‘Farm Stay’ accommodation must be “on a working farm as a secondary business to primary production.”
  • To obtain permissibility, the planning firm used the generic description ‘tourist & visitor accommodation’, rather than ‘Farm Stay’. In this way, the application was able to avoid a genuine consideration of land use under the LEP.
  • The Committee is concerned that another DA has been already submitted in Strongs Rd (which is zoned RU1). The description of the proposed tourist accommodation again aligns with the LEP definition of Farm stay. However, the landowner is using the same local planning firm as the Mt Hay development and again they have used the generic description ‘tourist & visitor accommodation’ to achieve permissibility.
  • Coincidentally, both applications have also included five tourist cabins, which is the minimum number required to apply for a community title sub-division.
  • In the case of Mt Hay, the existing tourist resort constructed three years ago is being advertised by the owner as a Boutique Hotel, comprising five luxury suites and a 33m heated indoor swimming pool. Under the LEP, hotels are prohibited in an E3 zone, but again the generic description ‘tourist & visitor accommodation’ is being used.

The Issue at Stake

  • The LEP is a critical planning safeguard, which should provide protection for communities and the environment against opportunistic developers.
  • The Committee believes that by having their real use disguised under the generic description of ‘tourist & visitor accommodation’, development applications are able to circumvent the LEP.
  • The Committee is concerned about exploitation of this loophole in the LEP not just in the Berry area, but potentially across NSW.

Action Required

  • The Committee has written to the Planning Minister, Rob Stokes, via Gareth Ward, raising the matter as a statewide issue needing his intervention.
  • If you share our concern about the potential future ramifications of this situation we encourage individual residents to write to the State Planning Minister, Rob Stokes.