Over the last five years, Berry and Kangaroo Valley rural residents have been threatened with significant loss of amenity due to the exploitation of the rural landscape for profit. Their frustration has been compounded by serious uninformed and factually incorrect Council actions (see attachment).

The exploitation has been facilitated by inadequacies in Council’s planning provisions, resulting in multiple communities being forced to rapidly mount very costly, time-consuming campaigns to protect landscapes and amenity from inappropriate development of tourist accommodation and function centres.

In assisting residents with understanding relevant legislation and Council processes, research conducted by the Forum identified the root causes of the planning inadequacies as being  –

  • loopholes and inadequate wording in the state-wide Standard Instrument LEP (SILEP) and the Shoalhaven LEP (SLEP) and
  • poorly constructed sections of the Shoalhaven DCP (SDCP).

SILEP and SLEP Loopholes

  • To promote tourism, SCC included the group term ‘tourist & visitor accommodation’ (TVA) in SLEP 2014 to provide flexibility for approving tourist cabins and other innominate uses. However, this ‘flexibility’ is being misused to circumvent LEP Dictionary definition constraints and Clause 5.4 scaling controls in rural zones, and SCC has no ability to defend appeals against refusal of DAs in the LEC.
  • SILEP Clause 5.4 controls specify the maximum number of bedrooms for tourist accommodation, but only for Farm stay (7) and Bed & Breakfast accommodation (5), not tourist or eco-tourist cabins/units.
  • SILEP Clause 5.13(3g) does not permit eco-tourist cabins to be sited above ridgelines and against escarpments, but there are no restrictions on the siting of tourist cabins/units or farm stay cabins.
  • The SILEP contains no limits on the size of a building for any form of tourist accommodation. SCC staff recently proposed a floor area limit of 60m2 for a farm stay building in an Agritourism optional clause.
  • The Shoalhaven LEP Clause 4.2A permits subdivision of rural land below the minimum lot size of 40ha, for the purpose of tourist accommodation This clause invites subdivision by stealth.

SDCP (Ch. G15) Weaknesses

  • Density – the SDCP specifies the number of tourist cabins allowed per hectare (based on the 1985 concept of one-bedroom cabins) but with no maximum number. 21 cabins are ‘permitted’ on a 40ha lot. If each ‘cabin’ contained 2 ‘units’, each with 2 bedrooms, more than 150 guests would be allowed.
  • When the LEC refused the Rockfield Park RA14/1004 in 2017, it supported the SCC staff assessment (aligned with SLEP Clause 5.4) that a bedroom should be the base unit for assessing ‘tourist cabin’ density. However, that precedent has since been ignored by Council Development staff.
  • Cabin size -The SDCP ‘maximum floor area’ of 120sqm is almost double the size permitted by other NSW councils. However, a 195sqm cabin (63% variation) was allowed in Berry on appeal at the LEC.
  • Ambiguous and inadequate references in the DCP Dictionary for cabins, tourist accommodation units and tourist resorts (with “functions space”) are open to interpretation and exploitation.

Recent Examples of Local Communities under Threat

  • Bong Bong Rd, Berry – tourist resort accommodating 60 guests with a function centre.
  • Tea Tree Ln, North Nowra – 50 tourist accommodation units and 28 lot subdivision.

Outcome of Meetings with NSW Planning Ministers and DPE
Over a period of four years, the Forum Committee lobbied senior DPE officials and Planning Ministers to get the TVA loophole removed from the SILEP, culminating in a meeting with Minister Stokes in October 2019. He welcomed the Forum’s initiative but advised that a DPE state-wide survey of councils showed the adverse impacts of the loopholes were largely confined to the Shoalhaven.

The DPE survey aligned with our own concurrent analysis of every council LEP in NSW, which identified that 80% do not include the group term TVA in rural and environmental zones. In fact, SCC is the only council in NSW that includes the group term TVA as a permitted use in all RU1, RU2 & E3 zones.

Minister Stokes recommended that SCC propose amendments to SLEP to address the unintended impacts of its use of the group term TVA and offered his support with prioritising the DPE’s review. He also requested consistency in the treatment of all types of cabins (eg tourist, farm stay & eco-tourist).

However, when we reviewed all DAs lodged in the Shoalhaven area in the 20-months to December 2020 for tourist development in rural zones, we found that 87% were located around Berry/ Kangaroo Valley. We therefore decided that it would be more appropriate to confine our proposals to only those areas.

Proposal to Expand SLEP Part 7 ‘Additional Local Provisions’ for Tourist Development

Clause 7.30 – Tourist Development around Berry and Kangaroo Valley

    1. The objective of this clause is to protect the natural environmental and scenic amenity of the Berry and Kangaroo Valley areas and to manage the impacts of tourist development on communities and sensitive locations.
    2. This clause applies to land zoned RU1, RU2 & C3 identified as “Cl xx” on the Clauses Map.
    3. Despite any other provision of this Plan, if development for the purposes of tourist and visitor accommodation, agritourism, eco-tourism or camping grounds is permitted under this Plan on land to which this clause applies, the accommodation must –

– consist of no more than 6 bedrooms or individual tent sites
– be clustered close to the owner’s or manager’s residence and be supervised at all times
– require a minimum Lot area of 5 hectares for each bedroom/ tent site
– be within a building(s) with a gross floor area not exceeding 60 square metres (this limit also applies to any communal building
– be located to avoid any visibility above ridgelines and against escarpments
– be set back a minimum 50m from all boundaries and 200m from any dwelling located on an adjoining lot.

These conditions also apply to existing dwellings/garages/sheds that are to be converted to any form of tourist accommodation.

4. Despite any other provision of this Plan, if development for the purposes of holding functions is permitted under this Plan on land to which this clause applies (including, but not limited to, Clause 2.8, Clause 5.10 or Agritourism Farm experience/gate premises) there must be an absence of adverse impact on any adjoining land or the amenity of the neighbourhood.

Other Recommendations

    • Clause 4.2A should be removed from the SLEP
    • SLEP Schedule 1 ‘Additional Permitted Uses’ to be used for a special requirement in a specific area.
    • Remove references to Tourist Resorts from the SDCP.